Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Rural Business-Cooperative Service
Rural Housing Service
Engineers Corps
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Engineers Corps
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Commission of Fine Arts
Centers for Disease Control and Prevention
Substance Abuse and Mental Health Services Administration
Coast Guard
Customs and Border Protection Bureau
Fish and Wildlife Service
Indian Affairs Bureau
Minerals Management Service
Drug Enforcement Administration
Federal Aviation Administration
Federal Railroad Administration
Maritime Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the Oriental fruit fly regulations by removing a portion of Los Angeles County, CA, from the list of quarantined areas and by removing restrictions on the interstate movement of regulated articles from this area. This action is necessary to relieve restrictions that are no longer needed to prevent the spread of the Oriental fruit fly into noninfested areas of the United States. We have determined that the Oriental fruit fly has been eradicated from this portion of Los Angeles County, CA, and that the quarantine and restrictions are no longer necessary.
This interim rule was effective March 1, 2005. We will consider all comments that we receive on or before May 6, 2005.
You may submit comments by any of the following methods:
• EDOCKET: Go to
• Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 04-106-2, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 04-106-2.
• Federal eRulemaking Portal: Go to
Mr. Wayne D. Burnett, National Fruit Fly Program Manager, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-4387.
The Oriental fruit fly,
The Oriental fruit fly regulations, contained in 7 CFR 301.93 through 301.93-10 (referred to below as the regulations), were established to prevent the spread of the Oriental fruit fly into noninfested areas of the United States. The regulations also designate soil and a large number of fruits, nuts, vegetables, and berries as regulated articles.
In an interim rule effective on November 9, 2004, and published in the
Based on trapping surveys conducted by inspectors of California State and county agencies and by inspectors of the Animal and Plant Health Inspection Service, we have determined that the Oriental fruit fly has been eradicated from the quarantined portion of Los Angeles County. The last finding of Oriental fruit fly in this quarantined area was August 30, 2004.
Since then, no evidence of Oriental fruit fly infestation has been found in this area. Based on our experience, we have determined that sufficient time has passed without finding additional flies or other evidence of infestation to conclude that the Oriental fruit fly no longer exists in Los Angeles County, CA. Therefore, we are removing the entry for this county from the list of quarantined areas in § 301.93-3(c).
Immediate action is warranted to relieve restrictions that are no longer necessary. A portion of Los Angeles County, CA, was quarantined due to the possibility that the Oriental fruit fly could spread from this area to noninfested areas of the United States. Since we have concluded that the Oriental fruit fly no longer exists in this county, immediate action is warranted to remove the quarantine on Los Angeles County, CA, and to relieve the restrictions on the interstate movement of regulated articles from this area. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This action amends the Oriental fruit fly regulations by removing a portion of Los Angeles County, CA, from the list of quarantined areas.
County records indicate there are approximately 23 nurseries, 27 farmers markets, 4 certified growers, 3 mobile vendors, and 152 fruit sellers within the quarantined portion of Los Angeles County that could be affected by the lifting of the quarantine in this interim rule.
We expect that the effect of this interim rule on the small entities referred to above will be minimal. Small entities located within the quarantined area that sell regulated articles do so primarily for local intrastate, not interstate, movement, so the effect, if any, of this rule on these entities appears likely to be minimal. In addition, the effect on any small entities that may move regulated articles interstate has been minimized during the quarantine period by the availability of various treatments that allow these small entities, in most cases, to move regulated articles interstate with very little additional cost. Thus, just as the previous interim rule establishing the quarantined area in Los Angeles County, CA, had little effect on the small entities in the area, the lifting of the quarantine in the current interim rule will also have little effect.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This rule has been reviewed under executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
Rural Housing Service, USDA.
Withdrawal of direct final rule.
The Rural Housing Service (RHS) is withdrawing the direct final rule to change the threshold for surety requirements, published on January 7, 2005 (70 FR 1325-26). RHS stated in the direct final rule that if it received adverse comments by March 8, 2005, the agency would publish a timely notice of withdrawal in the
Michel Mitias, Technical Support Branch, Program Support Staff, Rural Housing Service, U.S. Department of Agriculture, STOP 0761, 1400 Independence Avenue SW., Washington, DC 20250-0761; Telephone: 202-720-9653; FAX: 202-690-4335; E-mail:
RHS published a direct final rule amending its regulations to change the threshold for surety requirements guaranteeing payment and performance from a $100,000 contract amount to the maximum Rural Development Single Family Housing area lending limit. RHS received adverse comments on this direct final rule. Therefore, the agency is withdrawing the direct final rule. The regulations addressing surety requirements will not take effect on April 7, 2005.
Agriculture, Construction management, Construction and repair, Energy conservation, Housing, Loan programs—Agriculture, Low and moderate income housing.
Federal Aviation Administration (FAA), DOT.
Direct final rule; request for comments.
This action amends Title 14 Code of Federal Regulations, part 71 (14 CFR 71) by revising Class E airspace at Macon, MO. A review of controlled airspace currently titled Macon-Fower, MO revealed it does not conform to proper format, does not reflect the correct name of the airport nor its correct airport reference point (ARP) and does not comply with criteria for 700 feet above ground level (AGL) airspace required for diverse departures. The area is renamed, modified and enlarged to conform to the criteria in FAA Orders.
This direct final rule is effective on 0901 UTC, July 7, 2005. Comments
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2005-20066/Airspace Docket No. 05-ACE-8, at the beginning of your comments. You may also submit comments on the Internet at
Brenda Mumper, Air Traffic Division, Airspace Branch, ACE-520A, DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2524.
This amendment to 14 CFR Part 71 modifies the Class E airspace area extending upward from 700 feet above the surface currently titled “Macon-Fower, MO”. In order to conform to proper format, the airspace area is renamed “Macon, MO”. The airport at Macon, MO is incorrectly identified as “Macon-Fower Municipal Airport” and its ARP is not accurate. This action amends the airport name in the legal description to “Macon-Fower Memorial Airport” and corrects the ARP. An examination of controlled airspace for Macon-Fower Memorial Airport revealed it does not meet the criteria for 700 feet AGL airspace required for diverse departures as specified in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The criteria in FAA Order 7400.2E for an aircraft to reach 1200 feet AGL, taking into consideration rising terrain, is based on a standard climb gradient of 200 feet per mile plus the distance from the airport reference point to the end of the outermost runway. Any fractional part of a mile is converted to the next higher tenth of a mile. This amendment expands the airspace area from a 6.4-mile radius to a 6.5-mile radius of Macon-Fower Memorial Airport and brings the legal description of the Macon, MO Class E airspace area into compliance with FAA Order 7400.2E. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Interested parties are invited to participated in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-20066/Airspace Docket No. 05-ACE-8.” The postcard will be date/time stamped and returned to the commenter.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significantly regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedure and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it contains aircraft executing instrument approach procedures to Macon-Fower Memorial Airport.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Macon-Fower Memorial Airport.
Bureau of Industry and Security (BIS), Commerce.
Final rule.
This rule revises the Defense Priorities and Allocations System to allow a person rejecting a rated order to give his or her reasons for the rejection through electronic means rather than requiring a person to submit the rationale in writing.
This rule is effective April 6, 2005.
Mr. Eddy Aparicio, Office of Strategic Industries and Economic Security, Room 3876, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone; (202) 482-8234, or e-mail;
Under Title I of the Defense Production Act of 1950, as amended, (50 U.S.C. App. 2061
Originally published in 1984, the DPAS regulations were revised on June 11, 1998 (63 FR 31918), to update, streamline, and clarify a number of provisions. The purpose of the DPAS is to assure the timely availability of industrial resources to meet current national defense and emergency preparedness program requirements, including critical infrastructure protection and restoration, as well as provide an operating system to support rapid industrial response in a national emergency. In pursuit of the DPAS mission, the Department of Commerce endeavors to minimize disruptions to the normal commercial activities of industry.
An integral component of DPAS is a system of “rated orders.” Prior to the effective date of this rule, recipients of rated orders who rejected such orders were required to furnish the reasons for rejection in writing and not electronically. This rule provides that such reasons may be furnished either in writing or electronically.
BIS published a notice of proposed rulemaking in the
1.
2.
3.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the PRA unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. These collections have been approved by the OMB under control number 0694-0092, “Procedures for Acceptance or Rejection of a Rated Order,” which carries a burden hour estimate of 1 to 15 minutes per response. This rule results in an overall reduction of approximately five minutes for the one percent of respondents who reject rated orders they receive.
4.
Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements, Strategic and critical materials.
Titles I and VII of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061,
(d)
Bureau of Industry and Security, Commerce.
Interim final rule with request for comments.
This rule states BIS's licensing policy regarding transactions involving entities sanctioned by the State Department under three specified statutes, imposes a new license requirement for certain entities sanctioned by the State Department, and identifies one specific entity subject to this new license requirement, Tula Instrument Design Bureau of Russia.
This rule is effective March 7, 2005. Comments must be received by May 6, 2005.
Comments may be submitted by e-mail to
William Arvin, Regulatory Policy Division, Office of Exporter Services at
Several statutes authorize or require the United States Government to impose export sanctions on entities if such entities have engaged in activities that contribute to the proliferation of weapons of mass destruction or are otherwise contrary to the foreign policy interests of the United States. This rule sets forth BIS's licensing policy for entities subject to sanctions imposed by the State Department under the Iran-Iraq Arms Nonproliferation Act of 1992 (Pub. L. 102-484), the Iran Nonproliferation Act of 2000 (Pub. L. 107-178) and section 11B(b)(1) of the Export Administration Act of 1979 (also known as the Missile Technology Control Act of 1990). This rule also imposes a new license requirement for certain entities sanctioned by the State Department, and identifies one specific entity, Tula Instrument Design Bureau of Russia, subject to this new license requirement.
This rule amends the Export Administration Regulations (EAR) by adding new § 744.19 to set forth explicitly BIS's licensing policy regarding entities sanctioned by the State Department under the authority of three statutes. Specifically, new § 744.19 provides that BIS's policy is to deny any export or reexport license application if the applicant, other party authorized to receive the license, purchaser, intermediate consignee, ultimate consignee, or end-user is subject to: (1) A sanction issued pursuant to the Iran-Iraq Arms Nonproliferation Act of 1992 (Pub. L. 102-484) that prohibits the issuance of any license for any export by or to the sanctioned person or, (2) a sanction issued pursuant to the Iran Nonproliferation Act of 2000 (Pub. L. 107-178) that prohibits the granting of a license for the transfer to foreign persons of items, the export of which is controlled under the Export Administration Regulations, or (3) a sanction issued pursuant to section 11B(b)(1)(B)(ii) of the Export Administration Act of 1979, as amended (also known as the Missile Technology Control Act of 1990), that prohibits the issuance of new licenses for exports to the sanctioned entity of items controlled pursuant to the Export Administration Act of 1979. In addition, § 744.19 sets forth BIS's policy to deny any export or reexport application for items listed on the Commerce Control List with missile technology (MT) listed as a reason for control if any entity subject to a sanction issued pursuant to section 11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended, is a party to the transaction. Section 11B(b)(1)(B)(i) prohibits the issuance of new individual licenses for exports to the sanctioned entity of MTCR annex equipment or technology controlled pursuant to the Export Administration Act of 1979.
The State Department publishes notices of the imposition of sanctions under these three statutes in the
This rule adds new § 744.20 to the EAR to provide that BIS may impose, as new foreign policy controls, license requirements on exports and reexports of items subject to the EAR to entities sanctioned by the State Department. Such license requirements are in addition to those imposed by other provisions of the EAR. Decisions to impose such license requirements will be made on a case-by-case basis. In determining whether to impose license requirements pursuant to § 744.20, BIS will consider the nature of the action that led to the State Department sanction and whether, because of that action, such sanctioned parties would not be reliable parties to export or reexport transactions subject to the EAR.
License requirements imposed pursuant to § 744.20 are foreign policy controls imposed pursuant to the provisions of § 6 of the Export Administration Act of 1979. License requirements pursuant to § 744.20 will be imposed by adding the sanctioned entity to the Entity List (Supplement No. 4 to part 744). The Entity List entry will also refer to § 744.20, state the license requirements that apply to the entity, what license exceptions, if any, are available, and the licensing policy that applies to the entity.
This rule imposes a license requirement under new § 744.20 for exports or reexports to Tula Instrument Design Bureau (all locations including at Tula 300001, Russia) of the government of the Russian Federation (Tula) for all items subject to the EAR having a classification other than EAR99, prohibits use of any License Exception for such exports or reexports, and imposes a general policy of denial for all license applications to export or reexport to Tula. The rule adds Tula to the Entity List (Supplement No. 4 to part 744 of the EAR).
On April 21, 1999, the State Department found,
This action is a new foreign policy control imposed pursuant to the requirements of § 6 of the Export Administration Act and requires a report to Congress. The report was delivered to Congress on February 25, 2005.
Although the Export Administration Act of 1979 (EAA), as amended, expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)) as extended by the Notice of August 6, 2004, 69 FR 48763 (August 10, 2004), continues the EAR in effect under the International Emergency Economic Powers Act (IEEPA).
Exports and reexports that did not require a license or that were eligible for a License Exception prior to publication of this rule and for which this rule imposes a new license requirement or removes that License Exception availability may be made without a license or under that License Exception if the items being exported or reexported were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export pursuant to actual orders for export or reexport on or before March 22, 2005, and exported or reexported on or before April 6, 2005. Any such exports or reexports not meeting those deadlines require a license in accordance with this rule.
1. This rule has been determined not to be significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
BIS is seeking public comments on this interim final rule. The period for submission of comments will close May 6, 2005. BIS will consider all comments received on or before that date in developing any final rule. Comments received after that date will be considered if possible, but their consideration cannot be assured. BIS will not accept public comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. BIS will return such comments and materials to the persons submitting the comments and will not consider them in the development of the final rule. All public comments on this proposed rule must be in writing (including fax or e-mail) and will be a matter of public record, available for public inspection and copying. The Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce, displays these public comments on BIS's Freedom of Information Act (FOIA) Web site at
Exports, Reporting and recordkeeping requirements, Terrorism.
50 U.S.C. app. 2401
(a)(1)
(c) * * * No License Exceptions are available for exports and reexports to listed entities of specified items, except License Exceptions for items listed in § 740.2(a)(5) of the EAR destined to listed Indian or Pakistani entities to ensure the safety of civil aviation and safe operation of commercial passenger aircraft, and in the case of entities added to the Entity List pursuant to § 744.20, to the extent specified on the Entity List.
Notwithstanding any other licensing policy elsewhere in the EAR, BIS will deny any export or reexport license application if the applicant, other party authorized to receive a license, purchaser, intermediate consignee, ultimate consignee, or end-user is subject to one or more of the sanctions described in paragraphs (a), (b), and (c) of this section and will deny any export or reexport license application for an item listed on the Commerce Control List with a reason for control of MT if such party is subject to a sanction described in paragraph (d) of this section.
(a) A sanction issued pursuant to the Iran-Iraq Arms Nonproliferation Act of 1992 (Public Law 102-484) that prohibits the issuance of any license to or by the sanctioned entity.
(b) A sanction issued pursuant to the Iran Nonproliferation Act of 2000 (Public Law 106-178) that prohibits the granting of a license for the transfer to foreign entities of items, the export of which is controlled under the Export Administration Act of 1979 or the Export Administration Regulations.
(c) A sanction issued pursuant to section 11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended, and as carried out by Executive Order 13222 of August 17, 2001, that prohibits the issuance of new licenses for exports to the sanctioned entity of items controlled pursuant to the Export Administration Act of 1979.
(d) A sanction issued pursuant to section 11B(b)(1)(B)(ii) of the Export Administration Act of 1979, as amended (Missile Technology Control Act of 1990), and as carried out by an Executive Order 13222 of August 17, 2001, that prohibits the issuance of new licenses for exports to the sanctioned entity of MTCR Annex equipment or technology controlled pursuant to the Export Administration Act of 1979.
BIS may impose, as foreign policy controls, export and reexport license requirements and set licensing policy with respect to certain entities that have been sanctioned by the State Department. Such license requirements and policy are in addition to those imposed elsewhere in the EAR. License requirements and licensing policy may be imposed pursuant to this section even when the sanction and the legal authority under which the State Department imposed the sanction do not require or authorize the imposition of any license requirement or licensing policy. License requirements and licensing policy will be imposed pursuant to this section by adding an entity to the Entity List in accordance with paragraphs (a), (b), and (c) of this section.
(a)
(b)
(c)
U.S. Customs and Border Protection; Department of Homeland Security; Department of the Treasury.
Interim regulations; solicitation of comments.
This document amends the Customs and Border Protection (“CBP”) Regulations on an interim basis to implement the preferential tariff treatment and other customs-related provisions of the United States-Chile Free Trade Agreement entered into by the United States and the Republic of Chile.
Interim rule effective March 7, 2005; comments must be received by June 6, 2005.
You may submit comments, identified by the Regulatory Information Number (“RIN”) and/or by the title “United States-Chile Free Trade Agreement,” by
• EPA Federal Partner EDOCKET Web Site:
• Federal eRulemaking Portal:
• Mail, hand delivery or courier: paper, disk or CD-ROM submissions may be mailed or delivered to the Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229.
On June 6, 2003, the United States and the Republic of Chile (the “Parties”) entered into an agreement, the U.S.-Chile Free Trade Agreement (“US-CFTA”). The stated objectives of the US-CFTA are to: Encourage expansion and diversification of trade between the Parties; eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between the territories of the Parties; promote conditions of fair competition in the free trade area; substantially increase investment opportunities in the territories of the Parties; provide adequate and effective protection and enforcement of intellectual property rights in each Party's territory; create effective procedures for the implementation and application of the US-CFTA, for its joint administration and for the resolution of disputes; and establish a framework for further bilateral and multilateral cooperation to expand and enhance the benefits of the US-CFTA.
The provisions of the US-CFTA were adopted by the United States with the enactment of the United States-Chile Free Trade Agreement Implementation Act (the “Act”), Pub. L. 108-77, 117 Stat. 909 (19 U.S.C. 3805 note)(2003).
Customs and Border Protection (CBP) has the responsibility to administer the provisions of the US-CFTA and the Act which relate to the importation of goods into the United States from Chile. Those customs-related US-CFTA provisions which require implementation through regulation include certain tariff and non-tariff provisions within Chapter Three (National Treatment and Market Access for Goods) and the provisions of Chapter Four (Rules of Origin and Origin Procedures) and Chapter Five (Customs Administration).
The tariff-related provisions within US-CFTA Chapter Three which require regulatory action by CBP are Article 3.7 (Temporary Admission of Goods), Article 3.8 (Drawback and Duty Deferral Programs), Article 3.9 (Goods Re-Entered after Repair or Alteration), Article 3.10 (Duty-Free Entry of Commercial Samples of Negligible Value and Printed Advertising Materials) and Article 3.20 (Rules of Origin and Related Matters).
Chapter Four of the US-CFTA sets forth the rules for determining whether an imported good qualifies as an originating good of the United States or Chile (US-CFTA country) and, as such, is therefore eligible for preferential tariff (duty-free or reduced duty) treatment as provided for under Article 4.1 and Annex 4.1 of the US-CFTA. Under Article 4.1 within that Chapter, originating goods may be grouped in three broad categories: (1) Goods which are wholly obtained or produced entirely in one or both of the Parties; (2) goods which are produced entirely in those countries and which satisfy the specific rules of origin in US-CFTA Annex 4.1 (change in tariff classification requirement and/or regional value content requirement); and (3) goods which are produced entirely in one or both of the Parties exclusively from materials that originate in those countries. Article 4.2 sets forth the methods for calculating the regional value content of a good. Article 4.3 sets forth the rules for determining the value of materials for purposes of calculating the regional value content of a good and applying the
Chapter Five sets forth the customs operational provisions related to the implementation and continued administration of US-CFTA.
In order to provide transparency and facilitate their use, the majority of the US-CFTA implementing regulations set forth in this document have been included within new subpart H in Part 10 of the CBP Regulations (19 CFR). However, in those cases in which US-CFTA implementation is more appropriate in the context of an existing regulatory provision, the US-CFTA regulatory text has been incorporated in an existing Part within the CBP Regulations. In addition, this document sets forth a number of cross-references and other consequential changes to existing regulatory provisions to clarify the relationship between those existing provisions and the new US-CFTA implementing regulations. The regulatory changes are discussed below in the order in which they appear in this document.
To create new subpart H of 19 CFR part 10, the existing sections in that part have been re-designated into subparts A through G.
Section 10.31(f) concerns temporary importations under bond. It is amended by adding a sentence at the end stating that, as regards the goods described in the added sentence, no bond or other security will be required in the case of goods originating in Chile. The provisions of US-CFTA Article 3.7 (temporary admission of goods) are already reflected in existing temporary importation bond or other provisions contained in part 10 of the CBP Regulations and in Chapter 98 of the HTSUS.
Section 10.401 outlines the scope of new subpart H, part 10. This section also clarifies that, except where the context otherwise requires, the requirements contained in subpart H, part 10 are in addition to general administrative and enforcement provisions set forth elsewhere in the CBP Regulations. Thus, for example, the specific merchandise entry requirements contained in subpart H, part 10 are in addition to the basic entry requirements contained in parts 141-143 of the regulations.
Section 10.402 sets forth definitions of common terms used in multiple contexts or places within subpart H, part 10. Although the majority of the definitions in this section are based on definitions contained in Article 2.1 and Annex 2.1 of the US-CFTA or in § 3 of the Act, other definitions have also been included to clarify the application of the regulatory texts. Additional definitions which apply in a more limited subpart H context are set forth elsewhere with the substantive provisions to which they relate.
Section 10.410 sets forth the procedure for claiming US-CFTA tariff benefits at the time of importation and, as provided in US-CFTA Article 4.12, requires a U.S. importer to file a declaration, and to correct a declaration that contains incorrect information, in connection with the claim. Section 10.410 also implements US-CFTA Article 4.12 by requiring that the declaration that the goods are US-CFTA originating goods be based on a certification of origin which is in the possession of the importer.
Section 10.411 implements US-CFTA Article 4.14 which concerns the obligations of an importer regarding the submission of a certification of origin to CBP and the maintenance of the certification and other relevant records regarding the imported good. Included in § 10.411 is a provision that a certification of origin may be used either for a single importation or for multiple importations of identical goods.
Section 10.416, which is based on US-CFTA Article 4.16, authorizes the denial of US-CFTA tariff benefits if the importer fails to comply with the requirements of Subpart H, Part 10.
Sections 10.420 and 10.421, which are based on US-CFTA Article 3.20, require an importer claiming preferential tariff treatment under a tariff preference level (TPL) to make a statement containing information demonstrating that a good satisfies the requirement for entry under the TPL.
Section 10.430 implements US-CFTA Article 4.15 which concerns use of a certification of origin for purposes of certifying that an exported good is an originating good and thus entitled to preferential tariff treatment under the US-CFTA. This section also implements US-CFTA Article 4.15.3 which requires an exporter or producer to promptly provide written notification of errors in a certification to any person to whom the certification was given.
Section 10.430 concerns the maintenance of records by a U.S. exporter or producer who executes a certification of origin, as required by US-CFTA Article 4.15 and by 19 U.S.C. 1508 as amended by § 207 of the Act. Section 10.430 also concerns the availability of those records both to CBP and to the Chilean customs administration.
Section 10.431 concerns measures applied for a failure of a U.S. exporter or producer to comply with a requirement of subpart H, part 10 and is based on US-CFTA Article 4.16.
Sections 10.440 through 10.442 implement US-CFTA Article 4.12, which allows an importer, who did not claim US-CFTA tariff benefits on a qualifying good at the time of importation, or a non-qualifying apparel good claiming a TPL, to apply for a refund of any excess duties at any time within one year after the date of importation. Such a claim may be made even if liquidation of the entry would otherwise be considered final under other provisions of law.
Sections 10.450 through 10.463 provide the implementing regulations regarding the rules of origin provisions of HTSUS General Note 26 and US-CFTA Chapter Four.
Section 10.450 sets forth terms that are defined for purposes of the Rules of Origin.
Section 10.451 sets forth the basic rules of origin established in Chapter Four of the US-CFTA. The provisions of § 10.451 apply both to the determination of the status of an imported good as an originating good for purposes of preferential tariff treatment and to the determination of the status of a material as an originating material used in a good which is subject to a determination under General Note 26, HTSUS.
Section 10.451(a) lists those goods which are originating goods because they are wholly obtained or produced entirely in the U.S., Chile, or both. Section 10.451(c) provides that goods, produced entirely in the U.S. or Chile from originating materials, are originating goods.
Section 10.451(b) sets forth the basic rules of origin for goods which are produced with any non-originating material content. Essential to the rules in § 10.451(b) are the specific rules of General Note 26(n), HTSUS, which are incorporated by reference. Under paragraph (b)(1) of § 10.451, a good will qualify as an originating good only if all non-originating materials used in the production of the good undergo the applicable change in tariff classification, set forth in General Note 26(n), as a result of processing performed entirely in the US-CFTA countries. Under paragraph (b)(2) of § 10.451, a regional value content requirement must be satisfied in addition to a change in tariff classification for certain cases as specified by the rules of General Note 26(n), and, for other cases, only a regional value content must be satisfied. In all cases, the good must also satisfy all other requirements of the note.
Section 10.452 sets forth the rule that a good or material is not an originating good or material as a result of simple combining or packaging operations or mere dilution with a substance that does not materially alter the characteristics of the good or material.
Section 10.454 sets forth the basic rules which apply for purposes of determining whether an imported good satisfies a minimum regional value content (RVC) requirement. Section 10.455 sets forth the rules for determining the value of a material for purposes of calculating the regional value content of a good as well as for purposes of applying the
Section 10.458 sets forth the rule by which originating goods or materials from the territory of Chile or the United States that are used in the production of a good in the territory of the other country will be considered to originate in the territory of such other country. In addition, this section also establishes that a good that is produced by one or more producers in the territory of Chile or the United States, or both, is an originating good if the good satisfies all of the applicable requirements of the rules of origin of the US-CFTA.
Section 10.459 sets forth a
Section 10.463 sets forth the rule that with certain exceptions, an originating good loses its originating status and is treated as a non-originating good if, subsequent to the production in a US-CFTA country that qualifies the good as originating, the good undergoes production in a territory outside that of a US-CFTA country.
Sections 10.470 through 10.474 implement the provisions of US-CFTA Article 4.16 which concerns the conduct of verifications to determine whether imported goods are originating goods entitled to US-CFTA preferential duty treatment and the issuance and application of origin determinations resulting from such verifications. These sections also govern the conduct of verifications directed to producers of materials that are used in the production of a good for which US-CFTA preferential duty treatment is claimed.
Section 10.470 provides for the verification by CBP of a claim for US-CFTA tariff treatment and any information submitted in support of the claim. This section further provides that, if CBP is prevented from conducting a verification, the claim may be denied.
Section 10.471 provides for textile and apparel goods imported into the United States to be reviewed by Chilean authorities (at the request of CBP), regardless of whether a claim is made for preferential tariff treatment. CBP may also assist in a verification in Chile under this section.
Section 10.471 also provides for specific actions to be taken during and after the verification if directed by the Committee for the Implementation of Textile Agreements. These actions can be taken on the specific goods subject to the verification or to similar goods, or to any textile or apparel goods being imported into the United States by the entity subject to the verification.
Section 10.472 provides for textile and apparel goods exported from the United States to Chile to be reviewed by CBP (at the request of Chilean authorities),
Section 10.473 implements US-CFTA Article 4.16.3 by providing for the issuance of a written determination of origin based on an analysis of the results of the origin verification. This section also prescribes the information required to be included in the written determination and includes special content and issuance requirements in the case of a negative origin determination.
Section 10.480 concerns the general application of penalties to US-CFTA transactions and is based on US-CFTA Article 5.9.
Section 10.481 reflects US-CFTA Article 4.16 with regard to exceptions to the application of penalties in the case of an importer who voluntarily makes a corrected declaration (as provided for in US-CFTA Article 4.12—see § 10.410(b)).
Section 10.482 reflects US-CFTA Article 4.15 with regard to exceptions to the application of penalties in the case of an exporter or producer who voluntarily provides notice of an incorrect certification of origin (
Section 10.490 implements US-CFTA Article 3.9 regarding duty treatment on goods re-entered after repair or alteration in Chile.
A paragraph is added to § 24.23(c), which concerns the merchandise processing fee (MPF) to implement § 204 of the US-CFTA, providing that the MPF is not applicable to goods that qualify as originating goods as provided for in the US-CFTA.
Part 162 contains regulations regarding the inspection and examination of merchandise involved in importation. A cross-reference is added to § 162.0, which is the scope section of the part, to refer readers to the additional US-CFTA records maintenance and examination provisions contained in new subpart H, part 10.
A conforming amendment is made to § 163.1 to include the completion of a Chile certification of origin and any other supporting documentation pursuant to the US-CFTA as an activity for which records must be maintained. Also, the list appearing in Appendix to § 163 (commonly known as the (a)(1)(A) list) is also amended to add the Chile certification of origin, required by new § 10.410.
Part 178 sets forth the control numbers assigned to information collections of CBP by the Office of Management and Budget, pursuant to the Paperwork Reduction Act of 1995, Pub. L. 104-13. The list contained in § 178.2 is amended to add the information collections used by CBP to determine eligibility for a tariff preference or other rights or benefits under the US-CFTA and the Act.
Part 191 contains regulations regarding drawback. A cross-reference is added to § 191.0, which is the scope section of the part, to refer readers to the additional US-CFTA drawback provisions contained in new subpart H, part 10.
Before adopting these interim regulations as a final rule, consideration will be given to any written comments timely submitted to CBP by e-mail, mail, hand delivery or courier, including comments on the clarity of these interim regulations and how they may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552), and § 103.11(b) of the CBP Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Customs and Border Protection, 799 9th Street, NW., (5th Floor), Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at 202-572-8768. Comments may also be accessed on the EPA Partner EDOCKET Web site or Federal eRulemaking Portal. For additional information on accessing comments via the EPA Partner EDOCKET Web site or Federal eRulemaking Portal, see the
Under section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553), agencies amending their regulations generally are required to publish a notice of proposed rulemaking in the
In addition, section 553(b)(B) of the APA provides that notice and public procedure are not required when an agency for good cause finds them impracticable, unnecessary, or contrary to the public interest. CBP finds that providing notice and public procedure for these regulations would be impracticable, unnecessary, and contrary to the public interest because they establish procedures that the public needs to know in order to claim the benefit of a tariff preference under the Act. The US-CFTA went into effect on January 1, 2004, and the importing public needs the certainty of regulations as soon as possible.
Finally, section 553(d)(1) and (d)(3) of the APA exempt agencies from the requirement of publishing notice of final rules at least 30 days prior to their effective date when a substantive rule grants or recognizes an exemption or relieves a restriction and when the agency finds that good cause exists for not meeting the advance publication requirement. For the reasons described above, CBP has determined that these regulations grant an exemption and relieve restrictions and that good cause exists for dispensing with a delayed effective date.
CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 of September 30, 1993 (58 FR 51735, October 1993), because it pertains to a foreign affairs function of the United States and implements an international agreement, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866. Because a notice of proposed rulemaking is not required under section 553(b) of the APA for the reasons described above, CBP notes that the provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601
These regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collections of information contained in these regulations have been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651-0117.
The collections of information in these regulations are in §§ 10.410 and 10.411. This information is required in connection with claims for preferential tariff treatment and for the purpose of the exercise of other rights under the US-CFTA and the Act and will be used by CBP to determine eligibility for a tariff preference or other rights or benefits under the US-CFTA and the Act. The likely respondents are business organizations including importers, exporters and manufacturers.
Comments concerning the collections of information and the accuracy of the estimated annual burden, and suggestions for reducing that burden, should be directed to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Washington, DC 20229.
The principal author of this document is Fernando Peña, Attorney, Office of Regulations and Rulings, Customs and Border Protection. However, personnel from other offices and the Department of the Treasury participated in its development.
This document is being issued in accordance with § 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or her/her delegate) to approve regulations related to certain CBP revenue functions.
Alterations, Bonds, Customs duties and inspection, Exports, Imports, Preference programs, Repairs, Reporting and recordkeeping requirements, Trade agreements (United States-Chile Free Trade Agreement).
Accounting, Customs duties and inspection, Financial and accounting procedures, Reporting and recordkeeping requirements, Trade agreements, User fees.
Administrative practice and procedure, Customs duties and inspection, Penalties, Trade agreements.
Administrative practice and procedure, Customs duties and inspection, Export, Import, Reporting and recordkeeping requirements, Trade agreements.
Administrative practice and procedure, Exports, Imports, Reporting and recordkeeping requirements.
Commerce, Customs duties and inspection, Drawback, Reporting and recordkeeping requirements, Trade agreements.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314;
Sections 10.401 through 10.490 also issued under Pub. L. 108-77, 117 Stat. 909 (19 U.S.C. 3805 note).
(f) * * * In addition, notwithstanding any other provision of this paragraph, in the case of professional equipment necessary for carrying out the business activity, trade or profession of a business person, equipment for the press or for sound or television broadcasting, cinematographic equipment, articles imported for sports purposes and articles intended for display or demonstration, if brought into the United States by a resident of Canada, Mexico or Chile and entered under Chapter 98, Subchapter XIII, HTSUS, no bond or other security will be required if the entered article is a good originating in Canada, Mexico or Chile within the meaning of General Note 12 or 26, HTSUS.
This subpart implements the duty preference and related customs provisions applicable to imported goods under the United States-Chile Free Trade Agreement (the US-CFTA) entered into on June 6, 2003, and under the United States-Chile Free Trade Agreement Implementation Act (the Act; 117 Stat. 909). Except as otherwise specified in this subpart, the procedures and other requirements set forth in this subpart are in addition to the customs procedures and requirements of general application contained elsewhere in this chapter. Additional provisions implementing certain aspects of the US-CFTA and the Act are contained in parts 12, 24, 162, 163 and 191 of this chapter.
As used in this subpart, the following terms will have the meanings indicated unless either the context in which they are used requires a different meaning or a different definition is prescribed for a particular section of this subpart:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) Charge equivalent to an internal tax imposed consistently with Article III:2 of the GATT 1994; in respect of like, directly competitive, or substitutable goods of the Party, or in respect of goods from which the imported good has been manufactured or produced in whole or in part;
(2) Antidumping or countervailing duty; and
(3) Fee or other charge in connection with importation commensurate with the cost of services rendered;
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(1) Fuel and energy;
(2) Tools, dies, and molds;
(3) Spare parts and materials used in the maintenance of equipment and buildings;
(4) Lubricants, greases, compounding materials, and other materials used in production or used to operate equipment and buildings;
(5) Gloves, glasses, footwear, clothing, safety equipment, and supplies;
(6) Equipment, devices, and supplies used for testing or inspecting the goods;
(7) Catalysts and solvents; and
(8) Any other goods that are not incorporated into the good but whose use in the production of the good can reasonably be demonstrated to be a part of that production;
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(1) With respect to Chile, the land, maritime and air space under its sovereignty, and the exclusive economic zone and the continental shelf within which it exercises sovereign rights and jurisdiction in accordance with international law and its domestic law; and
(2) With respect to the United States,
(i) The customs territory of the United States, which includes the 50 states, the District of Columbia, and Puerto Rico,
(ii) The foreign trade zones located in the United States and Puerto Rico, and
(iii) Any areas beyond the territorial seas of the United States within which, in accordance with international law and its domestic law, the United States may exercise rights with respect to the seabed and subsoil and their natural resources;
(x)
(a)
(b)
(a)
(1) Need not be in a prescribed format but must be in writing or must be transmitted electronically pursuant to any electronic means authorized by CBP for that purpose;
(2) Must include the following information:
(i) The legal name, address, telephone and e-mail address of the importer of record of the good (if known);
(ii) The legal name, address, telephone and e-mail address of the exporter of the good (if different from the producer);
(iii) The legal name, address, telephone and e-mail address of the producer of the good (if known);
(iv) A description of the good, which must be sufficiently detailed to relate it to the invoice and the HS nomenclature;
(v) The HTSUS tariff classification, to six or more digits, as necessary for the specific change in tariff classification rule for the good set forth in General Note 26(n), HTSUS;
(vi) The preference criterion as set forth in paragraph (e) of this section;
(vii) For multiple shipments of identical goods, the blanket period in “mm/dd/yyyy to mm/dd/yyyy” format (12-month maximum); and
(3) Must include a statement, in substantially the following form:
“I Certify that:
The information on this document is true and accurate and I assume the responsibility for proving such representations. I understand that I am liable for any false statements or material omissions made on or in connection with this document;
I agree to maintain, and present upon request, documentation necessary to support this certification, and to inform, in writing, all persons to whom the certification was given of any changes that could affect the accuracy or validity of this certification; and
The goods originated in the territory of one or more of the parties, and comply with the origin requirements specified for those goods in the United States-Chile Free Trade Agreement; there has been no further production or any other operation outside the territories of the parties, other than unloading, reloading, or any other operation necessary to preserve it in good condition or to transport the good to the United States; and
This document consists of ____ pages, including all attachments.”
(b)
(1) A certification that the good qualifies as originating issued by the producer; or
(2) Knowledge of the exporter or importer that the good qualifies as an originating good.
(c)
(d)
(1) A single importation of a good into the United States, including a single shipment that results in the filing of one or more entries and a series of shipments that results in the filing of one entry; or
(2) Multiple importations of identical goods into the United States that occur within a specified blanket period, not exceeding 12 months, set out in the certification. For purposes of this paragraph, “identical goods” means goods that are the same in all respects relevant to the production that qualifies the goods as originating.
(e)
(1) Preference criterion “A”, refers to a good that is wholly obtained or produced entirely in the territory of Chile or of the United States, or both (see General Note 26(b)(i), HTSUS);
(2) Preference criterion “B”, refers to a good that is produced entirely in the territory of Chile or the United States, or both (
(i) Each of the non-originating materials used in the production of the good undergoes an applicable change in tariff classification specified in General Note 26(n), HTSUS, or
(ii) The good otherwise satisfies any applicable regional value content or other requirements specified in General Note 26(n), HTSUS;
(3) Preference criterion “C” refers to a good that is produced entirely in the territory of Chile or the United States, or both, exclusively from originating materials (see General Note 26(b)(iii), HTSUS).
(a)
(b)
(1) Must have records that explain how the importer came to the conclusion that the good qualifies for preferential treatment. Those records must include documents that support a claim that the article in question qualifies for preferential treatment because it meets the applicable rules of origin set forth in General Note 26, HTSUS, and in this subpart. Those records may include a properly completed certification as set forth in § 10.411 of this subpart; and
(2) May be required to demonstrate that the conditions set forth in § 10.463 of this subpart were met if the imported article was shipped through an intermediate country.
(c)
(d)
A certification that is completed, signed and dated in accordance with the requirements listed in § 10.411 will be accepted by CBP as valid for four years from the date on which the certification was signed. If the port director determines that a certification is illegible or defective or has not been completed in accordance with § 10.411, the importer will be given a period of not less than five business days to submit a corrected certification.
(a)
(1) A non-commercial importation of a good; or
(2) A commercial importation of a good whose value does not exceed U.S. $2,500, or the equivalent amount in Chilean currency.
(b)
(a)
(1) The purchase of, cost of, value of, and payment for, the good;
(2) Where appropriate, the purchase of, cost of, value of, and payment for, all materials, including recovered goods and indirect materials, used in the production of the good; and,
(3) Where appropriate, the production of the good in the form in which the good was exported.
(b)
(a)
(b)
A cotton or man-made fiber fabric or apparel good described in § 10.421 that does not qualify as an originating good under § 10.451 may nevertheless be entitled to preferential tariff treatment under the US-CFTA under an applicable tariff preference level (TPL). To make a TPL claim, the importer must include on the entry summary, or equivalent documentation, the applicable subheading in Chapter 99 of the HTSUS (9911.99.20 for a good described in § 10.421(a) or (b) or 9911.99.40 for a good described in § 10.421(c)) immediately above the applicable subheading in Chapter 52 through 62 of the HTSUS under which each non-originating cotton or man-made fiber fabric or apparel good is classified.
The following goods are eligible for a TPL claim filed under § 10.420:
(a)
(b)
(c)
(a)
(1) Need not be in a prescribed format but must be in writing or must be transmitted electronically pursuant to any electronic means authorized by CBP for that purpose;
(2) Must include the following information:
(i) The legal name, address, telephone and e-mail address of the importer of record of the good;
(ii) The legal name, address, telephone and e-mail address of the exporter of the good (if different from the producer);
(iii) The legal name, address, telephone and e-mail address of the producer of the good (if known);
(iv) A description of the good, which must be sufficiently detailed to relate it to the invoice and the HS nomenclature;
(v) The HTSUS tariff classification of the good, to six or more digits, as well as the applicable subheading in Chapter 99 of the HTSUS (9911.99.20 or 9911.99.40);
(vi) For a single shipment, the commercial invoice number;
(vii) For multiple shipments of identical goods, the blanket period in “mm/dd/yyyy to mm/dd/yyyy” format (12-month maximum); and
(3) Must include a statement, in substantially the following form:
“I Certify that:
The information on this document is true and accurate and I assume the responsibility for proving such representations. I understand that I am liable for any false statements or material omissions made on or in connection with this document;
I agree to maintain and present upon request, documentation necessary to support this certificate, and to inform, in writing, all persons to whom the certificate was given of any changes that could affect the accuracy or validity of this certificate; and
The goods were produced in the territory of one or more of the parties, and comply with the preference requirements specified for those goods in the United States-Chile Free Trade Agreement and Chapter 99, subchapter XI of the HTSUS. There has been no further production or any other operation outside the territories of the parties, other than unloading, reloading, or any other operation necessary to preserve it in good condition or to transport the good to the United States; and
This document consists of __ pages, including all attachments.”
(b)
(c)
(d)
(1) A single importation of a good into the United States, including a single shipment that results in the filing of one or more entries and a series of shipments that results in the filing of one entry; or
(2) Multiple importations of identical goods into the United States that occur within a specified blanket period, not exceeding 12 months, set out in the certification. For purposes of this paragraph, “identical goods” means goods that are the same in all respects relevant to the production that qualifies the goods for preferential tariff treatment under an applicable TPL.
(a)
(1) A non-commercial importation of a good; or
(2) A commercial importation of a good whose value does not exceed U.S. $2,500, or the equivalent amount in Chilean currency.
(b)
(a)
(b)
(a)
(b)
(a)
(b)
(c)
(i) The purchase of, cost of, value of, and payment for, the good;
(ii) Where appropriate, the purchase of, cost of, value of, and payment for, all materials, including recovered goods and indirect materials, used in the production of the good; and
(iii) Where appropriate, the production of the good in the form in which the good was exported.
(2)
(3)
The port director may apply such measures as the circumstances may warrant where an exporter or a producer in the United States fails to comply with any requirement of this part. Such measures may include the imposition of penalties pursuant to 19 U.S.C. 1508(g) for failure to retain records required to be maintained under § 10.430.
Notwithstanding any other available remedy, where a good would have qualified as an originating good when it was imported into the United States but no claim for preferential tariff treatment was made, the importer of that good may file a claim for a refund of any excess duties at any time within one year after the date of importation of the good in accordance with the procedures set forth in § 10.441 of this part. Subject to the provisions of § 10.416 of this part, CBP may refund any excess duties by liquidation or reliquidation of the entry covering the good in accordance with § 10.442(c) of this part.
(a)
(b)
(1) A written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry or entries covering the good;
(2) Subject to § 10.413 of this part, a copy of a certification that the good qualifies for preferential tariff treatment;
(3) A written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person. If such documentation was so provided, the statement must identify each recipient by name, CBP identification number and address and must specify the date on which the documentation was provided; and
(4) A written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law; and if any such protest or petition or request for reliquidation has been filed, the statement must identify the protest, petition or request by number and date.
(a)
(b)
(c)
(2)
(d)
(2)
(3)
For purposes of §§ 10.450 through 10.463:
(a)
(b)
(c)
(d)
(e)
(f)
(1) Mineral goods extracted in the territory of one or both of the Parties;
(2) Vegetable goods, as such goods are defined in the Harmonized System, harvested in the territory of one or both of the Parties;
(3) Live animals born and raised in the territory of one or both of the Parties;
(4) Goods obtained from hunting, trapping, or fishing in the territory of one or both of the Parties;
(5) Goods (fish, shellfish, and other marine life) taken from the sea by vessels registered or recorded with a Party and flying its flag;
(6) Goods produced on board factory ships from the goods referred to in paragraph (f)(5) provided such factory ships are registered or recorded with that Party and fly its flag;
(7) Goods taken by a Party or a person of a Party from the seabed or beneath the seabed outside territorial waters, provided that a Party has rights to exploit such seabed;
(8) Goods taken from outer space, provided they are obtained by a Party or a person of a Party and not processed in the territory of a non-Party;
(9) Waste and scrap derived from:
(i) Production in the territory of one or both of the Parties, or
(ii) Used goods collected in the territory of one or both of the Parties, provided such goods are fit only for the recovery of raw materials;
(10) Recovered goods derived in the territory of a Party from used goods, and utilized in the Party's territory in the production of remanufactured goods; and
(11) Goods produced in the territory of one or both of the Parties exclusively from goods referred to in paragraphs (f)(1) through (f)(10) of this section, or from their derivatives, at any stage of production;
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(1) The complete disassembly of used goods into individual parts; and
(2) The cleaning, inspecting, testing, or other processing of those parts as necessary for improvement to sound working condition by one or more of the following processes: welding, flame spraying, surface machining, knurling, plating, sleeving, and rewinding in order for such parts to be assembled with other parts, including other recovered parts in the production of a remanufactured good of Annex 4.18, US-CFTA;
(q)
(1) Are entirely or partially comprised of recovered goods;
(2) Have the same life expectancy and meet the same performance standards as new goods; and
(3) Enjoy the same factory warranty as such new goods; and
(r)
(s)
A good imported into the customs territory of the United States will be considered an originating good under the US-CFTA only if:
(a) The good is wholly obtained or produced entirely in the territory of Chile or of the United States, or both; or
(b) The good is produced entirely in the territory of Chile or of the United States, or both, satisfies all other applicable requirements of this subpart, and
(1) Each of the non-originating materials used in the production of the good undergoes an applicable change in tariff classification specified in General Note 26(n), HTSUS, and
(2) The good otherwise satisfies any applicable regional value content or other requirements specified in General Note 26(n), HTSUS; or
(c) The good is produced entirely in the territory of Chile or the United States, or both, exclusively from originating materials.
A good will not be considered to be an originating good and a material will not be considered to be an originating material by virtue of having undergone:
(a) Simple combining or packaging operations; or
(b) Mere dilution with water or with another substance that does not materially alter the characteristics of the good or material.
Notwithstanding the specific rules specified in General Note 26(n), HTSUS, textile and apparel goods classifiable as goods put up in sets for retail sale as provided for in General Rule of Interpretation 3, HTSUS, will not be regarded as originating goods unless each of the goods in the set is an originating good or the non-originating goods in the set do not exceed 10 percent of the adjusted value of the set.
Where General Note 26, subdivision (n), HTSUS, sets forth a rule that specifies a regional value content test for a good, the regional value content of such good may be calculated, at the choice of the person claiming the tariff treatment authorized by this note for such good, on the basis of the build-down method or the build-up method described in this section, unless otherwise specified in the note.
(a)
(b)
(a)
(1) In the case of a material imported by the producer of the good, the adjusted value of the material;
(2) In the case of a material acquired in the territory where the good is produced, except for a material to which paragraph (a)(3) of this section applies, the producer's price actually paid or payable for the material;
(3) In the case of a material provided to the producer without charge, or at a price reflecting a discount or similar reduction, the sum of—
(i) All expenses incurred in the growth, production or manufacture of the material, including general expenses, and
(ii) A reasonable amount for profit; or
(4) In the case of a material that is self-produced, the sum of—
(i) All expenses incurred in the production of the material, including general expenses, and
(ii) A reasonable amount for profit.
(b)
(1) For originating materials, the following expenses, if not included under paragraph (a) of this section, may be added to the value of the originating material:
(i) The costs of freight, insurance, packing and all other costs incurred in transporting the material within or between the territory of Chile, the United States, or both, to the location of the producer;
(ii) Duties, taxes and customs brokerage fees on the material paid in the territory of Chile or of the United States, or both, other than duties and taxes that are waived, refunded, refundable or otherwise recoverable, including credit against duty or tax paid or payable; and
(iii) The cost of waste and spoilage resulting from the use of the material in the production of the good, less the value of renewable scrap or by-product; and
(2) For non-originating materials, if included under paragraph (a) of this section, the following expenses may be deducted from the value of the non-originating material:
(i) The costs of freight, insurance, packing and all other costs incurred in transporting the material within or between the territory of Chile, the United States, or both, to the location of the producer;
(ii) Duties, taxes and customs brokerage fees on the material paid in the territory of Chile or of the United States, or both, other than duties and taxes that are waived, refunded, refundable or otherwise recoverable, including credit against duty or tax paid or payable;
(iii) The cost of waste and spoilage resulting from the use of the material in the production of the good, less the value of renewable scrap or by-products; and
(iv) The cost of originating materials used in the production of the non-originating material in the territory of Chile or of the United States.
(c)
Accessories, spare parts or tools that form part of the good's standard accessories, spare parts or tools and are delivered with the good will be treated as a material used in the production of the good, if—
(a) The accessories, spare parts or tools are classified with and not invoiced separately from the good; and
(b) The quantities and value of the accessories, spare parts or tools are customary for the good.
(a) A person claiming preferential tariff treatment under the US-CFTA for a good may claim that a fungible good or material is originating either based on the physical segregation of each fungible good or material or by using an inventory management method. For purposes of this subpart, the term “inventory management method” means—
(1) Averaging,
(2) “Last-in, first-out,”
(3) “First-in, first-out,” or
(4) Any other method that is recognized in the generally accepted accounting principles of the country in which the production is performed (whether Chile or the United States) or otherwise accepted by that country.
(b) A person selecting an inventory management method under paragraph (a) of this section for particular fungible goods or materials must continue to use that method for those fungible goods or materials throughout the fiscal year of that person.
(a) Originating goods or materials of Chile or the United States that are incorporated into a good in the territory of the other country will be considered to originate in the territory of the other country for purposes of determining the eligibility of the goods or materials for preferential tariff treatment under the US-CFTA.
(b) A good that is produced in the territory of Chile, the United States, or both, by one or more producers, will be considered as an originating good if the good satisfies the applicable requirements of § 10.451 and General Note 26, HTSUS.
(a) Except as provided in paragraphs (b) and (c) of this section, a good that does not undergo a change in tariff classification pursuant to General Note 26(n), HTSUS, will nonetheless be considered to be an originating good if—
(1) The value of all non-originating materials that are used in the production of the good and do not undergo the applicable change in tariff classification does not exceed 10 percent of the adjusted value of the good;
(2) The value of such non-originating materials is included in calculating the value of non-originating materials for any applicable regional value-content requirement under this note; and
(3) The good meets all other applicable requirements of General Note 26(n), HTSUS.
(b) Paragraph (a) of this section does not apply to:
(1) A non-originating material provided for in Chapter 4 of the Harmonized System, or a non-originating dairy preparation containing over 10 percent by weight of milk solids provided for in subheadings 1901.90 or 2106.90 of the Harmonized System, that is used in the production of a good provided for in Chapter 4 of the Harmonized System;
(2) A non-originating material provided for in Chapter 4 of the Harmonized System, or non-originating dairy preparations containing over 10 percent by weight of milk solids provided for in subheading 1901.90 of the Harmonized System, that are used in the production of the following goods: infant preparations containing over 10 percent in weight of milk solids provided for in subheading 1901.10 of the Harmonized System; mixes and doughs, containing over 25 percent by weight of butterfat, not put up for retail sale, provided for in subheading 1901.20 of the Harmonized System; dairy preparations containing over 10 percent by weight of milk solids provided for in subheadings 1901.90 or 2106.90 of the Harmonized System; goods provided for in heading 2105 of the Harmonized System; beverages containing milk provided for in subheading 2202.90 of the Harmonized System; or animal feeds containing over 10 percent by weight of milk solids provided for in subheading 2309.90 of the Harmonized System;
(3) A non-originating material provided for in heading 0805 of the Harmonized System or subheadings 2009.11 through 2009.30 of the Harmonized System that is used in the production of a good provided for in subheadings 2009.11 through 2009.30 of the Harmonized System, or in fruit or vegetable juice of any single fruit or vegetable, fortified with minerals or vitamins, concentrated or unconcentrated, provided for in subheadings 2106.90 or 2202.90 of the Harmonized System;
(4) A non-originating material provided for in Chapter 15 of the Harmonized System that is used in the production of a good provided for in headings 1501 through 1508, 1512, 1514, or 1515 of the Harmonized System;
(5) A non-originating material provided for in heading 1701 of the Harmonized System that is used in the production of a good provided for in headings 1701 through 1703 of the Harmonized System;
(6) A non-originating material provided for in Chapter 17 or in heading 1805 of the Harmonized System that is used in the production of a good provided for in subheading 1806.10 of the Harmonized System;
(7) A non-originating material provided for in headings 2203 through 2208 of the Harmonized System that is used in the production of a good provided for in heading 2207 or 2208 of the Harmonized System; and
(8) A non-originating material used in the production of a good provided for in Chapters 1 through 21 of the Harmonized System unless the non-originating material is provided for in a different subheading than the good for which origin is being determined under this section.
(c) A textile or apparel good provided for in Chapters 50 through 63 of the Harmonized System that is not an originating good because certain fibers or yarns used in the production of the
An indirect material, as defined in § 10.402(n), will be considered to be an originating material without regard to where it is produced.
Chilean Producer C produces good C using non-originating material A. Producer C imports non-originating rubber gloves for use by workers in the production of good C. Good C is subject to a tariff shift requirement. As provided in § 10.451(b)(1) and General Note 26(n), each of the non-originating materials in good C must undergo the specified change in tariff classification in order for good C to be considered originating. Although non-originating material A must undergo the applicable tariff shift in order for good C to be considered originating, the rubber gloves do not because they are indirect materials and are considered originating without regard to where they are produced.
Packaging materials and containers in which a good is packaged for retail sale, if classified with the good for which preferential tariff treatment under the US-CFTA is claimed, will be disregarded in determining whether all non-originating materials used in the production of the good undergo the applicable change in tariff classification set out in General Note 26(n), HTSUS. If the good is subject to a regional value content requirement, the value of such packaging materials and containers will be taken into account as originating or non-originating materials, as the case may be, in calculating the regional value content of the good.
Chilean Producer A of good C imports 100 non-originating blister packages to be used as retail packaging for good C. As provided in § 10.455(a)(1), the value of the blister packages is their adjusted value, which in this case is $10. Good C has a regional value content requirement. The United States importer of good C decides to use the build-down method, RVC = ((AV-VNM)/AV) × 100 (
Same facts as in Example 1, but the blister packages are originating. In this case, the adjusted value of the originating blister packages would not be included as part of the VNM of good C under the build-down method. However, if the United States importer had used the build-up method, RVC = (VOM/AV) × 100 (
(a) Packing materials and containers for shipment, as defined in § 10.450(m), are to be disregarded in determining whether the non-originating materials used in the production of the good undergo an applicable change in tariff classification set out in General Note 26(n), HTSUS. Accordingly, such materials and containers do not have to undergo the applicable change in tariff classification even if they are non-originating.
(b) Packing materials and containers for shipment, as defined in § 10.450(m), are to be disregarded in determining the regional value content of a good imported into the United States. Accordingly, in applying either the build-down or build-up method for determining the regional value content of the good imported into the United States, the value of such packing materials and containers for shipment (whether originating or non-originating) is disregarded and not included in AV, adjusted value, VNM, value of non-originating materials, or VOM, value of originating materials.
Chilean Producer A produces good C. Producer A ships good C to the United States in a shipping container which it purchased from Company B in Chile. The shipping container is originating. The value of the shipping container determined under section § 10.455(a)(2) is $3. Good C is subject to a regional value content requirement. The transaction value of good C is $100, which includes the $3 shipping container. The U.S. importer decides to use the build-up method, RVC = (VOM/AV) × 100 (
(a)
(b)
(a)
(1) All records required to be made, kept, and made available to CBP by the importer or any other person under part 163 of this chapter;
(2) Documentation and other information regarding the country of origin of an article and its constituent materials, including, but not limited to, production records, supporting accounting and financial records, information relating to the place of production, the number and identification of the types of machinery used in production, and the number of workers employed in production; and
(3) Evidence that documents the use of U.S. or Chilean materials in the production of the article subject to the verification, such as purchase orders, invoices, bills of lading and other shipping documents, customs import and clearance documents, and bills of material and inventory records.
(b)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(e)
If CBP determines, as a result of an origin verification initiated under this section, that the good which is the subject of the verification does not qualify as an originating good, it will issue a written determination that sets forth the following:
(a) A description of the good that was the subject of the verification together with the identifying numbers and dates of the export and import documents pertaining to the good;
(b) A statement setting forth the findings of fact made in connection with the verification and upon which the determination is based;
(c) With specific reference to the rules applicable to originating goods as set forth in General Note 26, HTSUS, and in the “Rules of Origin” heading under this subpart, the legal basis for the determination; and,
(d) A notice of intent to deny preferential tariff treatment on the good which is the subject of the determination.
Where CBP finds indications of a pattern of conduct by an importer of false or unsupported representations that a good imported into the United States qualifies as originating, CBP may deny subsequent claims for preferential tariff treatment on identical goods imported by that person until compliance with the rules applicable to originating goods as set forth in General Note 26, HTSUS is established to the satisfaction of CBP.
Except as otherwise provided in this subpart, all criminal, civil or administrative penalties which may be imposed on U.S. importers, exporters and producers for violations of the customs and related laws and regulations will also apply to U.S. importers, exporters and producers for violations of the laws and regulations relating to the US-CFTA.
A U.S. importer who makes a corrected declaration under § 10.410(b) will not be subject to civil or administrative penalties for having made an incorrect declaration, provided that the corrected declaration was voluntarily made.
Civil or administrative penalties provided for under the U.S. customs laws and regulations will not be imposed on an exporter or producer in the United States who voluntarily provides written notification pursuant to § 10.430(b) with respect to the making of an incorrect certification.
(a)
(1) Done before the commencement of a formal investigation; or
(2) Done before any of the events specified in § 162.74(i) of this part have occurred; or
(3) Done within 30 calendar days after either the U.S. importer, exporter or producer had reason to believe that the declaration or certification was not correct; and is
(4) Accompanied by a written statement setting forth the information specified in paragraph (c) of this section; and
(5) In the case of a corrected declaration, accompanied or followed by a tender of any actual loss of duties and merchandise processing fees, if applicable, in accordance with paragraph (e) of this section.
(b)
(c)
(1) Identifies the class or kind of good to which the incorrect declaration or certification relates;
(2) In the case of a corrected declaration, identifies each affected import transaction, including each port of importation and the approximate date of each importation, and in the case of a notification of an incorrect certification, identifies each affected exportation transaction, including each port of exportation and the approximate date of each exportation. A U.S. producer who provides written notification that certain information in a certification of origin is incorrect and who is unable to identify the specific export transactions under this paragraph must provide as much information concerning those transactions as the producer, by the exercise of good faith and due diligence, is able to obtain;
(3) Specifies the nature of the incorrect statements or omissions regarding the declaration or certification; and
(4) Sets forth, to the best of the person's knowledge, the true and accurate information or data which should have been covered by or provided in the declaration or certification, and states that the person will provide any additional pertinent information or data which is unknown at the time of making the corrected declaration or certification within 30 calendar days or within any extension of that 30-day period as CBP may permit in order for the person to obtain the information or data.
(d)
(1) CBP is satisfied that the information was provided before the commencement of a formal investigation; and
(2) The information provided includes, orally or in writing, substantially the same information as that specified in paragraph (c) of this section.
(e)
(f)
(a)
(b)
(c)
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States) 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
Section 24.23 also issued under 19 U.S.C. 3332
(c) * * *
(6) [Reserved]
(7) The ad valorem fee, surcharge, and specific fees provided under paragraphs (b)(1) and (b)(2)(i) of this section will not apply to goods that qualify as originating goods under § 202 of the United States-Chile Free Trade Agreement Implementation Act (see also General Note 26, HTSUS) that are entered, or withdrawn from warehouse for consumption, on or after January 1, 2004.
5 U.S.C. 301; 19 U.S.C. 66, 1592, 1593a, 1624.
* * * Additional provisions concerning records maintenance and examination applicable to U.S. importers, exporters and producers under the U.S.-Chile Free Trade Agreement are contained in Part 10, Subpart H of this chapter.
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
(a) * * *
(2) * * *
(vi) The completion and signature of a Chile FTA certification of origin and any other supporting documentation pursuant to the United States-Chile Free Trade Agreement.
IV. * * *
5 U.S.C. 301; 19 U.S.C. 1624; 44 U.S.C. 3501
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1313, 1624.
* * * Those provisions relating to the United States-Chile Free Trade
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains the final regulations relating to property exempt from levy, which revise regulations currently published under Internal Revenue Code section 6334. The regulation reflects changes made by the IRS Restructuring and Reform Act of 1998 (the RRA 98) and provides guidance regarding: (1) Procedures for obtaining prior judicial approval of certain principal residence levies; (2) an exemption from levy for certain residences in small deficiency cases and for certain business assets in the absence of administrative approval or jeopardy; and (3) the applicable dollar amounts for certain exemptions. The regulation also reflects changes made by the Taxpayer Relief Act of 1997, which permits levy on certain specified payments with the prior approval of the Secretary.
Robin Ferguson at (202) 622-3610 (not a toll-free number).
This document contains a final regulation amending the Procedure and Administration Regulations (26 CFR part 301) under section 6334 of the Internal Revenue Code of 1986 (Code). The final regulation provides guidance reflecting the amendments to section 6334 made by RRA 98 (Public Law 105-206), and the Taxpayer Relief Act of 1997 (Public Law 105-34)(TRA 97). A notice of proposed rulemaking (REG-140378-01) was published in the
None.
None.
It has been determined that this regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to this regulation, and, therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.
The principal author of the final regulation is Robin Ferguson of the Office of Associate Chief Counsel, Procedure and Administration (Collection, Bankruptcy and Summonses Division).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
The revisions and additions read as follows:
(a) * * *
(2)
(3)
(8)
(13)
(ii)
(d)
(1)
(2) The taxpayer will be granted a hearing to rebut the Government's prima facie case if the taxpayer files an objection within the time period required by the court raising a genuine issue of material fact demonstrating that the underlying tax liability has been satisfied, that the taxpayer has other assets from which the liability can be satisfied, or that the Service did not follow the applicable laws or procedures pertaining to the levy. The taxpayer is not permitted to challenge the merits underlying the tax liability in the proceeding. Unless the taxpayer files a timely and appropriate objection, the court would be expected to enter an order approving the levy of the principal residence property.
(3)
(e)
(1) An Area Director of the Service personally approves (in writing) the levy of such property; or
(2) The Secretary finds that the collection of tax is in jeopardy. An Area Director may not approve a levy under paragraph (e)(1) unless the Area Director determines that the taxpayer's other assets subject to collection are insufficient to pay the amount due, together with expenses of the proceeding. When other assets of an individual taxpayer include permits issued by a State and required under State law for the harvest of fish or wildlife in the taxpayer's trade or business, the taxpayer's other assets also include future income that may be derived by such taxpayer from the commercial sale of fish or wildlife under such permit.
(f)
(g)
(h)
Department of Justice, Office of the Attorney General.
Corrections to interim rule.
This document contains corrections to the interim rule published Monday, January 31, 2005, at 70 FR 4763, relating to DNA sample collection from federal offenders under the Justice for All Act of 2004. These corrections conform the references in the preamble to the actual paragraph designations in § 28.2(b)(3) and also correct a typographical error.
Effective March 7, 2005.
David J. Karp, Senior Counsel, Office of Legal Policy, Room 4509, Main Justice Building, 950 Pennsylvania Avenue, NW., Washington, DC 20530.
The interim rule that is the subject of these corrections implements section 203(b) of Pub. L. 108-405, the Justice for All Act of 2004. The rule amends 28 CFR 28.2 to reflect the expansion of the class of federal offenses, conviction for which results in the collection of DNA samples from the offenders, to include all felonies.
1. On page 4765, in the second column, in the second full paragraph, in the eighteenth line, “28.2(a)(1)’s” is deleted and “28.2(b)(1)’s” is added in lieu thereof.
2. On page 4765, in the third column, in the first paragraph, in the sixteenth line, “(b)(3)(A)” is deleted and “(b)(3)(i)” is added in lieu thereof.
3. On page 4765, in the third column, in the first paragraph, in the thirty-first line, “(b)(3)(A)” is deleted and “(b)(3)(i)” is added in lieu thereof.
4. On page 4765, in the third column, in the second paragraph, in the fifth line, “(b)(3)(A)” is deleted and “(b)(3)(i)” is added in lieu thereof.
5. On page 4766, in the first column, in the first full paragraph, in the first line, “(b)(3)(B)” is deleted and “(b)(3)(ii)” is added in lieu thereof.
6. On page 4766, in the first column, in the first full paragraph, in the fifteenth line, “(b)(3)(B)” is deleted and “(b)(3)(ii)” is added in lieu thereof.
7. On page 4766, in the first column, in the second full paragraph, in the eighteenth line, “(b)(3)(I)” is deleted and “(b)(3)(ix)” is added in lieu thereof.
Coast Guard, DHS.
Final rule.
The Coast Guard is amending the special local regulations at 33 CFR 100.518, established for marine events held annually in the Severn River, Annapolis, Maryland by publishing the name of the events, the dates and modifying the boundaries of the regulated area. The marine events included in this rule include the Safety at Sea Seminar, U.S. Naval Academy crew races and the Blue Angels air show. This rule is intended to restrict vessel traffic in portions of the Severn River during the period of these marine events and is necessary to provide for the safety of life on navigable waters during the event.
This rule is effective April 6, 2005.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD05-04-196) and are available for inspection or copying at Commander (oax), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, Room 119, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
Dennis M. Sens, Project Manager, Auxiliary and Recreational Boating Safety Branch, at (757) 398-6204.
On December 7, 2004, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations for Marine Events; Severn River, College Creek, Weems Creek and Carr Creek, Annapolis, MD in the
The regulations at 33 CFR 100.518 are enforced annually for the duration of each marine event listed in paragraph (c) of § 100.518, U.S. Naval Academy marine events. Paragraph (c) of § 100.518 lists the enforcement dates for the Safety at Sea Seminar on the last Saturday of March, the U.S. Naval Academy crew races on the third and fourth Saturday of April, and the third Friday in May, and the Blue Angels air show on the last Tuesday and Wednesday in May. Notice of exact time, date and location of the event will be published in the
No comments were received in response to the notice of proposed rulemaking (NPRM) published in the
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this action merely establishes the dates on which the existing regulations would be in effect and modifies the boundaries of the regulated area and does not impose any new restrictions on vessel traffic.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule does not have a significant economic impact on a substantial number of small entities. This rule may effect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Severn River during the event.
This rule does not have a significant economic impact on a substantial number of small entities for the following reasons. This rule merely establishes the dates on which the existing regulations will be in effect and modify the boundaries of the regulated area and will not impose any new restrictions on vessel traffic.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine event permit are specifically excluded from further analysis and documentation under that section.
Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
33 U.S.C. 1233; Department of Homeland Security Delegation No. 0170.1.
(a)(1)
(c)
(i) Safety at Sea Seminar, held on the last Saturday in March;
(ii) Naval Academy Crew Races, held on the third and fourth Saturday in April and the third Friday in May; and
(iii) Blue Angels Air Show, held on the last Tuesday and Wednesday in May.
(2) The Commander, Fifth Coast Guard District will publish a notice in the
Coast Guard, DHS.
Temporary final rule; request for comments.
The Coast Guard is establishing temporary special local regulations for several rowing regattas on Indian Creek, in the vicinity of the 63rd Street Bridge, Miami Beach, Florida. This rule is necessary to insure the safety of life of participants and spectators in the regatta area. This rule is intended to restrict vessels from entering the regulated area during the events unless specifically authorized by the Captain of the Port, Miami, Florida, or his designated representative. The rule further prohibits anchoring or mooring in the regulated area during the events.
This rule is effective from 8 a.m. on March 6, 2005 through 2 p.m. on April 29, 2005.
Documents indicated in the preamble as being available in the docket, are part of docket [CGD07-05-010] and are available for inspection or copying at Coast Guard Sector Miami, 100 MacArthur Causeway, Miami Beach, FL 33139 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
BMC D. Vaughn or BMC R. Terrell, Coast Guard Sector Miami, Florida, at (305) 535-4317.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. One sponsor of the event was unable to provide complete information about the event until January 31, 2005, and this did not allow enough time for an NPRM and a comment period. Delaying this rule would be contrary to the public interest as the special local regulations are needed to ensure the safety of spectators and regatta participants during the event, and immediate action is necessary to prevent possible loss of life or property.
Under 5 U.S.C. 553(d)(3), for the same reasons articulated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD07-05-010], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
Miami Beach Watersports Center, Inc. and the University of Miami are separately sponsoring several rowing regattas on March 6, March 12, and April 29, 2005 from 8 a.m. until 2 p.m. These regattas share a common regatta area on Indian Creek in Miami Beach, Florida. The regatta area extends from 1 nm south of the 63rd Street Bridge to the entrance of Surprise Lake, Miami Beach, Florida. The race organizers anticipate 200 participants. Event races will take place to one side of the waterway and participant vessels will use the other side of the waterway to return along the length of the racecourse once each race is complete. Recreational vessels and fishing vessels normally operate in the waters being regulated. This rule is required to provide for the safety of life on navigable waters because of the inherent dangers associated with rowing races and dangers imposed by non-participant vessels. The rule prohibits non-participant vessels from entering the regulated race area on Indian Creek, Miami Beach, Florida during the event unless authorized by the Captain of the Port, Miami, Florida, or his designated representative. Anchoring and mooring within the regulated area will also be prohibited.
The special local regulations for this event prohibit non-participant vessels from entering the regulated area unless authorized by the Coast Guard Captain of the Port or his designated representative.
The regulated area encompasses all waters of Indian Creek from one nautical mile south of the 63rd Street Bridge to the entrance of Surprise Lake. No anchoring will be permitted in the regulated area.
This rule will be effective from 8 a.m. on March 6, 2005 through 2 p.m. on April 29, 2005 to cover all three crew regattas, however the regulated area will only be enforced from 8 a.m. to 2 p.m. on each of the event dates of March 6, March 12 and April 29, 2005.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This event is a stationary event, and the regulated area will only be enforced for approximately 6 hours on each event day (March 6, March 12, and April 29) during which non-participant vessels will still be allowed to transit the area with permission of the Capt of the Port, Miami or his designated representative.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the regulated area from 8 a.m. to 2 p.m. on March 6, March 12, and April 29, 2005. These special local regulations will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated area will only be enforced for approximately 6 hours on each of the three event days at a time of day when vessel traffic is low. Vessel traffic will still be allowed to transit the regulated area with the permission of the Captain of the Port, Miami or his designated representative.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the persons listed under
Small business may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. As special local regulations established in conjunction with a regatta, this rule fits within paragraph (34)(h). Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
33 U.S.C. 1233; Department of Homeland Security Delegation No. 0170.1.
(a)
(2) Races will be conducted on the western side of the regulated area with race participants returning along the length of the racecourse via the eastern side of the regulated area.
(b)
(c)
(d)
Environmental Protection Agency (EPA).
Direct final rule.
The United States Environmental Protection Agency is approving the section 111(d) /129 plan submitted by Tennessee for the Pollution Control District (PCD) of the Metro Public Health Department for Nashville/Davidson County on May 28, 2002, for implementing and enforcing the Emissions Guidelines (EG) applicable to existing Commercial and Industrial Solid Waste Incineration (CISWI) units that commenced construction on or before November 30, 1999.
This direct final rule will be effective May 6, 2005 unless EPA receives adverse comments by April 6, 2005. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Regional Material in EDocket (RME) ID No. R04-OAR-2004-TN-0003, by one of the following methods:
1.
2.
3.
4.
5.
6.
Melissa Krenzel at (404) 562-9196 or Joydeb Majumder at (404) 562-9121.
On December 1, 2000, pursuant to sections 111 and 129 of the Clean Air Act (Act), EPA promulgated new source performance standards (NSPS) applicable to new CISWIs and EG applicable to existing CISWIs. The NSPS and EG are codified at 40 CFR part 60, subparts CCCC and DDDD, respectively. Subparts CCCC and DDDD regulate the following: Particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, arsenic, beryllium, chromium, hydrocarbons, mercury, and dioxins and dibenzofurans.
Section 129(b)(2) of the Act requires States to submit to EPA for approval State Plans that implement and enforce the EG. State Plans must be at least as protective as the EG, and become Federally enforceable upon approval by EPA. The procedures for adoption and submittal of State Plans are codified in 40 CFR part 60, subpart B. EPA originally promulgated the subpart B provisions on November 17, 1975. EPA amended subpart B on December 19, 1995, to allow the subparts developed under section 129 to include specifications that supersede the general provisions in subpart B regarding the schedule for submittal of State Plans, the stringency of the emission limitations, and the compliance schedules.
This action approves the State Plan submitted by Tennessee for the PCD for Nashville/Davidson County to implement and enforce subpart DDDD, as it applies to existing CISWI units only.
Tennessee submitted to EPA on May 28, 2002, the following in their 111(d)/129 State Plan for implementing and enforcing the EG for existing CISWIs under their direct jurisdiction in Nashville/Davidson County: Public Hearings; Inventory of Affected CISWI Units; Regulation No. 17, “Regulation For Control of Commercial and Industrial Solid Waste Incineration Units”; Emission Inventories of Affected CISWI Units; Enforceable Mechanism for Implementing the EG; Submittal of Progress Reports to EPA; and Demonstration of Authority to Carry Out the Plan.
The approval of the PCD's Nashville/Davidson County State Plan is based on finding that: (1) PCD provided adequate public notice of public hearings for the EG for CISWIs, and (2) PCD also demonstrated legal authority to adopt emission standards and compliance schedules to designated facilities; authority to enforce applicable laws, regulations, standards, and compliance schedules, and authority to seek injunctive relief; authority to obtain information necessary to determine whether designated facilities are in compliance with applicable laws, regulations, standards, and compliance schedules, including authority to require record keeping and to make inspections and conduct tests of designated facilities; and authority to require owners or operators of designated facilities to install, maintain, and use emission monitoring devices and to make periodic reports to the State on the nature and amount of emissions from such facilities.
PCD cites the following references for the legal authority: the Tennessee Code Annotated (TCA), in 68-201-115, gives Metro Public Health Department the authority to adopt and enforce laws for the control of air pollution as long as those laws are not less stringent than those of the State of Tennessee. Article 10, “Public Health and Hospitals,” Chapter 1, “Public Health,” Sections 10.101 through 10.104 of the Charter of the Metropolitan Government empowers the Board to adopt regulations having the force of law for the control of air pollution. The Metropolitan Code of Laws (MCL), Chapter 10.56, “Air Pollution Control,” Section 10.56.090, “Board—Powers and Duties” and Section 10.56.150, “Nuisance Declared—Injunctive Relief” give the Board the legal authority to enforce relevant laws, regulations, standards, and compliance schedules, and to seek injunctive relief. MCL Chapter 10.56, “Air Pollution Control,” Section 10.56.290, “Measurement and Reporting of Emissions” gives the Board the legal authority to obtain the necessary information to determine compliance, require recordkeeping, make inspections, and conduct tests and to require the use of monitors and the submittal of emission reports. Tennessee Statute, TCA 10-7-503, “Records Open to Public Inspection—Exceptions” and 10-7-504, “Confidential Records” and MCL, Section 2.36.130, “Records and Proceedings—Public Inspection Authorized When” provide the authority to make available to the public any emission data submitted by CISWI facilities.
An enforcement mechanism is a legal instrument by which the PCD can enforce a set of standards and conditions. PCD has adopted the model rule from 40 CFR part 60, subpart DDDD, as Regulation No. 17, “Regulation for Control of Commercial and Industrial Solid Waste Incineration Units which Commenced Construction On or Before November 30, 1999.” Therefore, PCD's mechanism for enforcing the standards and conditions of 40 CFR 60, subpart DDDD, is Regulation No. 17. On the basis of these statutes and rules of the Metropolitan Board of Health, the State Plan is approved as being at least as protective as the Federal requirements for existing CISWI units.
PCD adopted all emission standards and limitations applicable to existing CISWI units. These standards and limitations have been approved as being at least as protective as the Federal requirements contained in subpart DDDD for existing CISWI units.
PCD submitted the compliance schedule for CISWIs under their jurisdiction in Nashville/Davidson County. This portion of the Plan has been reviewed and approved as being at least as protective as Federal requirements for existing CISWI units.
PCD submitted an emissions inventory of all designated pollutants for CISWI units under their jurisdiction in Nashville/Davidson County. This portion of the Plan has been reviewed and approved as meeting the Federal requirements for existing CISWI units.
PCD includes its legal authority to require owners and operators of designated facilities to maintain records and report to their Agency the nature and amount of emissions and any other information that may be necessary to enable their Agency to judge the compliance status of the facilities in Appendix 3 of the State Plan. In Appendix 3, PCD also submits its legal authority to provide for periodic inspection and testing and provisions for making reports of CISWI emissions data, correlated with emission standards that apply, available to the general public.
The State Plan outlines the authority to meet the requirements of monitoring, recordkeeping, reporting, and compliance assurance. This portion of the Plan has been reviewed and approved as being at least as protective
This action approves the State Plan submitted by Tennessee for the PCD for Nashville/Davidson County to implement and enforce subpart DDDD, as it applies to existing CISWI units only. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 6, 2005 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a 111(d)/129 plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/129 plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 6, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal.
42 U.S.C. 7401
The Plan applies to existing Commercial and Industrial Solid Waste Incineration Units that Commenced Construction On or Before November 30, 1999, in Nashville/Davidson County.
Federal Communications Commission.
Final rule; announcement of list of wireless domain names now available to public.
In this document the Consumer & Governmental Affairs Bureau, on delegated authority from the Federal Communications Commission (Commission), announces the publication of the list of wireless domain names, in accordance with an order previously approved by the Commission and information collections requirements previously approved by the Office of Management and Budget, both of which were already published in the
Persons or entities sending Mobile Service Commercial Messages without prior express authorization from individual wireless subscribers must comply by March 10, 2005.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Kelli Farmer, Consumer Policy Division, Consumer & Governmental Affairs Bureau at (202) 418-2512 (voice), or e-mail
On August 12, 2004, the Commission released an
On February 7, 2005, the Federal Communications Commission (Commission) first made available to the public a list of wireless domain names that are used to transmit electronic messages to subscribers of commercial mobile service, such as cellular service, Personal Communications Service (PCS) and enhanced Specialized Mobile Radio Services (SMRS). This list is published in accordance with the Commission's Order implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act (
The
The list of wireless mail domain names can be seen and downloaded in several formats from
As explained in the
The official list, which includes the date that each mail domain name was added to the list, will be updated regularly. Those members of the public who rely upon the list to identify wireless domain names are urged to check the list monthly. A paper version will be available at the Commission's headquarters in Washington, DC. Any party who cannot access the list electronically and needs to view a paper
On December 17, 2004, the Commission issued a
As provided in 47 CFR 64.3100, no person or entity may initiate any mobile service commercial message unless:
(1) That person or entity has the express prior authorization of the addressee as described in 47 CFR 64.3100(d); or
(2) That person or entity is forwarding that message to its own address; or
(3) That person or entity is forwarding to an address provided that (i) the original sender has not provided any payment, consideration or other inducement to that person or entity and (ii) that message does not advertise or promote a product, service, or Internet Web site of the person or entity forwarding the message; or
(4) The address to which that message is sent or directed does not include a reference to a domain name that has been posted on the FCC's wireless domain names list for a period of at least 30 days before that message was initiated, provided that the person or entity does not knowingly initiate a mobile service commercial message.
Federal Communications Commission.
Final rule.
This document grants four new FM broadcast allotments in Adams, Massachusetts; Ashtabula, Ohio; Crested Butte, Colorado; Lawrence Park, Pennsylvania. The Audio Division, Media Bureau, at the request of Dana Puopolo, allots Channel 255A at Adams, Massachusetts, as the community's local aural transmission service. That allotment also requires a site change for Channel 255A at Rosendale, NY. Channel 255A is allotted to Adams in compliance with the Commission's minimum distance separation requirements with a site restriction of 1.6 kilometers (1 mile) west of the community. The reference coordinates for Channel 255A at Adams are 42-37-12 NL and 73-08-12 WL. The reference coordinates for Channel 255A at Rosendale are 41-54-47 NL and 74-09-00 WL. Since Adams is located within 320 kilometers (200 miles) of the U.S.-Canadian border, concurrence from the Canadian government has been received.
Effective April 4, 2005.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Victoria M. McCauley, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 04-357, 04-358, 04-359, 04-360, adopted February 16, 2005 and released February 18, 2005. The full text of this Commission document is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or
The Audio Division at the request of Dana Puopolo, allots Channel 241A at Ashtabula, Ohio, as the community's fourth local aural transmission service. Channel 241A is allotted to Ashtabula in compliance with the Commission's minimum distance separation requirements with a site restriction of 1.5 kilometers (.09 miles) northwest of the community. The reference coordinates for Channel 241A at Ashtabula are 41-52-38 NL and 80-47-49 WL. Since Ashtabula is located within 320 kilometers (200 miles) of the U.S.-Canadian border, concurrence from the Canadian government has been received as a specially negotiated short-spaced allotment to protect Station CFPL-FM, Channel 240C1, London, Ontario, Canada.
The Audio Division at the request of Linda Davidson allots Channel 246C3 at Crested Butte, Colorado, as the community's second local aural transmission service. Channel 246C3 is allotted to Crested Butte in compliance with the Commission's minimum distance separation requirements with a site restriction of 8.0 kilometers (5.0 miles) east of the community. The reference coordinates for Channel 246C3 at Crested Butte are 38-50-42 NL and 106-54-00 WL.
The Audio Division at the request of Dana Puopolo allots Channel 224A at Lawrence Park, Pennsylvania, as the community's first local aural transmission service. Channel 224A is allotted to Lawrence Park in compliance with the Commission's minimum distance separation requirements with a site restriction of 10.6 kilometers (6.6 miles) southwest of the community. The reference coordinates for Channel 224A at Lawrence Park are 42-06-00 NL and 80-07-48 WL. Lawrence Park is located within 320 kilometers (200 miles) of the U.S. Canadian border. Thus, concurrence of the Canadian government has been received for this allotment. It will be a specially negotiated short-spaced allotment limited to 225 watts ERP and 100 meters HAAT to protect Station CJBX-FM, Channel 224B, London, Ontario.
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Brewster Broadcasting Co. in its counterproposal to a petition for rulemaking by John Garabedian, allots Channel 254A at East Harwich, Massachusetts, as the community's first local FM service. Channel 254A can be allotted to East Harwich, Massachusetts, in compliance with the Commission's minimum distance separation requirements with a site restriction of 5.7 km (3.5 miles) southeast of East Harwich. The coordinates for Channel 254A at East Harwich, Massachusetts, are 41-40-33 North Latitude and 69-58-03 West Longitude.
Effective April 4, 2005.
Deborah Dupont, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS announces the final initial 2004 fishing year specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT quotas for each of the established domestic fishing categories, to set General category effort controls, and to establish a catch-and-release provision for recreational and commercial BFT handgear vessels during a respective quota category closure. This action is necessary to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The final rule is effective from April 4, 2005.
Copies of the supporting documents including the Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) and the 1999 Atlantic Tunas, Swordfish, and Sharks Fishery Management Plan (1999 FMP) may be obtained from Brad McHale, Highly Migratory Species Management Division, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. These documents are also available from the Highly Migratory Species Division website at
Brad McHale at (978) 281-9260.
Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).
Background information about the need for the final initial BFT quota specifications, General category effort controls, and establishment of a catch-and-release provision was provided in the preamble to the proposed rule (69 FR 71771, December 10, 2004), and is not repeated here. Therefore, by this final rule, NMFS announces the final
Two corrections to BFT recreational landing estimates contained in the proposed rule have been incorporated in this final rule. The first correction adjusts the 2002 BFT recreational landings estimate from 651.1 mt, to 641.6 mt; a difference of minus 9.5 mt. Also, the 2003 BFT recreational landings estimate of 411.7 mt has been corrected to 410.7 mt, a difference of minus 1.0 mt. NMFS made these corrections per a review of landings estimates made in the 2002-2003 U.S. Recreational Fishery Landings Estimates for White Marlin, Blue Marlin, and Bluefin Tuna Report, available at www.nmfs.noaa.gov/sfa/hms/.
For the 2004 fishing year, NMFS proposed a series of blocks of restricted fishing days (RFDs) to extend the General category for as long as possible through the October through January time-period. The coastwide General category closed on January 4, 2005 (70 FR 302, January 4, 2005) and therefore the proposed RFDs were not needed.
2004 Final Initial Quota Specifications
In accordance with the 2002 ICCAT Recommendation, the ICCAT Recommendation regarding the dead discard allowance, the 1999 FMP percentage shares for each of the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(9)(ii), NMFS establishes final initial quota specifications for the 2004 fishing year as follows: General category — 659.0 mt; Harpoon category — 81.4 mt; Purse Seine category — 389.4 mt; Angling category — 76.5 mt; Longline category — 171.2 mt; and Trap category — 2.3 mt. Additionally, 36.6 mt will be allocated to the Reserve category for inseason allocations, including providing for a late season General category fishery, or to cover scientific research collection and potential overharvest in any category except the Purse Seine category. The overall final initial BFT quota for the 2004 fishing year equals 1416.4 mt.
Based on the above final initial specifications, the Angling category quota of 76.5 mt will be further subdivided as follows: School BFT — 24.6 mt, with 9.5 mt to the northern area (north of 39° 18′ N. latitude), 10.7 mt to the southern area (south of 39° 18′ N. latitude), plus 4.4 mt held in reserve; large school/small medium BFT — 49.7 mt, with 23.5 mt to the northern area and 26.2 mt to the southern area; and large medium/giant BFT — 2.2 mt, with 0.7 mt to the northern area and 1.5 mt to the southern area.
The 2002 ICCAT Recommendation included an annual 25 mt set-aside quota to account for bycatch of BFT related to directed longline fisheries in the vicinity of the management area boundary, defined as the Northeast Distant statistical area (NED) (68 FR 56783, October 2, 2003). This set-aside quota is in addition to the overall incidental longline quota to be subdivided in accordance to the North/South allocation percentages mentioned below. Thus, the Longline category quota of 171.2 mt will be subdivided as follows: 58.2 mt to longline vessels landing BFT north of 31° N. latitude; 49.2 mt to longline vessels land BFT harvested from the NED; and 63.8 mt to longline vessels landing BFT south of 31° N. latitude.
For the last several years, NMFS has implemented General category time-period subquotas to increase the likelihood that fishing would continue throughout the entire General category season. The subquotas are consistent with the objectives of the 1999 FMP and are designed to address concerns regarding allocation of fishing opportunities, to assist with distribution and achievement of optimum yield, to allow for a late season fishery, and to improve market conditions and scientific monitoring.
The 1999 FMP divides the annual General category quota into three time-period subquotas. Each time-period and percentage of General category quota allocated to that time- period are as follows: June-August, 60 percent; September, 30 percent; and for October-January, 10 percent. These percentages are applied to the final initial 2004 coastwide General category quota of 659.0 mt, minus 10.0 mt reserved for the New York Bight fishery. Therefore, of the available 649.0 mt coastwide quota, 389.4 mt are available in the period beginning June 1 and ending August 31; 194.7 mt are available in the period beginning September 1 and ending September 30; and 64.9 mt are available in the period beginning October 1 and ending January 31, 2005.
During the 2004 fishing year, NMFS conducted two inseason quota transfers using the authority under the implementing regulations at 50 CFR § 635.28(a)(8). For each inseason transfer, NMFS determined it was warranted based on the consideration of the criteria governing quota transfers between categories, the 2004 proposed BFT specifications including carryover adjustments from prior years and an assessment of the commercial and recreational landings data to date. The first inseason adjustment transferred 223.1 mt of General category quota to the Angling category and transferred a combined quota of 161.9 mt from the General, Harpoon, and Incidental Longline categories to the Reserve category (69 FR 71732, December 10, 2004). The second inseason adjustment transferred 100 mt from the Purse seine category to the Reserve category (70 FR 302, January 4, 2005). The result of these inseason transfers is an adjustment of any remaining available quota from these final initial specifications.
NMFS implements a rule change to allow vessels participating in the BFT recreational and commercial handgear fisheries to catch and release BFT after their respective quota categories have closed. This provision addresses concerns that requiring BFT to be tagged, once a closure has taken place, may lead to unnecessary post-release mortality associated with anglers who are inexperienced with proper tagging techniques and may improperly place the tag on the BFT, unintentionally killing or injuring the fish. This provision allows vessels owners/operators to tag-and-release BFT after a respective quota category closure has taken place, but would not require them to do so as part of a catch-and-release program.
These final initial specifications, general category effort controls, and the catch-and-release provision are published under the authority of the Magnuson-Stevens Act and ATCA. The Assistant Administrator for Fisheries (AA) has determined that the regulations contained in this final rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic HMS fisheries.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule and submitted it to the Chief Counsel for Advocacy of the Small Business Administration. No comments were received on the IRFA concerning the economic impact of this final rule. A summary of the Final Regulatory Flexibility Analysis (FRFA) is provided below.
The analysis for the FRFA assesses the impacts of the various alternatives on the vessels that participate in the BFT fisheries, all of which are considered small entities. For the quota allocation alternatives, NMFS has estimated the average impact of the alternatives on individual categories and the vessels within those categories. As mentioned above, the 2002 ICCAT recommendation increased the BFT quota allocation to 1,489.6 mt. This increase, in comparison to pre-2002 levels, includes 77.6 mt to be redistributed to the domestic fishing categories based on the allocation percentages established in the 1999 FMP, as well as a set-aside quota of 25 mt to account for incidental catch of BFT related to directed pelagic longline fisheries in the NED. In 2003, preliminary annual gross revenues from the commercial BFT fishery were approximately $11.5 million. There are approximately 10,914 vessels that are permitted to land and sell BFT under four BFT quota categories. The four quota categories and their preliminary 2003 gross revenues are General ($7,476,461), Harpoon ($772,810), Purse seine ($2,546,236), and Incidental Longline ($635,498). Note that all dollars have been converted to 1996 dollars using the Consumer Price Index Conversion Factors for comparison purposes. The analysis for the FRFA assumes that all category vessels have similar catch and gross revenues. While this assumption may not be entirely valid, the analyses are sufficient to show the relative impact of the various preferred alternatives on vessels.
For the allocation of BFT quota among domestic fishing categories, three alternatives were considered: the No Action alternative, the final action that will allocate the ICCAT-recommended quota to domestic categories in accordance with the 2002 ICCAT recommendation and the 1999 FMP, and a slight variation of the final action, that also included a 25 mt limit on the amount of quota that can accumulate from year-to-year within the pelagic longline quota set-aside in the NED.
The no action alternative was rejected because it was not consistent with the purpose and need for this action, ATCA, and the 1999 FMP. It would maintain U.S. BFT quota levels at a scale and distribution similar to the 2002 fishing
For the General category effort controls, two alternatives were considered: the alternative to designate RFDs according to a schedule published in the initial BFT specifications; and the selected no action alternative, which does not publish RFDs with the initial specifications, but would implement them during the season as needed. No other alternatives were considered as they would not have met the purpose and need for this issue. The no action alternative was selected due to the coastwide General category BFT fishery closing for the season on January 4, 2005 (70 FR 302). The economic impacts associated with this selected alternative would be considered neutral as the General category BFT fishery harvested, almost in entirety, the available quota for the 2004 fishing year. The economic impacts associated with the rejected alternative would also be considered neutral, as the final initial specifications would have published after this fishery had closed.
For the catch-and-release provision, NMFS considered three alternatives: no action alternative (maintain the tag-and-release requirement once a handgear quota category has been closed), an alternative to disallow all fishing for BFT once a handgear quota category has been closed, and the final action which will allow vessels to catch-and-release BFT once a handgear quota category has been closed.
Although NMFS understands that recreational HMS fisheries have a large influence on the economies of coastal communities, even when vessels are engaged in tag-and-release or catch-and-release fishing, NMFS has little current information on the costs and expenditures of anglers or the businesses that rely on them. Based on conversations with representatives of the handgear sectors of the BFT fishery, NMFS has rejected the no action alternative because it would have slightly negative economic impacts. This assessment is attributed to vessel owner/operators, who are not comfortable tagging BFT, or those owner/operators who are unable to obtain a tagging kit in a timely fashion, not taking trips to pursue BFT. The second alternative was rejected because it would have even greater negative economic impacts by prohibiting vessels from taking trips targeting BFT after a quota is attained. The final action will have positive economic impacts on those associated with the BFT handgear fishery. This final action, will positively impact numerous economic aspects of the BFT handgear fishery due to the willingness of more vessel owner/operators to actively take trips targeting BFT after a closure has taken place. This final action will also allow for the tagging of BFT, but would not require owner/operators to do so.
None of the final actions in this document would result in additional reporting, recordkeeping, compliance, or monitoring requirements for the public. This final rule has also been determined not to duplicate, overlap, or conflict with any other Federal rules.
NMFS prepared an Environmental Assessment (EA) for this final rule, and the AA has concluded that there would be no significant impact on the human environment. The EA presents analyses of the anticipated impacts of these final actions and the alternatives considered. A copy of the EA and other analytical documents prepared for this final rule, are available from NMFS via the Federal e-Rulemaking Portal (see ADDRESSES).
This final rule has been determined to be not significant for purposes of Executive Order 12866.
This final rule contains no new collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). Notwithstanding any other provisions 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
On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under Section 7 of the ESA. A BiOp, issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction. NMFS has implemented the reasonable and prudent alternatives required by this BiOp. This BiOp also concluded that the continued operation of the purse seine and handgear fisheries may adversely affect, but is not likely to jeopardize, the continued existence of any endangered or threatened species under NMFS jurisdiction. NMFS has implemented the reasonable and prudent alternative (RPA) required by this BiOp.
Subsequently, based on the management measures in several proposed rules, a new BiOp on the Atlantic pelagic longline fishery was issued on June 1, 2004. The 2004 BiOp found that the continued operation of the fishery was not likely to jeopardize the continued existence of loggerhead, green, hawksbill, Kemp's ridley, or olive ridley sea turtles, but was likely to jeopardize the continued existence of leatherback sea turtles. The 2004 BiOp identified RPAs necessary to avoid jeopardizing leatherbacks, and listed the Reasonable and Prudent Measures (RPMs) and terms and conditions necessary to authorize continued take as part of the revised incidental take statement. On July 6, 2004, NMFS published a final rule (69 FR 40734) implementing additional sea turtle bycatch and bycatch mortality mitigation measures for all Atlantic vessels with pelagic longline gear onboard. NMFS is working on implementing the other RPMs and other measures in the 2004 BiOp. On August 12, 2004, NMFS published an Advance Notice of Proposed Rulemaking (69 FR 49858) to request comments on potential regulatory changes to further
The area in which this final action is planned has been identified as Essential Fish Habitat (EFH) for species managed by the New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the South Atlantic Fishery Management Council, the Gulf of Mexico Fishery Management Council, the Caribbean Fishery Management Council, and the HMS Management Division of the Office of Sustainable Fisheries at NMFS. It is not anticipated that this final action will have any adverse impacts to EFH and, therefore, no consultation is required.
NMFS has determined that the list of actions in this final rule are consistent to the maximum extent practicable with the enforceable policies of the coastal states in the Atlantic, Gulf of Mexico, and Caribbean that have Federally approved coastal zone management programs under the Coastal Zone Management Act (CZMA). On December 10, 2004, the proposed regulations were submitted to the responsible state agencies for their review under Section 307 of the Coastal Zone Management Act. As of February 11, 2005, NMFS has received six responses, all concurring with NMFS' consistency determination. Because no responses were received from other states, their concurrence is presumed.
Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.
16 U.S.C. 971
(a) * * *
(2) On an RFD, no person aboard a vessel that has been issued a General category Atlantic Tunas permit may fish for, possess, retain, land, or sell a BFT of any size class, and catch-and-release or tag-and-release fishing for BFT under § 635.26 is not authorized from such vessel. On days other than RFDs, and when the General category is open, one large medium or giant BFT may be caught and landed from such vessel per day. NMFS will annually publish a schedule of RFDs in the
(4) To provide for maximum utilization of the quota for BFT, NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel. Such increase or decrease will be based on a review of dealer reports, daily landing trends, availability of the species on the fishing grounds, and any other relevant factors. NMFS will adjust the daily retention limit specified in paragraph (a)(2) of this section by filing with the Office of the Federal Register for publication notification of the adjustment. Such adjustment will not be effective until at least 3 calendar days after notification is filed with the Office of the Federal Register for publication, except that previously designated RFDs may be waived effective upon closure of the General category fishery so that persons aboard vessels permitted in the General category may conduct catch-and-release or tag-and-release fishing for BFT under § 635.26.
(a) * * *
(1) Notwithstanding the other provisions of this part, a person aboard a vessel issued a permit under this part, other than a person aboard a vessel permitted in the General category on a designated RFD, may fish with rod and reel or handline gear for BFT under a catch-and-release or tag-and-release program. When fishing under a tag-and-release program, vessel owner/operators should use tags issued or approved by NMFS. If a BFT is tagged, the tag information, including information on any previously applied tag remaining on the fish, must be reported to NMFS. All BFT caught under the catch-and-release or tag-and-release programs must be returned to the sea immediately with a minimum of injury.
U.S. Nuclear Regulatory Commission.
Proposed rule and Issuance of Draft Regulatory Guide.
The Nuclear Regulatory Commission (NRC) proposes to amend its fire protection regulations for nuclear power facilities operating prior to January 1, 1979. The amendment would allow nuclear power plant licensees to use manual actions by plant operators as an alternative method to achieve hot shutdown conditions in the event of fires in certain plant areas, provided that the actions are evaluated against specified criteria and determined to be acceptable and that fire detectors and an automatic fire suppression system are provided in the fire area. The Commission believes that the proposed action would provide realistically conservative regulatory acceptance criteria for operator manual actions to achieve and maintain hot shutdown condition.
The NRC is also proposing and requesting comments on a draft regulatory guide to support this proposed rulemaking. The NRC has developed the Regulatory Guide Series to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The draft regulatory guide, entitled “Demonstrating the Feasibility and Reliability of Operator Manual Actions in Response to Fire,” is temporarily identified by its task number, DG-1136, which should be mentioned in all related correspondence. This proposed regulatory guide offers guidance for NRC licensees and applicants to use in implementing the feasibility and reliability criteria that the staff developed for post-fire operator manual actions.
Submit comments on the proposed rule and the draft regulatory guide by May 23, 2005. Submit comments specific to the information collection aspects of this rule by April 6, 2005. Comments received after these dates will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after these dates.
You may submit comments on the proposed rule by any one of the following methods. Please include the following number RIN 3150 AH-54 and/or DG-1136 in the subject line of your comments. Comments on the rulemakings or the draft regulatory guide submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want publicly disclosed.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to:
Address questions about our rulemaking website to Carol Gallagher (301) 415-5905; e-mail
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 am and 4:15 pm Federal workdays. (Telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
You may submit comments on the information collections by the methods indicated in the Paperwork Reduction Act Statement.
David T. Diec, 301-415-2834,
Section 50.48, Fire protection, requires each operating power plant to have a fire protection plan that satisfies Criterion 3 of Appendix A to 10 CFR part 50. Criterion 3 requires structures, systems, and components important to safety to be designed and located to minimize, consistent with other safety requirements, the probability and effect of fires and explosions. The specific fire protection requirements for safe shutdown capability of a plant are further discussed in paragraph G of Section III of Appendix R to 10 CFR part 50. The more specific § 50.48 and Appendix R requirements were added following a significant fire that occurred in 1975 at the Browns Ferry Nuclear Plant. The fire damaged control, instrumentation, and power cables for redundant trains of equipment necessary for safe shutdown.
In response to the fire, an NRC investigation found that the independence of redundant equipment at Browns Ferry was negated by a lack of adequate separation between cables for redundant trains of safety equipment. The investigators subsequently recommended that a suitable combination of electrical isolation, physical distance, fire barriers, and sprinkler systems should be used to maintain the independence of redundant safety equipment. In response to these recommendations, the NRC interacted with stakeholders for several years to identify and implement necessary plant fire protection improvements. In 1980, NRC promulgated § 50.48 to establish fire protection requirements and Appendix R to 10 CFR part 50 for certain generic fire protection program issues, including paragraph III.G, fire protection of safe shutdown capability. The requirements for separation of cables and equipment associated with redundant hot shutdown trains were promulgated in paragraph III.G.2.
Paragraph III.G.2 of Appendix R requires that cables and equipment of redundant trains of safety systems in the same fire area be separated by either:
a. A 3-hour fire barrier, or
b. A horizontal distance of more than 20 feet with no intervening combustibles in conjunction with fire detectors and an automatic fire suppression system, or
c. A 1-hour fire barrier combined with fire detectors and an automatic fire suppression system.
Appendix R applies to only those licensees who received operating licenses before January 1, 1979. Plants licensed after January 1, 1979, are not required to meet Appendix R. These plants were licensed to meet Branch Technical Position CMEB 9.5-1, “Guidelines for Fire Protection for Nuclear Power Plants,” that contains criteria similar to the Appendix R requirements. Specific licensing basis information for these plants is usually contained in license conditions issued at time of licensing.
Because the rule was to apply to facilities which were already built, the NRC knew that compliance with various parts of Appendix R might be difficult at some facilities. Accordingly, the NRC included a provision which allowed licensees to submit alternative acceptable methods for protecting redundant equipment for NRC review and approval through an exemption process. During implementation of the Appendix R requirements, the NRC reviewed and approved a large number of exemptions for 60 licensees who proposed alternative acceptable methods of compliance in various areas, including numerous exemptions from paragraph III.G.2.
In the early 1990s, generic problems arose with Thermolag
In 2002, the NRC met with nuclear power plant licensees and informed them that the use of unapproved manual actions was not in compliance with paragraph III.G.2. During a meeting on June 20, 2002, the Nuclear Energy Institute representative stated that there was widespread use of operator manual actions throughout the industry based on the industry's understanding of past practice and existing NRC guidance. The industry representative also stated that licensees' use of unapproved manual actions had become prevalent even before the concerns arose with Thermolag material. Subsequent to the public meeting, the NRC developed criteria for inspectors to use in assessing the safety significance of violations resulting from licensee use of unapproved operator manual actions. The criteria were based on past practice and experience by NRC inspectors when reviewing operator manual actions used to comply with Appendix R, paragraph III.G.3, on alternate reactor shutdown capability. Licensees were familiar with these criteria through their interactions with the NRC staff during the implementation of the NRC inspection process. These criteria were issued in the revision to Inspection Procedure 71111.05 in March 2003. While unapproved operator manual actions are still violations, those actions that meet the interim criteria are viewed to have low or no safety significance.
Instead of continuing the current practice of requiring all noncompliant licensees to submit individual exemption requests for staff review to determine if their operator manual actions are acceptable, the Commission believes that amending Appendix R to 10 CFR part 50 would be the most orderly and efficient way to provide an option for licensees to utilize acceptable operator manual actions in lieu of the separation or barrier requirements in paragraph III.G.2. In this way the NRC
The NRC staff developed a rulemaking plan (SECY-03-0100) and the Commission approved the staff plan on September 12, 2003. The rule change would revise 10 CFR part 50, Appendix R, paragraph III.G.2 to allow licensees to implement acceptable operator manual actions after documenting that the actions met the regulatory acceptance criteria. Through the established Reactor Oversight Process (ROP), the NRC will continue to inspect licensees' methodologies for achieving and maintaining hot shutdown conditions in accordance with the requirements set forth in paragraph III.G.2 of Appendix R to 10 CFR part 50. The NRC fire protection inspectors will verify that the licensees' operator manual actions met the NRC acceptance criteria and will evaluate the licensees' analyses, procedures and training, implementation, and demonstration of operator manual actions to ensure the licensees have adequately demonstrated the feasibility and reliability of manual actions.
The Commission proposes to allow the use of operator manual actions coincident with fire detectors and an automatic fire suppression system as an additional alternative method for compliance with paragraphs III.G.2(a), (b) or (c) of Appendix R.
The Commission proposes to add a new paragraph c-1 to paragraph III.G.2 of 10 CFR part 50 to codify the use of operator manual actions in conjunction with fire detectors and an automatic fire suppression system, as an additional alternative compliance method. Implementing any of the alternatives in paragraph III.G.2 will provide reasonable assurance that at least one method for achieving and maintaining the reactor in a hot shutdown condition will remain available during and after a postulated fire. The basis for this determination is provided below.
The Commission's fire protection requirements constitute a defense-in-depth approach to protect safe shutdown functions. The overall objectives of the NRC's fire protection regulations are to minimize the potential for fires and explosions; to rapidly detect, control, and extinguish fires that do occur; and to ensure that the fires will not prevent the accomplishment of necessary safe shutdown functions and will not significantly increase the risk of radioactive releases to the environment. The NRC has concluded if these objectives are met, there is reasonable assurance that a licensed facility is providing adequate protection of public health and safety. These objectives are met by a set of NRC requirements for control of combustible materials and ignition sources, fire detection and suppression systems, fire brigade procedures and training, and physical separation of cables and equipment of redundant trains of safe shutdown equipment.
The physical separation requirements in paragraph III.G.2 of Appendix R are one component of the NRC's overall fire protection objectives. In paragraph III.G.2, the NRC specified three different methods for providing separation of cables and equipment of redundant trains of equipment located in the same fire area. These three options for compliance with paragraph III.G.2 offer sufficient but varying levels of protection. In general, the 3-hour passive fire barrier is judged to offer more protection than either of the other options (
In issuing the current Appendix R, paragraph III.G.2, requirements on physical separation of safe shutdown systems, the Commission recognized that strict compliance with the III.G.2 criteria might be difficult for certain licensees at existing facilities. At that time, the Commission was aware that other fire protection alternatives might exist that could provide adequate fire protection at these facilities. For this reason, the Commission included an
The NRC recognized in the SECY-03-0100 rulemaking plan that “[r]eplacing a passive, rated, fire barrier * * * with human performance activities can increase risk. For some simple operator manual actions, the risk increase associated with human performance may be minimal. For other actions, unless the operator manual actions are feasible, the risk increase could be significant * * * However, if the operator manual actions are feasible, the overall risk increase is minimal.”
On the basis of inspection experience, the NRC has concluded that certain manual actions can be accomplished and provide an adequate level of safety to satisfy the underlying purpose of the fire protection rule for the areas set forth in paragraph III.G.2. In addition, the NRC has reviewed and granted certain exemption requests for the use of manual actions in lieu of the separation criteria of paragraph III.G.2. This experience demonstrates that properly analyzed and implemented manual actions provide an adequate level of assurance that a nuclear power plant could achieve and maintain hot shutdown conditions.
Due to misunderstanding of acceptable past practice and existing fire protection guidance that led licensees to implement unapproved operator manual actions, the NRC may be faced with a large number of operator manual action exemption requests from licensees. To provide a more efficient and effective process and to ensure more uniform and consistent regulatory treatment of these cases, the NRC is proposing to codify conservative, state-of-the-art acceptance criteria for licensees to use in evaluating operator manual actions to ensure that they are both feasible and reliable. The NRC believes that codifying this alternative in the rule will be more efficient than using the exemption process, and will provide for enhanced safety by allowing resources to be focused on safety rather than administrative compliance.
Something that is “feasible” is “capable of being accomplished or brought about; possible.” Something that is “reliable” will “yield the same or compatible results in different experiments or statistical trials; dependably repeatable.” To credit operator manual actions under paragraph III.G.2 for outside containment, the licensee must prove to the satisfaction of the NRC not only that the actions can be successfully accomplished, but also that they can be accomplished repeatedly by all personnel who are required to perform the actions. Together, proof that the operator manual actions are both feasible and reliable provides the level of reasonable assurance necessary for credited operator manual actions to be in compliance with paragraph III.G.2.
If shown to be feasible and reliable, operator manual actions are likely to be successfully achieved, and any potential increases in risk to the public due to their use will be minimal. Requiring the operator manual actions to meet conservative acceptance criteria provides the NRC with reasonable assurance that such operator manual actions can be accomplished to safely shut down the plant in the event of a fire. These criteria maintain safety by ensuring that licensees perform thorough evaluations of the required operator manual actions and pre-plan equipment needs. NRC fire protection inspectors will verify that licensees' documented operator manual actions meet the NRC acceptance criteria through the existing triennial inspection process. The use of operator manual actions does not diminish the other defense-in-depth objectives of the NRC fire protection program (
The proposed paragraph III.P specifies the required acceptance criteria which must be met before a licensee may utilize operator manual actions to comply with paragraph III.G.2 of Appendix R. A detailed discussion of each criterion is provided further in this Statement of Consideration. These criteria are as follows:
1. For purposes of this section, operator manual actions means the integrated set of actions needed to ensure that a redundant train of systems necessary to achieve and maintain hot shutdown conditions located within the same area outside the primary containment is free of fire damage.
2. A licensee relying on operator manual actions must meet all of the following acceptance criteria:
(a)
(1) The analysis must contain a postulated fire timeline showing that there is sufficient time to travel to action locations and perform actions required to achieve and maintain the plant in a hot shutdown condition under the environmental conditions expected to be encountered without jeopardizing the health and safety of the operator performing the manual actions. The fire timeline shall extend from the time of initial fire detection until the time when the ability to achieve and maintain hot shutdown is reached, and shall include a time margin that reasonably accounts for all important variables, including (i) differences between the analyzed and actual conditions and (ii) human performance uncertainties that may be encountered.
(2) The analysis must address the functionality of equipment or cables that could be adversely affected by the fire or its effects but still used to achieve and maintain hot shutdown.
(3) The analysis must identify all equipment required to accomplish the operator manual action within the postulated timeline, including (but not limited to) (i) all indications necessary to identify the need for the operator manual actions, enable their performance, and verify their successful accomplishment, and (ii) any necessary communications, portable, and life support equipment.
(b)
(c)
(d)
These acceptance criteria for operator manual actions are intended to assure the safe shutdown goals and objectives for operating reactors as required in 10 CFR 50.48. The primary objective for safe shutdown is to maintain fuel integrity (
The applications of these acceptance criteria are as follows. First, the criteria are the means by which the NRC will establish standards that provide a reasonable level of assurance that operator manual actions will be satisfactorily and reliably performed to bring the plant to a hot shutdown condition, thus protecting public health and safety. Second, a standard set of acceptance criteria will permit both the licensees and NRC to establish consistency as to what operator manual actions will be allowed. Third, the criteria will provide the parameters which both the licensees and NRC will use to conduct evaluations and inspections in a thorough manner. The supporting basis for each criterion is discussed in detail below.
The acceptance criteria in the proposed rule are structured to ensure both feasibility and reliability of the operator manual actions. To credit operator manual actions, the licensee must prove not only that the actions can be successfully accomplished (are feasible), but also that they can be done so repeatedly (are reliable). Central to the approach is the preparation of an analysis that determines what actions must be taken in order to reach a hot shutdown condition. This analysis would also identify the time available (timeline) for successful performance of such actions. A demonstration of the accomplished operator manual actions within the established timeline verifies the feasibility of such actions. In order to also achieve reliability of the actions, the Commission is proposing a criterion for a time margin needed to complete the actions because of potential variations in fire characteristics, plant conditions, and human performance that the demonstration cannot adequately address. This concept is further described in the sections below.
The Commission will require that a licensee perform an analysis to determine the feasibility and reliability of operator manual actions. As part of the analysis, there shall be a fire timeline, which extends from the initial fire detection to the achievement of maintainable hot shutdown conditions, to define the time boundaries of the analysis for the fire scenario in which the operator manual actions will be performed. The analysis must identify all actions that must be completed, the equipment needed, the number of people needed, the communications equipment required, and the time available to perform the actions before unsafe plant conditions occur (
Proper demonstration requires that the licensee meet all operator manual action acceptance criteria other than Time Margin (this is evaluated after all other criteria, including requirements in section 2(d), have been met) and show that at least one randomly-selected, established crew can successfully perform the actions within an acceptable time frame. For example, if there are questions about whether operators can reach the locations where they must perform the manual actions, these questions should be addressed to the extent practicable during the demonstration. However, successful demonstration does not fully determine reliability for the operator manual actions.
Additional factors must be considered to show that the actions can be performed reliably under the variety of conditions that could occur during a fire. For example, factors that the licensee may not be able to recreate in the demonstrations could cause further delay under real fire conditions (
In order to ensure that a particular action could be performed reliably, licensees must show that a sufficient amount of extra time (
The analysis should include realistically conservative scenarios, and such variables as environment and human performance uncertainties should be considered in the time margin. For example, a licensee may perform a worst case demonstration that requires the operator to wear a self-contained breathing apparatus (SCBA), if there is a reasonable expectation that the operators will need to pass through a zone containing smoke in order to reach the location where the operator manual action is to be carried out.
Use of a time margin is an appropriate safety factor for ensuring realistically reliable operator manual actions. The rule would require the time margin to account for all important variables, including differences between the analyzed and actual conditions and for human performance uncertainties that may be encountered.
The factors necessitating the time margin are:
1. The time margin should account for what the licensee is not likely to be able to recreate in the demonstration that could cause further delay (
2. The time margin should account for the variability of fire and related plant conditions.
3. The time margin should account for the variability in human performance among individuals and between different crews and for the effects of human-centered factors that could become relevant during fire scenarios.
These factors are important considerations for the time margin for the following reasons:
1. They address likely limitations of the demonstration.
2. The demonstration can replicate only a subset of all possible fires and resulting variability in fire and plant conditions.
3. Some degree of human performance variability is to be expected, some of which could further delay the times to perform the desired actions during real fire situations.
In order to establish a standard to show time margin, it was necessary to establish a time margin (or margins) for fire-related operator manual actions to ensure that they would be reliably successful. In other words, if the licensee can meet all of the operator manual action acceptance criteria, which include demonstrating that at least one randomly-selected, established crew can successfully perform the actions, and show that the actions can be performed within an acceptable time frame that allows for adequate time margin to cover potential variations in plant conditions and human performance, then the operator manual action rule would be met. For example, as long as it can be shown that there is an “X-percent” time margin to perform the particular operator manual action, plant damage or an undesirable plant condition will still be avoided and all of the other criteria have been met, then there is confidence to conclude that the action will be performed reliably.
The establishment of an appropriate time margin requires a supported technical basis. While the best technical basis for a time margin would be empirical data from which it could be derived, a database search was unable to find relevant data that could be used directly for or generalized to the operator manual actions of interest. To further develop this concept, the NRC convened an initial expert panel to identify a time margin for inclusion in this proposed rule statement for further stakeholder consideration and feedback.
The expert panel members concluded that a time margin factor of at least 2 would ensure that the operator manual actions in response to fire are sufficiently reliable. For example, if the operator manual action can be shown typically to take less than 15 minutes, then at least 30 minutes (15×2) should be available to achieve and maintain hot shutdown. A time margin factor of at least 2 is assumed to absorb delays that might be caused by the following set of factors (1) the need to recover from or respond to unexpected difficulties or random problems associated with instruments or other equipment, or communication devices; (2) environmental and other effects that are not easily replicated in a demonstration, such as radiation, smoke, toxic gas effects, and increased noise levels; (3) limitations of the demonstration to account for all possible fire locations that may lend the need for such operator manual actions; (4) inability to show or duplicate the operator manual actions because of safety considerations while at power; and (5) individual operator performance factors, such as physical size and strength, cognitive differences, time pressure, and emotional responses. In addition, the time margin includes adequate time for personnel to recover from any initial errors in conducting the actions. The time margin concept could alternatively consist of a range of multiplicative values. For example, instead of a single multiplicative value of 2, perhaps a range of multiplicative values (
As with the discussion of the range of multiplicative values above, the time margin concept may have to include a minimum additive time (predetermined minimum amount of time added to the demonstrated time) necessary for certain situations. For example, the time in the demonstration is shown to be short (
The Commission requests opinions specifically on the time margin aspects because of stakeholder interest in this subject and the Commission's desire to consider all stakeholders' input for this important criterion.
Specifically, the Commission asks the following questions:
(A) Considering the factors for time margin discussed above (including the conditional dependence on a worst-case demonstration meeting all the other acceptance criteria), should the time margin consist of a single multiplicative factor (
(B) If a range is appropriate, what should the range be and what parameters or variables should be considered in determining which part of the range is applicable in a given situation? Please provide a basis for your proposed time frames or factors.
(C) Should there be a minimum additive time (
(D) Are there other means of establishing margin (
Paragraph 2(a)(1) of the proposed criteria requires that the fire timeline include a time margin that accounts for differences between the analyzed and actual conditions. Adverse environmental factors are one area of concern that must be considered because they affect the operator's mental or physical performance. The environmental factors must be weighed with respect to the location where the operator manual actions will be performed, as well as the access and egress routes to and from this location.
Paragraph 2(a)(2) of the criteria requires the analysis to address the functionality of equipment or cables that could be adversely affected by the fire but still used to achieve and maintain hot shutdown. For example, operators may rely upon valves to achieve and maintain hot shutdown conditions. If the functionality of the valves is adversely affected by the fire then it may degrade or prevent the performance of the required operator manual actions. As identified in Information Notice 92-18 for motor-operated valves, bypassing thermal overload protection devices (discussed in Regulatory Guide 1.106, “Thermal Overload Protection for Electric Motors on Motor Operated Valves” Rev. 1, ML 003740323) could jeopardize completion of the safety function or cause degradation of other safety systems due to sustained abnormal circuit currents that can arise from fire-induced “hot shorts.” Even if these overload protection devices are not bypassed, hot shorts can cause loss of power to motor-operated valves by tripping the devices. If an operator manual action requires the manual manipulation of a depowered motor-operated valve, such fire-induced damage could make the manipulation physically impossible. Therefore, if equipment to be used during operator manual actions could be affected by fire, the licensee must determine that the functionality of that equipment will not be adversely affected.
Plant systems, structures and components (SSCs) are used to achieve and maintain hot shutdown conditions. SSCs often require active intervention, through either automatic or manual means, to perform their required function. The analysis of the fire timeline must identify all such SSCs needed to achieve maintainable hot shutdown conditions from the time of initial fire detection, particularly those that require operator manual actions to perform their hot shutdown function and explain how active equipment will be operated. Diagnostic indications relevant to the SSCs' safety function may be critical to specific operator manual actions and interaction with this equipment. Diagnostic indications are the alerting, information, control, and feedback capability provided through instrumentation. They also provide sufficient information that determines if and when these interfaces must be effected. These indications would typically be needed to: (1) Enable the operators to determine which manual actions are appropriate for the fire scenario; (2) direct the personnel as to the proper performance of the operator manual actions; and (3) provide the necessary feedback to the operators verifying that the manual actions have had their expected results. Diagnostic indications are considered in the analysis via identification of the SSCs necessary to accomplish the operator manual action and evaluation of their availability under the fire and environmental conditions expected. Guidance on identifying needed indication is provided as in paragraph c.2 of the draft regulatory guide DG-1136, “Guidance for Demonstrating the Feasibility and Reliability of Operator Manual Actions in Response to Fire.”
Paragraph 2(a)(3)(ii) of the proposed criteria requires the analysis to identify all communications equipment necessary to accomplish the operator manual actions. Communications equipment may be needed to provide feedback between operators in the main control room and personnel out in the plant to ensure that any activities requiring coordination between them are clearly understood and correctly accomplished. The unpredictability of fires can force staff to deviate from planned activities, hence the need to consider constant and effective communications. Communications may be needed in the performance of sequential operator manual actions (where one action must be completed before another can be started) and provide verification that procedural steps have been accomplished, especially those that must be conducted at remote locations. Communications must be considered in the analysis by identifying the necessary communications equipment and ensuring their availability to the plant operators for the time needed to achieve and maintain hot shutdown. For example, if portable radios are to be used for communications then the analysis should list the equipment and confirm that the equipment can be used in the plant areas (
Paragraph 2(a)(3)(ii) of the proposed criteria requires the analysis to identify all portable equipment necessary to accomplish the operator manual actions. Portable equipment, especially tools such as keys to open locked areas, ladders to reach high locations, torque devices to turn valve handwheels, and electrical breaker rackout tools, can be essential to access and manipulate SSCs to successfully accomplish required operator manual actions. Similarly, life support equipment, such as self-contained breathing apparatuses (SCBA), may need to be worn to permit access to and egress from the locations where the operator manual actions must be performed since the routes could be negatively affected by fire effects, such as smoke, that propagate beyond the fire-involved area. Portable equipment must be considered in the analysis by identifying necessary equipment and ensuring their availability to the plant operators during the time needed to achieve and maintain hot shutdown. For example, if SCBA is necessary then the analysis should list the equipment and confirm that the equipment can be used in the plant areas (
Paragraph 2(b) of the proposed criteria requires that all manual actions be included in plant procedures, and that each operator receives training on these manual actions. The role of written plant procedures in the successful performance of operator manual actions is three-fold: (1) Assist the operators in correctly diagnosing the type of plant event that the fire may trigger, usually
Training on these procedures serves three supporting functions: (1) Establishes familiarity with the procedures, equipment, and potential (simulated) conditions in an actual event; (2) provides the level of knowledge and understanding necessary for the personnel performing the operator manual actions to be well-prepared to handle departures from the expected sequence of events; and (3) provides the personnel with the opportunity to practice their response without exposure to adverse conditions, thereby enhancing confidence that they can reliably perform their duties in an actual event. Determining that operators are appropriately trained on procedures entails establishing, implementing, and maintaining a training program that incorporates the instructional requirements necessary to provide qualified operators to perform the manual actions. Licensees are already required to establish training programs for licensed operator and nuclear plant personnel under 10 CFR 55.59 and 50.120, respectively. The procedures and training provided to operators and nuclear plant personnel will ensure that the supporting functions and roles discussed above can be met. Such procedures and training should be identified and addressed as in paragraph c.2 of the draft regulatory guide DG-1136, “Guidance for Demonstrating the Feasibility and Reliability of Operator Manual Actions in Response to Fire.” The Commission expects plant procedures to be available at or near the locations where the operator manual actions are to occur so that they are easily accessible to the operators.
Paragraph 2(c) of the proposed criteria requires that equipment and personnel necessary for feasible and reliable operator manual actions must be readily available and accessible. The equipment is available when its functionality is not adversely affected by the fire or its effects. Accessible means that the personnel should be able to find and reach the locations of the components and be able to manipulate the components. Accessibility and availability of equipment must be considered in the analysis by identifying necessary equipment, ensuring operators are knowledgeable of equipment locations, determining that accessibility of such equipment, and that the equipment will not be adversely affected by a fire or its effects. For example, operators may rely upon valves to achieve and maintain hot shutdown conditions. If the functionality of the valves is adversely affected by the fire or if the valves are not accessible for manipulation then the functionality of such valves may be degraded, thereby preventing the performance of the required operator manual actions.
The intent of the staffing requirement is to ensure that qualified personnel will be on site at all times such that hot shutdown conditions can be achieved and maintained in the event of a fire. An individual expected to perform the operator manual actions must not have collateral duties, such as fire fighting or security, during the evolution of the fire scenario. This individual should be exclusively available for the performance of required operator manual actions. Therefore, operating shift staffing levels should include enough personnel on watch for the performance of any operator manual actions that could arise as a result of a fire. The fire brigade would not be expected to perform actions other than those associated with fire fighting. Otherwise, the potential for interfering with either their fire fighting activities or the operator manual actions could exist, such that successful performance of one or the other, or both, could be impaired. For example, during a fire, an individual who is part of the five-person fire brigade could not perform the required operator manual actions because that individual is expected to participate in the fire fighting efforts.
The concepts of feasibility and reliability were examined under Criterion 2(a) of section III.P in connection with the fire timeline and time margin. Demonstration and time margin development complement each other. Paragraph 2(d) of the proposed criteria requires demonstration in order to establish the feasibility of operator manual actions. The demonstration criterion provides reasonable assurance that the operator manual actions can be performed in the analyzed time period for a range of conceivable fire situations.
The use of such demonstrations is supported, for instance, by NUREG-1764, “Guidance for the Review of Changes to Human Actions” and NUREG-0711 “Human Factors Engineering Program Review Model,” cited in NUREG-0800, Section 18.0 Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants. NUREG-1764 states that “* * * [a] walk-through of the human actions under realistic conditions should be performed * * * The scenario used should include any complicating factors that are expected to affect the crews['] ability to perform the human actions * * *” NUREG-0711 states that “* * * an integrated system design (
There are several important elements to the demonstration criterion. First, licensees may take credit for operator manual actions only after a successful demonstration. To continue taking credit for operator manual actions, licensees must complete demonstrations such that all operating crews successfully perform the coordinated sets of operator manual actions taken as a result of a fire in a specific fire area. Periodic demonstrations, at a frequency consistent with that established by the licensee in compliance with 10 CFR 50.120, provide valuable training and experience for licensee personnel and also serve to verify that plant configuration and conditions (access, egress, etc.) have not changed over time such that the operator manual actions can no longer be accomplished in accordance with the analysis performed pursuant to paragraph III.P.2(a). Should a licensee be unable to successfully complete a subsequent demonstration, the Commission expects prompt corrective action to retrain the operators, or to modify the operator manual actions, or modify the plant conditions so that the demonstration yields successful results.
Second, the demonstration verifies an action can be completed within the analyzed fire timeline. This can be done utilizing an established crew of operators to show in the demonstration that operator manual actions can be accomplished to achieve and maintain
Third, the demonstration must be completed by an established crew. An established crew is a group of operators that normally work as a team during any one shift. Conducting the demonstration with an established crew instead of a crew assembled just for the demonstration will provide a more valid basis for the fire timeline determination, as well as provide the established crew with the training necessary to work as a team.
Fourth, operator manual actions may not be credited until those actions have been shown in the demonstrations to be feasible by satisfying all the acceptance criteria. The demonstration should ensure that all relevant aspects of the criteria are met and that important characteristics of those criteria are included in the demonstration to the extent possible. For example, environmental conditions must be considered and should be simulated where possible. This may include, but is not limited to, such considerations as expected lighting levels, protective clothing, and noise levels. This is important because it validates the demonstration by conducting it under conditions that are as realistic as possible.
Fifth, prompt corrective actions are required if any demonstration determines that the operator manual action may not be accomplished consistent with the analysis. Prompt corrective actions should be implemented at the first available opportunity consistent with the guidelines of Generic Letter 91-18, Revision 1, Information to Licensees Regarding NRC Inspection Manual Section on Resolution of Degraded and Nonconforming Conditions.
As with training, the demonstration provides the crew with practical experience. All elements of the fire scenario, including the use of equipment and procedures, adequacy of staffing levels, and response to indications, should be integrated into the demonstration to develop this benchmark. In this way, any complexities, such as the number of required operator manual actions and their dependence upon one another, are evaluated and identified for appropriate consideration in the development of the time margin. Failure of an initial demonstration to show that the operator manual actions can be accomplished consistent with the analysis indicates that the manual actions are not feasible. In such cases, the licensee could modify the actions (
As part of the development of this proposed rule, the NRC considered stakeholder comments that provided additional insights. A number of stakeholder comments were made in response to the draft acceptance criteria intended for use in the interim enforcement discretion policy published for comment (68 FR 66501 and 69730) and in a subsequent public meeting on June 23, 2004. The comments on these criteria involved the demonstration using the same personnel/crews who are required to perform the manual actions during the fire; the application of plant procedures; the application of a fire detection and suppression system; and the application of operator manual actions criteria in all provisions of paragraph III.G.
A number of public comments indicated that the requirement for the demonstration to use “the same personnel/crews who will be required to perform the actions during the fire” is unnecessarily restrictive. The Commission agrees that requiring all crews to demonstrate performance under all conditions is unnecessarily restrictive. The intent is to provide reasonable assurance that whatever crew is on duty at the time of a fire can reliably perform the required actions, allowing for variabilities and uncertainties. The Commission considers it sufficient that an established crew (
A number of public comments suggested that the phrase “procedural guidance” be replaced by “guidance” (
There appeared to be some confusion on the part of a few commenters regarding where fire detection and automatic suppression would be required in conjunction with the addition of the option for operator manual actions in complying with paragraph III.G.2. Some thought they would be required in the areas where the operator manual actions would occur. The proposed requirement for fire detectors and an automatic fire suppression system applies only to the area where the fire occurs, not to the
A few commenters questioned whether the requirement for fire detection and automatic suppression installed in the area where the fire occurs should accompany the proposed compliance option for operator manual actions, and why this could not be left to the discretion of the licensees and review by the NRC, depending on the specific conditions to be encountered in that fire area. As discussed in the staff's proposed Appendix R, dated May 29, 1980, protective features shall be provided for fire areas that contain cables or equipment of redundant systems important to achieving and maintaining safe shutdown conditions to ensure that at least one means of achieving said conditions survives postulated fires. The protective features may consist of a combination of automatic and manual fire suppression capability, fire propagation retardants, physical separation, partial fire barriers, or alternative shutdown capability independent of the room. The proposed operator manual action option in conjunction with fire detectors and an automatic fire suppression system is consistent with the requirement of protective features and maintains a similar defense-in-depth concept as with a 1-hr passive fire barrier or a 20-ft separation with no intervening combustibles.
The paragraph III.G.2 compliance option of a 3-hr passive fire barrier requires no fire detection or automatic suppression to be installed in the area where the fire occurs. To consider the option for operator manual actions as providing reasonable assurance at a level comparable to this option, one must be convinced that the implementation of operator manual actions by itself provides a sufficient level of defense-in-depth without the additional level of protection provided by fire detectors and an automatic fire suppression system. The reason that the 3-hr barrier was “exempted” from the additional need for fire detection and automatic suppression was the prevalent acknowledgment that a fire at a nuclear power plant lasting longer than three hours, without intervention, is highly unlikely, if not incredible. Therefore, unlike a 1-hr barrier or a 20-ft separation without intervening combustibles, this compliance option was considered to be sufficient without the additional level of defense-in-depth provided by the fire detection and automatic suppression. Experience in both the nuclear and non-nuclear industry clearly indicates that human reliability is not at a level approaching that provided by a 3-hr barrier as the sole level of defense-in-depth. Therefore, without substantial additional justification such as can be provided by using the risk-informed, performance-based option in the Fire Protection Regulation at 10 CFR 50.48(c), it is not reasonable to consider the implementation of operator manual actions without fire detection and automatic suppression as a sufficient compliance option to paragraph III.G.2.
A few commenters indicated that requiring fire detection and automatic suppression in conjunction with operator manual actions if creditable under III.G.2 “does not enhance the ability of the operator to perform a manual action in another area of the plant that is unaffected by the fire * * * [Furthermore], this new “requirement” is also more severe than Appendix R, Section III.G.3 because III.G.3 only requires a “fixed” suppression system, either manual or automatic, but does not require an “automatic” suppression system * * * ”
With regard to the first claim, requiring fire detectors and an automatic fire suppression system in the fire area under consideration would enhance the ability of the operator to achieve and maintain safe shutdown from an unaffected area. The activation of detection and automatic suppression as indicated in the staff's statements of consideration for Appendix R to 10 CFR part 50 (as amended on December 1, 1980; 45 FR 79409) would ensure prompt and effective application of suppressant to a fire that could endanger safe shutdown capability. As a result, the time it takes a fire to adversely affect the licensee's ability to achieve and maintain a safe reactor shutdown may be extended, thereby enhancing the licensee's ability to perform feasible and reliable operator manual actions.
While a proposed requirement of automatic suppression for operator manual actions under paragraph III.G.2 may appear to be more severe than that of fixed suppression under paragraph III.G.3, the Commission believes that this difference is minor in practicality. Part 50, Paragraph 48(a)(1), Fire Protection, of 10 CFR states that “each operating nuclear power plant must have a fire protection plan that satisfies Criterion 3 of Appendix A to this part.” Appendix A, Criterion 3, Fire Protection, states that “Fire detection and fighting systems of appropriate capacity and capability shall be provided and designed to minimize the adverse effects of fires on structures, systems, and components important to safety.” If a non-water, fixed suppression system (
Finally, in both paragraphs III.G.2 and III.G.3, the requirement for fire detection and suppression (automatic or fixed) provides a degree of “defense-in-depth” to the passive fire protection features already in place (except in the case of the 3-hr fire barrier, where this is deemed sufficient without detection or suppression). Defense-in-depth is a recognized cornerstone in NRC policy to protect the public health and safety. Therefore, maintaining defense-in-depth is recognized as providing safety benefit in and of itself.
When the NRC proposed the original “Fire Protection Program for Nuclear Power Plants Operating Prior to January 1, 1979,” on May 29, 1980 (45 FR 36082), it specified that “the following minimum fire protective features shall be provided: (a) An early warning detection system; (b) manual fire suppression capability; and (c) fixed fire suppression systems and alternative shutdown capability as shown on Table 1.” In Table 1, the need for fixed fire suppression systems, automatic or manual, was based on four factors: (1) Does the fire/water disable normal shutdown capability; (2) is shutdown
In developing Appendix R, section III.G, the NRC originally considered fire detection and automatic suppression, if not as the primary level of defense-in-depth, at least as an equal level of defense-in-depth in conjunction with fire-retardant coatings, and subsequently their successors, fire barriers and/or physical separation, as stated in the “Statements of Consideration, 10 CFR part 50, Fire Protection Program for Operating Nuclear Power Plants,” (November 19, 1980, 45 FR 76602).
“* * * [T]he NRC staff has indicated to the Commission that there are requirements * * * in which the protection afforded by Appendix R over and above that previously accepted, may be desirable. The Commission has decided that these requirements should be retroactively applied to all facilities * * * to take fully into account the increased knowledge and experience developed on fire protection matters over the last several years. The first of these [requirements] * * * is related to fire protection features for ensuring that systems and associated circuits used to achieve and maintain a safe shutdown are free from fire damage. Appendix A to BTP CMEB 9.5-1 permits a combination of fire-retardant coatings and fire detection and suppression systems without specifying a physical separation distance to protect redundant systems, and such arrangements were accepted in some early fire protection reviews. As a result of some separate effects tests, the staff changed its position on this configuration, and subsequent plans have been required to provide additional protection in the form of fire barriers or substantial physical separation for safe shutdown systems. No credit for such coatings as fire barriers is allowed by Section III.G of Appendix R.”
The NRC originally characterized fire-retardant coatings, and subsequently their successors, fire barriers and/or physical separation, as “additional,” implying that detection and suppression were intended to be primary. The requirement that detection and suppression (automatic) be included with Appendix R, paragraph III.G.2, operator manual actions is not only consistent with the corresponding options currently there, but also is consistent with NRC's original intent in developing Appendix R, section III.G.
The risk-informed, performance-based option in 10 CFR 50.48(c) is available to those licensees who wish to demonstrate that operator manual actions in particular situations provide a reasonable assurance that the public health and safety can be maintained without fire detection or automatic suppression. Although the exemption process is available for cases that can be justified under § 50.12, the Commission considers the use of the option proposed by this rulemaking or the risk-informed, performance-based option currently provided in 10 CFR 50.48(c) more desirable in order to minimize the need for future exemption requests for addressing operator manual actions.
After considering the technical implications and historical background of the proposed criteria as discussed above, the Commission has tentatively decided that the proposed operator manual actions rulemaking should require fire detectors and an automatic fire suppression system in the fire area to permit operator manual actions as a compliance option under paragraph III.G.2, provided the acceptance criteria delineated in a new paragraph III.P are satisfied. The basis for the requirement is discussed above. However, because of the stakeholder interest in this subject, the Commission is asking for specific feedback and opinions from stakeholders on requiring an automatic versus fixed fire suppression system in the fire area.
The Commission asks the following specific question:
Under the proposed option of using operator manual actions under III.G.2.c-1, when redundant trains are located in the same fire area, should the requirement for a suppression system in the fire area be automatic or fixed? An automatic suppression system is required in III.G.2(b) and (c). However, a fixed system is specified in III.G.3. Provide the rationale for why requiring fixed or automatic suppression would provide the appropriate level of protection in the proposed paragraph III.G.2(C-1).
The proposed operator manual actions rulemaking would modify requirements in paragraph III.G.2 to permit operator manual actions as a compliance option under this paragraph, provided the acceptance criteria delineated in a new paragraph III.P are satisfied. The proposed rule language would not apply to paragraphs III.G.1 or III.G.3, although the term “operator manual actions” may be construed as applicable to the same types of actions taken under these paragraphs. This issue has been raised by stakeholders during discussions conducted thus far, and therefore, the Commission is providing background information about this subject and a specific request for comment.
Appendix R to 10 CFR 50, section III.G.1 requires fire protection features capable of limiting fire damage so that one train of systems necessary to achieve and maintain hot shutdown conditions from either the control room or emergency control station(s)
Where redundant trains of systems necessary to achieve and maintain hot shutdown conditions are located in the
Where the protection of systems required to function properly for hot shutdown does not satisfy the requirement of paragraph III.G.2, or where redundant trains of systems required for hot shutdown may be subject to damage as a result of fire suppression activities or the inadvertent actuation of fire suppression systems, paragraph III.G.3 requires that an alternative or dedicated shutdown capability must be provided and must be independent of cables, systems or components in the area, room, or zone under consideration. In addition, paragraph III.G.3 further requires that
Feedback from the stakeholders on the
Another commenter stated that “This [sic—These] proposed interim acceptance criteria should state NRC's current expectations for feasibility of all manual actions. This maintains the maximum consistency with existing NRC guidance, and avoids the creation of a separate set of standards only applicable to “III.G.2” manual actions. Establishing criteria specifically applicable to “III.G.2 manual actions” will lead to unnecessary confusion about whether an action is a “III.G.1.a action” or a “III.G.2 action”.
In addition to the written public comments, the NRC received comments during a June 23, 2004, Category 3 public meeting in Rockville, Maryland discussing application of operator manual actions criteria to paragraphs III.G.1 and III.G.3. During this meeting the industry stated that it will conduct a survey of licensees shortly following issuance of the proposed rule to determine their position and consensus on the application of operator manual action criteria to 10 CFR part 50, Appendix R, paragraphs III.G.1 and III.G.3.
There were two issues identified by stakeholders relative to operator manual actions. The first was specific operator manual actions within individual paragraphs III.G.1, III.G.2, and III.G.3. The second was the applicability of the proposed operator manual actions acceptance criteria to all provisions of paragraph III.G.
Operator manual actions, as currently outlined in the proposed rule, would be used as an additional option to satisfy paragraph III.G.2 requirements. However, based on stakeholder comments, the NRC is asking for feedback from stakeholders on the advantages and disadvantages of also applying operator manual action acceptance criteria to paragraphs III.G.1 and III.G.3.
The NRC believes that there are technical and backfit considerations associated with expanding the applicability of operator manual action acceptance criteria to paragraphs III.G.1 and III.G.3.
A III.G.3—compliant Fire Area contains redundant trains of shutdown equipment or cables and one train has not been ensured to remain free of fire damage (per III.G.2 criteria), or redundant trains are vulnerable to damage as a result of fire suppression activities or the inadvertent actuation of fire suppression systems. As noted, paragraph III.L contains specific provisions concerning this alternate or dedicated shutdown capability. For instance, it contains criteria such as III.L.3 “Procedures shall be in effect * * *,” and III.L.4 “The number of operating shift personnel * * * required to operate such equipment shall be on site at all times.” However, they are not as comprehensive as the proposed acceptance criteria in paragraph III.P. The NRC believes that if it applied the proposed acceptance criteria in paragraph III.P to paragraph III.G.3, it may be necessary to modify paragraph III.L.
In addition, the NRC believes that operator manual actions previously approved for paragraph III.G.3 would need to be revisited in order to ensure that they satisfy the acceptance criteria as proposed for paragraph III.G.2.
Applying the same new acceptance criteria to all fire protection manual actions in paragraph III.G may require a generic backfit analysis since the current rule allows the use of manual actions at emergency control stations in III.G.1 with no codified acceptance criteria and in III.G.3 with less specific acceptance criteria. Section 50.109(a)(3) provides the standard for a backfit analysis that must show “a substantial increase in the overall protection * * * and that the direct and indirect costs of implementation * * * are justified in view of this increased protection.” The extent of licensees' usage of manual actions is highly plant specific and the associated costs and benefits of backfitting are therefore difficult to quantify. Furthermore, applying the acceptance criteria to all paragraph III.G manual actions could invalidate the use of some existing manual actions. The subsequent hardware/fire barrier/program modifications that would then be needed could be very expensive. Thus, value-impact analyses in many cases would probably show that backfitting is not cost-beneficial.
Alternatively, if a generic analysis cannot justify the backfit under 10 CFR 50.109(a)(3), the NRC may be able to justify the backfitting as necessary for “adequate protection” under 10 CFR 50.109(a)(4)(ii). Recent inspection experience has not shown major issues with respect to the use of operator manual actions, thus, not providing significant support to justify that the backfit is needed for adequate protection. Further, NRC inspections of potentially risk-significant (“greater than green”) findings on such manual actions are already handled by the Reactor Oversight Process (ROP) corrective action program or are evaluated as plant-specific backfits, as applicable.
Regardless of the applicable section under 10 CFR 50.109, a backfit may ultimately enhance safety, as a result of a consistent set of rules. However, backfitting the operator manual actions' acceptance criteria to all plants may cause plants with existing operator manual actions previously approved under a different set of criteria to resubmit exemption requests for staff review and approval.
Applying new acceptance criteria on a forward-fit basis for operator manual actions under III.G.3 might be a means of addressing this backfit concern. Under this approach, application of the new acceptance criteria to III.G.3 would apply to operator manual actions that resulted from
Applying the new acceptance criteria to all operator manual actions in III.G.2 and III.G.3, would make fire protection implementation and inspections more consistent, reliable and predictable. However, the NRC also notes that the existing requirements vary among plants for several reasons; for example, post-1979 plants were not specifically licensed to Appendix R, and thus these provisions would not apply to them absent other regulatory action, which would tend to offset the possible consistency gain.
After considering a number of technical and regulatory implications, the Commission has tentatively decided to limit the applicability of this proposed rule on operator manual actions to paragraph III.G.2. However, because of the stakeholder interest in this subject, the Commission is also asking for specific feedback and opinions from stakeholders on applying operator manual actions acceptance criteria to paragraphs III.G.1 and III.G.3. Depending on the comments received, the Commission may extend application of the criteria to paragraphs III.G.1 and III.G.3.
The Commission asks the following specific question:
Should the operator manual action acceptance criteria developed for III.G.2 also be applied to operator manual actions for III.G.1 and III.G.3? Are there advantages or disadvantages not noted by the Commission that should be considered? Please provide a discussion outlining the basis for your response taking into account the considerations outlined in the supplementary information section of this document.
In SECY-03-0100, “Rulemaking Plan on Post-Fire Operator Manual Actions,” dated June 17, 2003, the NRC staff recommended development of an interim enforcement policy relying on preliminary acceptance criteria for manual actions. The staff proposed this strategy based on a belief that interim acceptance criteria could be developed that would be consistent with the manual actions acceptance criteria in the final rule. The Commission had previously approved a similar enforcement discretion policy related to a fitness-for-duty proposed rulemaking. In an SRM dated September 12, 2003, the Commission approved the staff's recommendation.
In March 1998, the NRC issued EGM 98-02, “Enforcement Guidance Memorandum—Disposition of Violations of Appendix R, Sections III.G and III.L Regarding Circuit Failures,” that provides enforcement guidance for issues related to fire-induced circuit failures, which encompasses the vast majority of manual actions as compensatory measures to satisfy the regulatory requirements. This EGM was developed based on an apparent widespread misunderstanding of the requirements on the part of licensees and remains in effect until December 31, 2005. The EGM provides guidance for disposition of noncompliances involving fire-induced circuit failures, which could prevent operation or cause maloperation of equipment needed to achieve and maintain post-fire safe shutdown. Among the enforcement conditions, discretion will be given for cases where licensees do not dispute that a violation of regulatory requirements has occurred with respect to a nonconformance and that licensees take prompt compensatory actions and also take corrective action within a reasonable time. The expectations of this EGM have been incorporated into the current NRC Enforcement Manual. In addition, the Office of Nuclear Reactor Regulation issued a revised Inspection Procedure (IP) 71111.05 in March 2003 incorporating interim operator manual actions acceptance criteria. The inspection procedure provides guidance to assess and ensure that plant specific operator manual actions meet the interim acceptance criteria and that corrective actions taken by the plants will achieve and maintain safe shutdown condition.
On November 26, 2003 (68 FR 66501), the NRC staff published a
The current applications of EGM 98-02 and IP 71111.05 are effective to ensure and maintain the overall plant safety by licensees through the use of adequate and appropriate compensatory measures in the form of operator manual actions implemented under the licensee's Fire Protection Program. Manual actions that fail to meet the criteria in the inspection procedure are not considered to be feasible or to be adequate compensatory measures. Such manual actions will result in the non-compliance being entered into the enforcement process. The new interim enforcement policy for the post-fire operator manual actions would utilize a disputed set of acceptance criteria and trigger additional reviews (by licensees and inspectors) of past findings, with the prospect of a third review being necessary upon issuance of the final rule. Issuing such an enforcement discretion policy at this time could also have the unintended consequence of preempting the rulemaking process without a clear safety benefit.
Based on the above, the Commission believes that the continued use of the current enforcement discretion policy of EGM 98-02 and the guidance in IP 71111.05 is sufficient in the interim and that a revision of the existing policy or development of additional policy to include specific operator manual actions acceptance criteria is not warranted.
Proposed paragraph III.P.2.a requires that an analysis be performed for operator manual actions and that the feasibility and reliability of these actions be demonstrated. The analysis must also address the fire timeline and identify all manual actions that must be completed; the equipment needed; the number of operators needed; the communication equipment needed; and the time available, including time margin, for the operators to perform the actions before unsafe plant conditions occur.
Proposed paragraph III.P.2.b contains requirements for plant procedures that must include each operator manual action required to achieve and maintain hot shutdown. It also includes operator training requirements for those procedures.
Proposed paragraph III.P.2.c contains requirements that systems and equipment needed to accomplish operator manual actions are available and equipment is readily accessible consistent with the analysis required by subparagraph III.P.2(a). It also includes a requirement that the number of operating shift personnel required to perform the operator manual actions must be on site at all times.
Proposed paragraph III.P.2.d contains requirements for periodic demonstrations of the operator manual actions and corrective actions.
A June 1, 1988, presidential memorandum entitled “Plain Language in Government Writing” directed that the Government's writing be in plain language. This memorandum was published on June 10, 1998 (63 FRN 31883). In compliance with this directive, editorial changes have been made in the proposed revision to improve the organization and readability of the existing language of the paragraph being revised. These types of changes are not discussed further in this document. The NRC requests comments on the proposed rule specifically with respect to the clarity and readability of the language used. Comments should be sent to the address listed under the
The National Technology Advancement and Transfer Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies, unless the use of such standards is inconsistent with applicable law or otherwise impractical. The NRC is aware of the guidance on operator manual actions contained in ANSI/ANS Standard 58.8 (1994), “Time Response Design Criteria for Safety-Related Operator Actions.” This standard contains criteria that establish time requirements for use in the design of safety-related systems for nuclear power plants. The objective of the criteria is to determine whether sufficient time exists for operators to perform the required operator manual actions to operate safety-related systems or whether automatic actuation is required. The scope of the standard is “limited to safety-related operator actions associated with design basis events (DBEs) that result in a reactor trip and is required to be analyzed in safety analysis reports (SARs).” The NRC considers this industry consensus standard relevant to the proposed rulemaking, but not acceptable as a replacement for it. Operator manual actions performed for the purpose of fire protection are beyond the intended application of this standard. However, the principles and methods contained in the standard may be adaptable to the proposed rulemaking and have been considered as part of the NRC's effort to develop generic operator manual actions acceptance criteria.
The NRC is further aware of draft guidance for review of license amendment requests that contain risk-important human actions. The NRC staff issued NUREG-1764, “Guidance for the Review of Changes to Human Actions,” as a draft report for public comment with the comment period closing on March 31, 2003. This NUREG proposes a risk-informed methodology for the review of the human performance aspects of licensees' proposed changes to plant systems and operations in license amendment requests. In addition to using risk insights to help the staff determine the level of regulatory review expended on licensees' submittals relying on human actions, the NUREG provides deterministic review criteria for evaluating the acceptability of human actions proposed by licensees.
The NRC notes that a separate rulemaking for 10 CFR 50.48(c), “National Fire Protection Association Standard NFPA 805,” has recently been completed which permits nuclear power plant licensees to develop a risk-informed, performance-based fire protection program consistent with voluntary consensus standard NFPA 805, “Performance-Based Standard for Fire Protection for Light Water Reactor Electric Generating Plants.” Appendix B of NFPA 805 specifies a method for assessing the feasibility of operator manual actions. The NRC believes that licensees who choose to implement the NFPA 805 approach could alternatively, with appropriate analysis and documentation, use it to justify the acceptability of certain operator manual actions in their fire protection programs.
In preparing the proposed rule, the NRC considered the applicability of the risk-informed approach and the deterministic review criteria presented in NUREG-1764 and Appendix B of NFPA 805 to help refine the regulatory requirements and the implementation guidance. The NRC is not aware of any other consensus standard that could be adopted to provide guidance or criteria for the use of operator manual actions, but will consider using an alternative standard if one is identified during the rulemaking process.
The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment. Therefore, an environmental impact statement is not required. The basis for this determination is as follows:
This action would establish regulations that allow nuclear power plant licensees to use manual actions by plant operators as an alternative method to achieve hot shutdown conditions in the event of fires in certain plant areas, provided that the actions are evaluated against specified criteria and determined to be feasible and reliable, and that fire detectors and an automatic fire suppression system are provided in the fire area. This proposed action also provides conservative and thorough regulatory acceptance criteria for
The proposed action will not significantly increase the probability or consequences of an accident. No changes are being made in the types or quantities of radiological effluents that may be released off site, and there is no significant increase in public radiation exposure since there is no change to facility operations that could create a new or affect a previously analyzed accident. The staff believes there will be no net change in occupational radiation exposure. Any potential increase in exposure to personnel performing or demonstrating operator manual actions will likely be offset by a reduction of occupational radiation exposure since fewer personnel will be required to install or maintain fire barriers in or near radiologically controlled areas.
With regard to nonradiological impacts, no changes are being made to nonradiological plant effluents and there are no changes in activities that could adversely affect the environment. Therefore, there are no significant non-radiological impacts associated with the proposed action.
The primary alternative to this action is the no-action alternative. The no-action alternative would result in licensees proposing to use the risk-informed, performance-based alternative provided in 10 CFR 50.48(c) or submitting exemptions to authorize the use of acceptable operator manual actions. The NRC's approval of these actions would have the same environmental impacts as the proposed action.
The determination of this environmental assessment is that this action will have no significant offsite impact on the public. Comments on any aspect of the environmental assessment may be submitted to the NRC as indicated under the
The NRC has sent a copy of this proposed rule to all State Liaison Officers and requested their comments on the environmental assessment.
This proposed rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The U.S. Nuclear Regulatory Commission is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues:
1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?
2. Is the estimate of burden accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques?
A copy of the OMB clearance package may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and rule are available at the NRC worldwide Web site:
Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by April 6, 2005, to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
The Commission has prepared a draft regulatory analysis on this proposed regulation. The analysis examined the costs and benefits of Commission alternatives for updating the existing rule to accommodate technological advances.
The analysis examined two baselines. The Main baseline reflects the effects of the rule as of the date of publication, that is, full compliance with all existing regulations. The Industry Practices baseline reflects a more “real world” assessment of compliance.
The regulatory alternatives examined under each baseline were No Action, under which no regulatory changes would be undertaken; Regulatory Guidance, under which Section 50.48 and Appendix R would not be modified but regulatory guidance would be updated; and the Proposed Alternative, under which the proposal outlined above would be implemented.
The regulatory analysis showed that the proposed alternative was the most cost beneficial of the three alternatives. The benefit is the greatest under the Industry Practices baseline because fourteen reactors would take immediate advantage of the proposed rule with corresponding savings to industry.
Option 3, the Proposed Alternative, was determined to be the most preferable based on best professional
The results of the analysis are summarized in the following table.
The Commission requests public comment on the draft regulatory analysis. The regulatory analysis may be viewed and downloaded via the NRC rulemaking Web site at
As required by the Regulatory Flexibility Act, as amended, 5 U.S.C. 605(b), the Commission certifies that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect only licensees authorized to operate nuclear power reactors. These licensees do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Size Standards established by the Nuclear Regulatory Commission (10 CFR 2.810).
Section 50.109 (a)(1) defines backfitting as “the modification of or addition to systems, structures, components, or design of a facility * * * any of which may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previously applicable staff position.” The requirements in Appendix R are only applicable to licensees who received operating licenses before January 1, 1979. To resolve an existing regulatory compliance issue for these licensees under paragraph III.G.2 of Appendix R, the proposed rule represents a voluntary alternative to the current requirements. The proposed rule would allow the use of operator manual actions for achieving and maintaining hot shutdown during a fire in an area where redundant shutdown trains are located as an additional method beyond the three alternatives presently provided. Licensees who currently have approved operator manual actions will not be required to perform any additional actions (such as analysis or documentation). Licensees who employ operator manual actions but have not received NRC approval are in violation of paragraph III.G.2 of Appendix R. There is no backfitting as defined in 10 CFR 50.109(a)(1) because licensees may choose to continue to meet paragraph III.G.2 through other provisions.
Post-January 1, 1979 licensees who use operator manual actions without NRC approval may or may not be in compliance with applicable fire protection requirements (GDC-3, § 50.48(a), applicable license conditions, or current fire protection programs). Compliance for plants licensed after January 1, 1979, depends on the specific licensing commitments, the change control process, and how the change was justified and analyzed to demonstrate that the operator manual actions are feasible and reliable and do not adversely affect the ability to achieve or maintain safe shutdown. This rule is not applicable to these licensees as they are not required to meet Appendix R.
Based on the above discussion, the NRC has concluded that the proposed rule would not constitute a backfit as defined in 10 CFR 50.109(a)(1).
Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Backfitting, Reporting and record keeping requirements.
For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR part 50.
1. The authority citation for part 50 continues to read as follows:
Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841).
Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332).
Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).
Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235).
Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332).
Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844).
Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
Sections 50.80—50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234).
Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
2. In Appendix R to Part 50, Section III.G.2.c. is revised and a new Section III.G.2.c-1 and Section III.P. are added to read as follows:
G. * * *
2. * * *
c. Enclosure of cable and equipment and associated non-safety circuits of one redundant train in a fire barrier having a 1-hour rating. In addition, fire detectors and an automatic fire suppression system shall be installed in the fire areas; or
c-1. Operator manual actions that satisfy the acceptance criteria in paragraph III.P. In addition, fire detectors and an automatic fire suppression system shall be installed in the fire area.
P. 1. For purposes of this section, operator manual actions means the integrated set of actions needed to ensure that a redundant train of systems necessary to achieve and maintain hot shutdown conditions located within the same area outside the primary containment is free of fire damage.
2. A licensee relying on operator manual actions must meet all of the following requirements:
(a)
(1) The analysis must contain a postulated fire timeline showing that there is sufficient time to travel to action locations and perform actions required to achieve and maintain the plant in a hot shutdown condition under the environmental conditions expected to be encountered without jeopardizing the health and safety of the operator performing the manual action. The fire timeline shall extend from the time of initial fire detection until the time when the ability to achieve and maintain hot shutdown is reached, and shall include a time margin that reasonably accounts for all important variables, including (i) differences between the analyzed and actual conditions, and (ii) human performance uncertainties that may be encountered.
(2) The analysis must address the functionality of equipment or cables that could be adversely affected by the fire or its effects but still used to achieve and maintain hot shutdown.
(3) The analysis must identify all equipment required to accomplish the operator manual actions within the postulated timeline, including (but not limited to) (i) all indications necessary to identify the need for the operator manual actions, enable their performance and verify their successful accomplishment, and (ii) any necessary communications, portable, and life support equipment.
(b)
(c)
(d)
The licensee may not rely upon any operator manual action until it has been demonstrated to be consistent with the analysis. The licensee shall take prompt corrective action if any subsequent periodic demonstration indicates that the operator manual actions can no longer be accomplished consistent with the analysis.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This notice proposes to create a Class E surface area at Monett, MO. It also proposes to modify the Class E5 airspace at Monett, MO.
Comments for inclusion in the Rules Docket must be received on or before April 19, 2005.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2005-20065/Airspace Docket No. 05-ACE-7, at the beginning of your comments. You may also submit comments on the Internet at
Brenda Mumper, Air Traffic Division, Airspace Branch, ACE-520A, DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2524.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-20065/Airspace Docket No. 05-ACE-7.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This notice proposes to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace designated as a surface area for an airport at Monett, MO. Controlled airspace extending upward from the surface of the earth is needed to contain aircraft executing instrument approach procedures to Monett Municipal Airport. Weather observations would be provided by an Automatic Weather Observing/Reporting System (AWOS) and communications would be direct with Springfield Terminal Radar Approach Control Facility.
This notice also proposes to revise the Class E airspace area extending upward from 700 feet above the surface at Monett, MO. An examination of this Class E airspace area for Monett, MO revealed noncompliance with FAA directives. This proposal would correct identified discrepancies by increasing the area from a 6.5-mile to a 7.5-mile radius of Monett Municipal Airport, eliminating the extension to the airspace area, correcting errors in the Monett Municipal Airport airport reference point, defining airspace of appropriate dimensions to protect aircraft departing and executing instrument approach procedures to Monett Municipal Airport and brining the airspace area into compliance with FAA directives. Both areas would be depicted on appropriate aeronautical charts.
Class E airspace areas designated as surface areas are published in Paragraph 6002 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of the same Order. The Class E airspace designations listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only effect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposed rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority since it would contain aircraft executing instrument approach procedures to Monett Municipal Airport.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, is amended as follows:
Within a 4.5-mile radius of Monett Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of Monett Municipal Airport.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the section 111(d)/129 State Plan submitted by Tennessee for the Pollution Control District (PCD) of the Metro Public Health Department for Nashville/Davidson County on May 28, 2002, for implementing and enforcing the Emissions Guidelines applicable to existing Commercial and Industrial Solid Waste Incinerators. The Plan was submitted to satisfy Federal Clean Air Act requirements. In the final rules section of this
Comments must be received in writing by April 6, 2005.
Comments may be mailed to Joydeb Majumder, EPA Region 4, Air Toxics and Monitoring Branch, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please follow the detailed instructions described in the direct final rule,
Joydeb Majumder at (404) 562-9121 or Melissa Krenzel at (404) 562-9196.
For additional information see the direct final rule which is published in the Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
Under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), EPA is proposing revisions to the reporting requirements for the dioxin and dioxin-like compounds category. Toxic equivalents (TEQs) are a weighted quantity measure based on the toxicity of each member of the dioxin and dioxin-like compounds category relative to the most toxic members of the category,
Comments, identified by the Docket ID No. TRI-2002-0001, must be received by EPA on or before May 6, 2005.
Submit your comments, identified by Docket ID No. TRI-2002-0001, by one of the following methods:
•
•
•
•
•
Daniel R. Bushman, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-566-0743; fax number: 202-566-0741; e-mail:
You may be potentially affected by this proposed rule if you manufacture, process, or otherwise use dioxin and dioxin-like compounds. Potentially affected categories and entities may include, but are not limited to:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372 subpart B of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address only, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: OEI Document Control Officer, Mail Code: 2822T, U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). The EPA will disclose information claimed as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
These actions are proposed under sections 313(g), 313(h), and 328 of EPCRA, 42 U.S.C. 11023(g), 11023(h) and 11048, and section 6607 of the Pollution Prevention Act (PPA), 42 U.S.C. 13106.
Section 313 of EPCRA requires certain facilities manufacturing, processing, or otherwise using a listed toxic chemical in amounts above reporting threshold levels, to report their environmental releases of each chemical annually. 42 U.S.C. 11023(a). These reports must be filed by July 1 of each year for the previous calendar year. Facilities also must report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of PPA.
Section 313(g) describes the information that must be submitted annually to EPA, pursuant to EPCRA section 313. Specifically, section 313(g) requires submission of the following information for each listed toxic chemical known to be present at the facility: “(i) Whether the toxic chemical at the facility is manufactured, processed, or otherwise used, and the general category or categories of use of the chemical; (ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year; (iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream; and (iv) The annual quantity of the toxic chemical entering each environmental medium.” 42 U.S.C. 11023(g)(1).
Section 313(h) provides that the data collected under EPCRA section 313 are intended: to inform persons about the releases of toxic chemicals to the environment; to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appropriate regulations, guidelines, and standards, and for other similar purposes. 42 U.S.C. 11023(h). EPA has long recognized that subsection (h) of section 313 describes the purposes of EPCRA section 313, and has frequently
Section 6607(a) of the PPA requires all facilities that report under EPCRA section 313 to also submit “a toxic chemical source reduction and recycling report for the preceding calendar year.” 42 U.S.C. 13106(a) Specifically, section 6607 (b) requires submission of the following information for each listed toxic chemical: (1) The quantity of the chemical entering any waste stream (or otherwise released into the environment) prior to recycling, treatment, or disposal during the calendar year, and the percentage change from the previous year, excluding any amount reported under paragraph 7; (2) the amount of the chemical recycled (at the facility or elsewhere) during the calendar year, the percentage change from the previous year, and the process of recycling used; (3) the source reduction practices used during the year; (4) the amount expected to be reported under paragraphs (1) and (2) for the 2 succeeding calendar years; (5) a ratio of production in the reporting year to production in the previous year; (6) the techniques used to identify source reduction opportunities; (7) the amount of any toxic chemical released into the environment by a catastrophic event, remedial action or other one-time event, and which is not associated with production processes during the reporting year; and (8) the amount of the chemical treated (at the facility or elsewhere) during the calendar year and the percentage change from the previous year.
Congress granted EPA broad rulemaking authority. EPCRA section 328 provides that the “Administrator may prescribe such regulations as may be necessary to carry out this chapter” (28 U.S.C. 11048).
TEQs are a weighted quantity measure based on the toxicity of each member of the dioxin and dioxin-like compounds category relative to the most toxic members of the category,
In response to a petition, EPA added the dioxin and dioxin-like compounds category to the EPCRA section 313 list of toxic chemicals in October of 1999 (64 FR 58666 and 58695-58704 (October 29, 1999)). That rulemaking required reporting in grams of the total dioxin releases. The rationale for selection of that reporting format was articulated in the
A significant factor in the belief that TEQ reporting could add value was that the TEFs upon which the TEQ computations are based are an internationally agreed upon standard for characterizing the relative toxicity of dioxin and dioxin-like compounds and were a significant factor in specifying the listing of some of the dioxin congeners (64 FR 58696). Therefore, EPA added a section to the Toxics Release Inventory (TRI) reporting Form R that required the reporting facility to provide a single distribution of the dioxin and dioxin-like compounds for one of the total quantities that the facility is reporting to enable interested members of the public to compute a general (not waste stream specific) TEQ for the facility's releases. Reporting of complete distributions for all waste streams was not required primarily due to a concern about reporting burden.
Under the current rule, if a facility has information on the distribution of the dioxin and dioxin-like compounds, it is required to report either the distribution that best represents the distribution of the total quantity of dioxin and dioxin-like compounds released to all media from the facility; or its one best media-specific distribution. As with all other reporting under EPCRA section 313, this information is only required if it is available from the data used to calculate thresholds, releases, and other waste management quantities, or if the facility has information that can be used to make a reasonable estimate. No additional testing or monitoring is required.
Since promulgation of the final rule, EPA has continued to receive feedback from the regulated community on the question of how to report under EPCRA section 313 for dioxin and dioxin-like compounds. For example, certain industry groups have recently requested that EPA require TEQ reporting for the dioxin and dioxin-like compounds category on an individual waste stream basis in addition to the current requirement to report total grams for the category. These groups believe the addition of information on TEQs for individual waste streams will enhance the value of dioxin release information without detracting from that already being provided. In addition, several industry trade associations including the American Chemistry Council, American Forest & Paper Association, American Portland Cement Alliance, Edison Electric Institute, and The Aluminum Association, have written to the Office of Management and Budget in support of the addition of TEQ reporting to the current EPCRA section 313 reporting requirements (Ref. 1). As was recognized at the time of the 1999 rulemaking, neither total mass nor TEQ reporting “* * * provide all of the data that the commenters would like to have reported and that being able to determine TEQs would provide additional useful information.” (64 FR 58702). Having so agreed, however, the Agency continues to have concerns about the burden which could be associated with waste stream specific reporting of dioxin releases and TEQ. In this proposed rule, EPA is soliciting comment on this burden for reporters if they were required to provide waste stream specific information on individual dioxins and dioxin-like compounds. The Agency is also seeking comment through this proposed rule on three potential approaches for implementing reporting changes which would make it feasible for the public to assess individual releases on both a gram and TEQ basis.
The Agency sees merit in this dual reporting for all of the reasons articulated in the 1999 rulemaking. Not only will the addition of TEQ reporting allow further understanding of the releases and waste management quantities currently reported to the TRI for dioxin and dioxin-like compounds, it will also make it easier to compare TRI data on dioxin and dioxin-like
There are three ways to accomplish the addition of TEQ information on individual waste streams to that data which is currently available under the TRI. In addition to the current reporting of the total grams of the dioxin and dioxin-like compounds category, one could also collect either TEQ data for the dioxin and dioxin-like compounds category as a whole, the total grams for the individual members of the dioxin and dioxin-like compounds category, or both, for each individual waste stream for which such data are available. Individual grams of each member of the category, combined with published TEFs, can be used either by the reporting facility or by EPA to calculate and report TEQ data for individual waste streams.
EPA is requesting comment on three options for collecting this information and providing it to the public. Under option 1, EPA would require that, in addition to reporting the total grams of the dioxin and dioxin-like compounds category, if a facility has information on the distribution of the quantities of the individual members of the dioxin and dioxin-like compounds, the facility must report the TEQ calculated from that distribution for the category. However, Option 1 is not an EPA preferred option because it does not address a major concern with the collection of TEQ data in the absence of individual grams data for each member of the category. The concern is that if TEFs change, as they have in the past, EPA will not be able to track TEQs consistently over time, because it will not have the underlying data necessary to recalculate prior year TEQ data using the new TEF values, or to otherwise compare TEQ data generated using different TEF values. The retention of outdated TEQ data in the publicly available TRI database could also cause additional confusion for users of the data.
Discussed below are the two preferred options (options 2 and 3) that EPA is considering for collecting this information. While EPA is considering all three options and specifically requests comments on which option would best meet the goal of providing useful TEQ data while limiting the additional reporting burden, EPA currently favors option 3 below, because it has the lowest burden and provides the most reliable information. (The regulatory text proposed in this notice, however, is based on option 2, because it incorporates both of the other two options, by requiring facilities to report individual grams data for each member of the category and to calculate and report TEQ values.)
Under this option, EPA is proposing that, in addition to reporting the total grams of the dioxin and dioxin-like compounds category, if a facility has information on the distribution of the quantities of the individual members of the dioxin and dioxin-like compounds, the facility must report (1) the total grams for each member of the category; and (2) the TEQ calculated from that distribution for the category. The TEQ data would be calculated using the most recent TEF values (see Unit V.). As with all other reporting under EPCRA section 313, facilities should use readily available data collected pursuant to other provisions of law to calculate this information, or where such data are not readily available, must make reasonable estimates of the amounts involved. See 42 U.S.C. 11042 (g)(2). Facilities are not required to conduct any testing or monitoring in order to submit this information. See 42 U.S.C. 11042 (g)(2). As EPA has previously stated, when reporting for the dioxin and dioxin-like compounds category, facilities should report their releases and other waste management quantities at a level of precision supported by the accuracy of the underlying data and the estimation techniques on which the estimate is based (64 FR 58734, October 29, 1999).
Under any of the three options presented in this notice, the additional distribution data and TEQ data would be reported for the data elements in sections 5 (Quantity of the Toxic Chemical Entering Each Environmental Medium Onsite), 6 (Transfers of the Toxic Chemical in Wastes to Off-Site Locations), and 8 (Source Reduction and Recycling Activities; limited to the current year only data) of the current Form R. EPA intends to create a new form, called the Form R-D, that facilities will use instead of the Form R to report for the dioxin and dioxin-like compounds category, regardless of whether they can provide any of the additional data described in this proposal. The new form would include all of the data currently collected on the existing Form R (except for the information described in Unit VI), and would provide for the collection of the additional data for each waste stream required by the final rule (
EPA considered providing a supplemental form for reporting the additional grams and TEQ data, but determined that having only one form for all facilities to report for dioxin and dioxin-like compounds would greatly reduce the confusion that would result if two separate forms were required to be filled out. EPA also intends to incorporate the new Form R-D into the EPA-provided TRI-Made Easy (TRI-ME) electronic reporting software and to automate the calculation of the TEQ data so that facilities that report the gram quantities for the individual members of the category and use EPA's electronic reporting software will not have to calculate the TEQ value. Automation of the TEQ calculation is expected to both improve data quality and reduce reporting burden.
This option is the same as option 2 except that the only additional data facilities would need to provide is the individual grams data for each member of the dioxin and dioxin-like compounds category; facilities would not have to calculate and report the TEQ data. Under this option, EPA would generate the corresponding TEQ data from the individual grams data reported by the facility and include that TEQ data in the TRI database along with all the grams data reported by the facility. The TEQ data would be presented along with the facility-reported data and EPA would include TEQ data in all of EPA's publications that contain TRI data on dioxin and dioxin-like compounds. EPA would also include a TEQ calculator in TRI-ME so that facilities would still be able to check the TEQ calculations.
EPA believes that there are several benefits to this option. First, under this option facilities would not have the burden of tracking TEFs and calculating the TEQ data from the grams data; instead, this burden would be assumed by the Agency. Second, EPA would not have to incorporate the TEF values into the regulations, and therefore would not need to go through rulemaking in order to adopt any internationally accepted revisions (see Unit. V.). Third, if EPA does all the TEQ calculations electronically there should be fewer errors and improved data quality, both because there would be fewer opportunities for computational errors, and because there would be less potential for confusion about which were the applicable TEFs as these values change over time. Finally, if EPA calculates the TEQ data rather than having facilities report the data, EPA can recalculate the TEQ data for all of the reporting years once new TEF values are available. If facilities report the TEQ data themselves, EPA is concerned about its legal authority to alter these data if TEF values later change. Even though EPA and other users of the data could recalculate the TEQ data based on the individual grams data reported by the facilities, EPA might have to retain the original TEQ data reported by the facilities in the publicly available TRI database and this could cause additional confusion.
Because of the benefits discussed above, EPA believes that this option may be preferable to option 2. However, under this option the TEQ data would not come directly from the reporting facilities and, although EPA has every intention of providing the TEQ data, there would be no requirement for EPA to continue to provide TEQ data in the future. EPA requests comment on both options.
EPA is also proposing to require that all Form R-D reports be filed electronically using EPA's TRI-ME electronic reporting software or other approved software. In order to capture the individual grams data for each member of the category the Form R-D will include many more data elements which will increase the possibility for errors when EPA has to transfer data to the TRI database from hard copy reports. EPA believes that it is very important that the additional data submitted on the Form R-D be accurately captured in the EPA database. Requiring all Form R-Ds to be submitted electronically will result in less preparation error and less processing errors than are associated with paper submissions. In addition, as EPA stated in a recent letter to TRI reporting facilities (see:
EPA does not believe that there will be a significant increase in burden associated with requiring that all Form R-Ds be filed electronically (see Unit VII.). For example, in reporting year 2002 only 123 of the 1,277 reports filed for dioxin and dioxin-like compounds were submitted in hard copy thus over 90% of facilities that reported for dioxin and dioxin-like compounds filed electronically. Of the 123 hard copy submissions that were filed, 79 were prepared using EPA's TRI-ME electronic reporting software but were nevertheless submitted in hard copy. However, EPA requests comments on its proposal to have all Form R-D reports submitted electronically and whether EPA should create a waiver system that would allow facilities to file in hard copy. For example, EPA's Risk Management Plan program allows the submission of hard copies using a specific paper form and a paper submission cover form that explains why the facility is not filing electronically (see:
EPA is proposing to use the TEF scheme developed by the World Health Organization (WHO) in 1998 (Ref. 2) which is the most recent internationally agreed upon TEF scheme. The TEF values for the members of the dioxin and dioxin-like compounds category under the WHO 1998 scheme are assigned as follows (presented in the order of Chemical Abstracts Service (CAS) Number, chemical name, and TEF value): 67562-39-4, 1,2,3,4,6,7,8-heptachlorodibenzofuran, 0.01; 55673-89-7, 1,2,3,4,7,8,9-heptachlorodibenzofuran, 0.01; 35822-46-9, 1,2,3,4,6,7,8-heptachlorodibenzo-p-dioxin, 0.01; 70648-26-9, 1,2,3,4,7,8-hexachlorodibenzofuran, 0.1; 57117-44-9, 1,2,3,6,7,8-hexachlorodibenzofuran, 0.1; 72918-21-9, 1,2,3,7,8,9-hexachlorodibenzofuran, 0.1; 60851-34-5, 2,3,4,6,7,8-hexachlorodibenzofuran, 0.1; 39227-28-6, 1,2,3,4,7,8-hexachlorodibenzo-p-dioxin, 0.1; 57653-85-7, 1,2,3,6,7,8-hexachlorodibenzo-p-dioxin, 0.1; 19408-74-3, 1,2,3,7,8,9-hexachlorodibenzo-p-dioxin, 0.1; 39001-02-0, 1,2,3,4,6,7,8,9-octachlorodibenzofuran, 0.0001; 3268-87-9, 1,2,3,4,6,7,8,9-octachlorodibenzo-p-dioxin, 0.0001; 57117-41-6, 1,2,3,7,8-pentachlorodibenzofuran, 0.05; 57117-31-4, 2,3,4,7,8-pentachlorodibenzofuran, 0.5; 40321-76-4, 1,2,3,7,8-pentachlorodibenzo-p-dioxin, 1.0; 51207-31-9, 2,3,7,8-tetrachlorodibenzofuran, 0.1; 1746-01-6, 2,3,7,8-tetrachlorodibenzo-p-dioxin, 1.0.
EPA recognizes that over time, it may need to update the TEFs to reflect revisions adopted by the scientific community. For example, the WHO has initiated a project to review the current human and mammalian TEFs. The project will, as a first step, aim to update the database summarizing all published studies on the relative potency of dioxin and dioxin-like compounds. In a second step, an expert consultation will be held in the summer of 2005 to evaluate the need to update the human and mammalian TEF values as published in 1998. More information on this effort is available at
One possible advantage of options that require facilities to calculate and report the TEQ values is that, by including the TEFs in the regulations themselves, they would ensure an open, transparent process (
Currently 40 CFR 372.85(b)(15)(ii) requires the reporting of a distribution of the chemicals included in the dioxin and dioxin-like compounds category. EPA requires the reporting of this distribution if the information is available from the data used to calculate thresholds, releases, and other waste management quantities for the dioxin and dioxin-like compounds category. However, since the new reporting form will provide for the reporting of the grams of the individual members of the category there would be no need to continue to collect the distribution data currently collected under section 1.4 of the Form R. Therefore, EPA is proposing to remove this reporting requirement and eliminate section 1.4 from the Form R.
EPA has evaluated the additional burden hours, cost, and potential benefits associated with the use of Form R-D instead of Form R for EPCRA section 313 reporting on the dioxin and dioxin-like compounds category. As part of this evaluation, EPA examined three options for obtaining more detailed information on dioxin and dioxin-like compounds on the Form R-D (Ref. 3). These options are (1) to require facilities to report the total grams TEQ of dioxin and dioxin-like compounds; (2) to require facilities to report the total grams TEQ of dioxin and dioxin-like compounds, as well as to report the mass in grams of each of the 17 individual members of the category; and (3) to require facilities to report the mass in grams of each of the 17 individual members of the category without reporting total grams TEQ. All three options entail changes to sections 5, 6, and 8 (current year only) of the existing Form R to create the Form R-D. In addition, EPA has estimated the additional cost of required electronic reporting for filing the Form R-D. This additional cost only applies to 89 facilities which filed a Form R for dioxin and dioxin-like compounds by submitting a paper form and did not use TRI-ME software to generate it. The total annual cost estimated for each option is the sum of the incremental cost for that option as described below and the additional cost of required electronic reporting for affected facilities.
In order to understand the incremental burden calculations below, it is important to first understand EPA's assumptions about the steps necessary to complete the current Form R for the dioxin and dioxin-like compounds category. EPA assumes that most reporting facilities already have data on the individual compounds that make up this category, since analytical tests generally report results for each compound. Facilities that rely on published emissions factors or other similar information will also often have data on the individual compounds, though in some cases published emissions factors may provide only a single value for the dioxin and dioxin-like compound category as a whole. However, in either case, facilities are required to use only the readily available data. EPA thus assumes that facilities either already have and are currently tracking data on the individual compounds contained in their waste streams (if this is the format of the underlying data on which their reporting is based), or that such data is not readily available, and will still not be readily available following promulgation of this rule. (EPA also recognizes the possibility that facilities may have a mix of data, with data for some waste streams including individual compounds and data for others including only total grams for the category as a whole.) As a result, EPA does not assume any additional burden for data tracking or for calculation of physical quantities of dioxin in individual waste streams. EPA requests comment on these assumptions.
Each option would entail some additional burden for each facility reporting for the dioxin and dioxin-like compounds category. In addition to the activities already conducted as part of the reporting process for Form R, a facility filing the Form R-D under Option 1 would also need to obtain the TEFs from the TRI reporting package for each of the 17 chemicals that comprise the category. Then the facility would multiply the grams released and/or transferred of each of the 17 chemicals in the category by the respective TEF to calculate that chemical's grams TEQ. Next the facility would sum the grams TEQ across the 17 chemicals to calculate the total grams TEQ released and/or transferred to be reported in sections 5, 6, and 8. For Option 2, the facility would also be required to report the mass in grams of each of the 17 chemicals that are subsequently multiplied by the TEFs in sections 5, 6, and 8 of Form R-D. Under Option 3, the facility would be required to report the mass in grams of each of the 17 chemicals in sections 5, 6, and 8 of Form R-D. The facility would not be required to obtain the TEF values or conduct additional multiplication and addition to calculate total grams TEQ. Under Option 3, it is envisioned that EPA would conduct the additional required calculations to derive total grams TEQ once the Form R-D is submitted.
For reporting year 2001, there were 1,315 facilities that filed Form Rs for the dioxin and dioxin-like compounds category (Ref. 3). Of these facilities, 70 percent (920 facilities) completed section 1.4 of the Form R containing distribution information on the members of the category. Since these 920 facilities indicated through their completion of section 1.4 that they have information on the distribution of the quantities of the individual members of the dioxin and dioxin-like compounds category, EPA expects that these facilities are most likely to incur additional burden and cost associated with form completion and record keeping for Form R-D in the first and subsequent reporting years. All 1,315 facilities are expected to experience additional burden and cost associated with rule familiarization in the first year of implementation.
In previous Information Collection Requests, EPA has estimated that, after the first year of reporting, facilities filing Form R typically spend 4 hours on compliance determination, 47.1 hours on form completion, and 5 hours on record keeping and report submission (Ref. 4). Because the Form R-D would create new reporting requirements beyond those for the Form R, EPA expects that affected facilities would experience additional burden and cost. EPA's estimates for the additional burden associated with rule familiarization, form completion, and record keeping for the three options are shown in the following table (Ref. 3).
Under all options, facilities would expend additional time in the first year to become familiar with the new reporting requirements associated with the Form R-D. Under all options, a major difference between burden in first and subsequent years is attributable to rule familiarization. Rule familiarization occurs in the first year of implementation but not in subsequent years.
All three Options require the same underlying level of recordkeeping. It is generally expected that facilities reporting any of the new information requested on Form R-D will be using information already in their possession. Form completion requirements differ between the three options, however. To understand the differences, it is important to know how TEQs are calculated for individual streams.
The basic computational steps for TEQ calculation are to take information on the quantities of the various compounds in each waste stream and multiply them by the TEFs to generate a value in total grams TEQ. Technical staff may employ any one of a number of methods to calculate grams TEQ ranging from hand calculations to the use of spreadsheets. These incremental burden estimates reflect an average burden associated with these different approaches. It is expected that some respondents will exceed the average estimated time of 45 minutes to complete these calculations. The Agency requests comment on whether its 45 minute estimate of TEQ calculation time is appropriate. Option 1 requires the facility to perform all calculations and provide the end result (
Based on the number of facilities that filed reports on dioxin and dioxin-like compounds in 2001, the percentage that reported distribution information, and EPA's estimates of incremental burden, the total incremental burden of Option 1 would be 3,024 hours in the first reporting year and 1,380 hours in subsequent reporting years. The total incremental burden for Option 2 would be 3,327 hours in the first reporting year and 1,683 hours in subsequent reporting years. The total incremental burden for Option 3 would be 2,334 hours in the first reporting year and 690 hours in subsequent reporting years. Using these estimates and the average loaded hourly rates for managerial, technical, and clerical labor, the total incremental industry cost of Option 1 would be approximately $139,000 in the first reporting year and approximately $62,000 in subsequent reporting years. The total incremental industry cost for Option 2 would be approximately $154,000 in the first reporting year and approximately $76,000 in subsequent reporting years. The total incremental industry cost for Option 3 would be approximately $106,000 in the first reporting year and approximately $29,000 in subsequent reporting years. More detailed information on the derivation of these burden hour and cost estimates is available in the public docket for this action (Ref. 3).
Although Option 2 would create slightly more burden and cost for facilities that report on dioxin and dioxin-like compounds, EPA believes that Option 2 would result in greater net benefits than Option 1 by enhancing the utility of the data that are collected. The basic difference between Option 1 and Option 2 is that facilities must record the mass in grams values for each of the 17 chemicals in the reporting category on the Form R-D under Option 2. Provision of these mass in grams data will provide important information on which specific chemicals in the category are contributing most to the total toxicity as expressed in grams TEQ. Without these data, the user would be unable to determine to what extent the grams TEQ are related to dioxin and dioxin-like compounds of higher or lower relative toxicity as expressed by TEFs. These data will also allow the creation of valid time-series if TEFs are ever modified in the future as scientific understanding of the relative toxicity of the dioxin and dioxin-like compounds changes. In addition, provision of the mass in grams values will permit error checking of calculations for total grams TEQ that will enhance data quality. With Option 2, these goals would be attained at a total additional cost of approximately $14,000 to $15,000 per year. This cost may decline as more facilities use the automated routines in the TRI-ME reporting software. Although EPA has not quantified or
EPA expects to incur one-time costs for implementing reporting on the Form R-D. These costs are associated with production of guidance documents and training materials, modification of databases, and re-programming of automated reporting software. EPA's estimate of these one-time costs to allow reporting of individual gram quantities for each member of the dioxin and dioxin-like compounds category and for reporting in toxic equivalents is approximately $1.15 million. These costs are not expected to vary significantly across the three options (Ref. 5).
In addition to the incremental costs for each option, EPA has estimated the annual cost of required electronic reporting for submitting the Form R-D. Only 89 of 1,315 facilities that reported the Form R for dioxin and dioxin-like compounds are affected by this requirement. These 89 facilities submitted the Form R by paper and did not use either TRI-ME software or other approved software to generate their Form R. To meet the requirement that all Form R-D's be filed electronically, EPA modeled that potentially affected paper filers would need to purchase a computer. The annual computer cost annualized over a five year life is $183 (Ref. 3). The total annual computer cost for the 89 affected facilities is $16,280. Thus, the total annual first year and subsequent year cost for both the incremental burden of filing out Form R-D and required electronic reporting for each option is summarized in the following table (Ref 3).
EPA requests comments on its assessment of the costs of the addition of TEQ and individual grams reporting for the dioxin and dioxin-like compounds category. EPA is particularly interested in any options for reducing the burden that these new TEQ reporting requirements may have on small businesses. Of the estimated 481 affected parent companies which own reporting facilities, approximately 19 percent, or 92 companies, are small businesses as defined by the Small Business Administration.
1. American Chemistry Council, American Forest & Paper Association, American Portland Cement Alliance, Edison Electric Institute, and The Aluminum Association letter to John D. Graham, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, Subject: Change to TRI Reporting of Dioxin, February 11, 2002.
2. Van den Berg, M.; Birnbaum, L.; Bosveld, A.T.C.; Brunstrom, B.; Cook, P.; Feeley, M.; Giesy, J.P.; Hanberg, A.; Hasegawa, R.; Kennedy, S.W.; Kubiak, T.; Larsen, J.C.; van Leeuwen, F.X.R.; Liem, A.K.D.; Nolt, C.; Peterson, R.E.; Poellinger, L.; Safe, S.; Schren, D.; Tillitt, D.; Tysklind, M.; Younes, M.; Warn, F.; Zacharewski, T. (1998) Toxic equivalency factors (TEFs) for PCBs, PCDDs, PCDFs for humans and wildlife. Environmental Health Perspectives. 106:775-792.
3. USEPA/OEI. Analysis of the Estimated Burden and Cost of the Form R-D for Dioxin and Dioxin-like Compounds; Toxic Equivalency Reporting; Community Right to Know Toxic Chemical Release Reporting, October 26, 2004.
4. USEPA/OEI. Estimates of Burden Hours for Economic Analyses of the Toxics Release Inventory, June 10, 2002.
5. USEPA/OEI. Memorandum Regarding TEQ Rulemaking Cost to the TRI Program from Daniel R. Bushman, Toxic Release Inventory Regulatory Development Branch, Toxic Release Inventory Program Division to Cody Rice, Analytical Support Branch, Environmental Analysis Division, October 16, 2002.
6. Memorandum Regarding Small Entity Impacts Associated with the Form R-D from Susan Day,
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise
The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the
EPCRA section 313 (42 U.S.C. 11023) requires owners or operators of certain facilities manufacturing, processing, or otherwise using any of over 600 listed toxic chemicals and chemical categories in excess of the applicable threshold quantities, and meeting certain requirements (
For Form R-D, EPA estimates the industry reporting burden for collecting this information (including recordkeeping) at 55.2 hours ($2,566) per response in the first reporting year and 53.9 hours ($2,507) in subsequent years for facilities with distribution data for the members of the category. For facilities without distribution data, the Form R-D is estimated to average 53.4 hours ($2,483) per response in the first reporting year and 52.1 hours ($2,424) in subsequent years. Note that these are total per facility burden and cost estimates for the Form R-D based on Option 2. (If a different option is selected, the total industry reporting burden will be more or less.) These per facility burdens and costs will be offset by burden and cost savings associated with no longer filing a Form R for the dioxin and dioxin-like compounds category. These estimates include the time needed to review instructions; search existing data sources and complete any necessary calculations; gather and maintain the data needed; complete and review the collection of information; and transmit or otherwise disclose the information. The actual burden on any specific facility may be different from this estimate depending on the complexity of the facility's operations and the profile of the releases at the facility. The annual computer cost per facility associated with required electronic reporting annualized over a five year life is $183. The total annual computer cost for the 89 affected facilities is $16,280.
This rule is estimated to cause 1,315 facilities to file a Form R-D rather than a Form R. Based on Option 2, Form R-D reporting is associated with a total burden of approximately 72,000 hours in the first year, and 70,000 hours in subsequent years, at a total estimated industry cost of $3.34 million in the first year and $3.26 million in subsequent years. (If a different option is selected, the total industry reporting burden will be less.) Note that these are total burden and cost estimates for the Form R-D, and that these estimates will be offset by the burden and cost reduction associated with no longer filing a Form R for the dioxin and dioxin-like compounds category. The existing Form R ICR (EPA ICR No. 1363.12) will be amended to delete burden hours and costs associated with 1,315 Form Rs. The net increase in burden hours and cost is reflected in the discussion of economic considerations in Unit VII.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
EPA has established a public docket for this ICR under Docket ID No. TRI-2002-0001, which is available for public viewing at the Office of Environmental Information Docket in the EPA Docket Center, EPA West, Room B102, 1301 Constitution Avenue., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m.-4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Office of Environmental Information Docket is (202) 566-1752. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques to Docket ID No. TRI-2002-0001 and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for EPA. Include the EPA ICR number 2086.01 in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after March 7, 2005, a comment to OMB is best assured of having its full effect if OMB receives it by April 6, 2005. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A business that is classified as a “small business” by the Small Business Administration at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a
This rule is expected to affect the 481 parent companies that own the 1,315 facilities that report on dioxin and dioxin-like compounds. Of the affected parent companies, approximately 19 percent, or 92 companies, are small businesses as defined by the Small Business Administration. Of the 92 small businesses affected by this rule, approximately 8 would be subject to both incremental burden costs from filling out the Form R-D and computer costs from required electronic reporting. No small governments or small organizations are expected to be affected by this action. Based on the option with the highest burden to reporting facilities (Option 2), each affected facility is expected to expend approximately 3.1 hours in the first year and 1.8 hours in subsequent years to comply with the additional reporting requirements. Based on the incremental cost estimates for these burden hours, the number of facilities owned by each small businesses, and the annual revenues of the affected small businesses, all 92 affected small businesses are expected to experience incremental cost impacts of less than one percent of annual revenues (Ref. 3 and Ref. 6).
After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Based on EPA's cost estimate for this action, it has been determined that this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. Thus, Executive Order 13175 does not apply to this rule. In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Indian Tribal Governments, EPA specifically solicits additional comment on this rule from tribal officials.
This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272
The proposed rulemaking involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. However, EPA identified no such standards. Consequently, EPA proposes to use the TEFs established by the WHO in 1998 (Ref. 2).
Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, Toxic chemicals.
Therefore, it is proposed that 40 CFR part 372 be amended as follows:
1. The authority citation for part 372 continues to read as follows:
42 U.S.C. 11023 and 11048.
2. In § 372.30, revise paragraph (a) to read as follows:
(a) For each toxic chemical known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in § 372.25, § 372.27, or § 372.28 at its covered facility described in § 372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the facility is located a completed EPA Form R (EPA Form 9350-1) or, for the dioxin and dioxin-like compounds category, EPA Form R-D (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part.
3. In § 372.85, revise paragraphs (a), (b) introductory text, and (b)(15)(ii) to read as follows:
(a)
(b)
(15) * * *
(ii) Reporting for the dioxin and dioxin-like compounds category. All of the following must be reported and must be reported on the Form R-D:
(A) Report the total quantity of the category as a whole, in units of grams per year;
(B) Report the quantity of each member of the dioxin and dioxin-like compounds category in units of grams per year;
(C) Report toxic equivalency (TEQ) for the category, in units of grams TEQ per year. TEQs shall be calculated using the following toxic equivalent factors:
Federal Communications Commission.
Proposed rule; comments requested.
This document seeks public comment on a speed of answer requirement for the provision of Video Relay Service (VRS). The speed of answer requirement is currently waived as a mandatory minimum standard for VRS. The Federal Communications Commission (Commission) has reviewed the comments provided in response to the Further Notice of Proposed Rulemaking (
Interested parties may file comments in this proceeding on or before February 25, 2005. Reply comments may be filed on or before March 4, 2005.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Dana Jackson, Consumer & Governmental Affairs Bureau, Disability Rights Office at (202) 418-2247 (voice), (202) 418-7898 (TTY), or e-mail at
This is a summary of the Commission's document DA 05-339, released February 8, 2005. When filing comments, please reference CC Docket No. 98-67 and CG Docket No. 03-123. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
On June 30, 2004, the Federal Communications Commission (Commission) released the
(1) What should the speed of answer time be for VRS calls? What percentage of VRS calls should be required to be answered within that period of time?
(2) When should a particular speed of answer rule be effective? Should VRS speed of answer standards be phased in over time? If so, how should the standards be phased in (
(3) What should be the starting and ending points for measuring speed of answer? We note, for example, that in the
(4) How should “abandoned” calls be treated in determining a provider's compliance with a speed of answer standard? The Commission notes that the TRS regulations presently require that abandoned calls be included in the speed of answer calculation.
(5) How should “call backs”—
(6) Should a provider's compliance with a speed of answer rule be measured on a daily or monthly basis? (The current speed of answer rule applicable to the other forms of TRS provides that compliance with the speed of answer rule shall be measured on a daily basis.)
(7) In connection with the adoption of a speed of answer requirement for VRS, should providers be required to submit reports to the Commission detailing call data reflecting their compliance with the speed of answer rule, and if so, how frequently should such reports be filed (
We also seek comment on any other issues relating to the possible adoption of a speed of answer rule for VRS.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of Amendment 6 to the Fishery Management Plan for the Shrimp Fishery of the South Atlantic Region (FMP); request for comments.
NMFS announces that the South Atlantic Fishery Management Council (Council) has submitted Amendment 6 to the FMP for review, approval, and implementation by NMFS. Amendment 6 would modify the FMP's bycatch reduction device (BRD) framework by transferring authority from the Council to NMFS for the BRD testing protocol and by modifying the bycatch reduction criteria established in the BRD framework; require the use of BRDs in the rock shrimp fishery in the exclusive economic zone (EEZ) of the South Atlantic; establish bycatch reporting requirements for the shrimp fishery of the South Atlantic EEZ; require that all shrimp vessels harvesting penaeid shrimp in the South Atlantic EEZ obtain an annually renewable Federal shrimp vessel permit from NMFS; and establish or modify stock status criteria for white, brown, pink, and rock shrimp. The intended effect of Amendment 6 is to enhance the ecological efficiency of the shrimp fishery of the South Atlantic EEZ by better identifying the bycatch taken in the fishery and conserving those species found in the bycatch, while sustaining the viability of the shrimp fishery with
Written comments must be received no later than 5 p.m., eastern time, on May 6, 2005.
You may submit comments by any of the following methods:
• E-mail:
• Federal e-Rulemaking Portal:
• Mail: Steve Branstetter, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.
• Fax: From March 7, 2005 through March 17, 2005, 727-570-5583. From March 22, 2005 through May 6, 2005, 727-824-5308. Comments cannot be received via fax from March 18 through March 21, 2005.
Copies of Amendment 6, which includes a Supplemental Environmental Impact Statement, a Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA), are available from the South Atlantic Fishery Management Council, 1 Southpark Circle, Suite 306, Charleston, SC 29407-4699; phone: 843-571-4366; fax: 843-769-4520; toll free: 866-SAFMC-10; email:
Dr. Steve Branstetter, 727-570-5305; fax 727-570-5583; e-mail:
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each Regional Fishery Management Council to submit any fishery management plan or amendment to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in the
Amendment 6, if implemented, would establish a requirement for penaeid shrimp vessels fishing in the South Atlantic EEZ to possess a Federal commercial vessel permit for South Atlantic penaeid shrimp. Currently, there are limited data available to estimate the number of shrimp fishing vessels and fishing effort expended by those vessels in the South Atlantic EEZ. In proposing this action, the Council concluded that information collected via a Federal permit system would aid in the formulation of sound management measures. Indirectly, in combination with the proposed standardized bycatch reporting methodology (see below), better information can be collected by which to manage those species that are taken as bycatch in the shrimp fishery.
Amendment 6 contains proposed measures to require vessels participating in the rock shrimp fishery in the South Atlantic EEZ to use NMFS-certified BRDs. This action would address the requirements of National Standard 9 of the Magnuson-Stevens Act to (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch, to the extent practicable. The proposed action also supports the Council's efforts to achieve an ecosystem approach in fisheries management.
Amendment 6, if implemented, also would establish a method to regularly monitor, report, and estimate the bycatch in the shrimp fishery of the South Atlantic region, in compliance with section 303(a)(11) of the Magnuson-Stevens Act. Section 303(a)(11) states that any FMP that is prepared by any Council, or by the Secretary of Commerce, with respect to any fishery, shall “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery....” To support this mandate, the National Standard Guidelines call for development of a database for each fishery in order to house bycatch and bycatch mortality information. The Council proposes to adopt the Atlantic Coastal Cooperative Statistics Program Release, Discard, and Protected Species Module to house bycatch and bycatch mortality information. Until this module is fully implemented and active, the Council proposes to use a variety of sources to assess and monitor bycatch including observer coverage and logbooks aboard Federally permitted commercial shrimp vessels, state cooperative data collection, and grant funded projects.
Amendment 6 proposes to modify the BRD framework procedure, as established in the Shrimp FMP, giving NMFS the authority to maintain and modify the BRD Testing Protocol as necessary. The BRD framework was established in Amendment 2 to the Shrimp FMP and outlines the procedures by which an experimental BRD is to be tested for its ability to reduce bycatch in a shrimp trawl. The intent of this action is to reduce the administrative burden associated with potential revisions of the BRD Testing Protocol and to achieve more timely implementation of any such revisions.
Relatedly, to more effectively address bycatch reduction, the Council is proposing to adjust the criteria for the certification of new BRDs established in the BRD framework. Amendment 2's BRD framework established criteria by which experimental BRDs would be certified for use in the South Atlantic penaeid shrimp fishery. Currently, a BRD is certified if the BRD can be statistically demonstrated to reduce bycatch mortality of juvenile Spanish mackerel and weakfish by a minimum of 50 percent or if it demonstrates a 40-percent reduction in numbers of Spanish mackerel and weakfish. When these criteria were established, both species were considered overfished. Spanish mackerel now is completely recovered, and weakfish is no longer overfished. In addition, sampling for these species has proved to be impractical because it is difficult to encounter Spanish mackerel and weakfish simultaneously while testing BRDs.
To better address the requirements of National Standard 9, the Council is proposing to change the certification criteria to a general finfish reduction requirement. The Council is proposing that for a new BRD to be certified for use in the shrimp fishery, it must be statistically demonstrated that the BRD can reduce the total weight of finfish catch by at least 30 percent. This broader bycatch reduction objective would support the Council's efforts to achieve an ecosystem approach in fisheries management.
Finally, to better comply with the Magnuson-Stevens Act requirements, the Council is proposing to establish or modify the current stock status criteria established for white, brown, pink, and rock shrimp. The Magnuson-Stevens Act requires that each FMP define reference points in the form of maximum sustainable yield (MSY) and optimum yield (OY), and specify objective and measurable criteria for identifying when the fishery is overfished and/or undergoing overfishing. Status determination criteria include a minimum stock size threshold (MSST) to indicate when a stock is overfished, and a maximum fishing mortality threshold (MFMT) to indicate when a stock is undergoing overfishing. Together, these four parameters (MSY, OY, MSST, and MFMT) provide fishery managers with the tools to determine the status of a fishery at any given time and assess whether management measures are achieving established goals. In the Council's 1998 comprehensive amendment to the FMP that addressed SFA definitions, the Council concluded
A proposed rule that would implement measures outlined in Amendment 6 has been received from the Council. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the
Comments received by May 6, 2005, whether specifically directed to the amendment or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendment. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of Amendment 15 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic (FMP); request for comments.
NMFS announces that the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) have submitted Amendment 15 to the FMP for review, approval, and implementation by NMFS. Amendment 15 would establish a limited access system for the commercial fishery for Gulf and Atlantic group king mackerel, and change the fishing year for Atlantic migratory groups of king and Spanish mackerel to March 1 through February 28-29. The intended effect of Amendment 15 is to support the Council's efforts to achieve optimum yield in the fishery, and provide social and economic benefits associated with maintaining stability in the fishery.
Written comments must be received no later than 5 p.m., eastern time, on May 6, 2005.
You may submit comments by any of the following methods:
• E-mail:
• Federal e-Rulemaking Portal:
• Mail: Steve Branstetter, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.
• Fax: From March 7, 2005 through March 17, 2005, 727-570-5583. From March 22, 2005 through May 6, 2005, 727-824-5308. Comments cannot be received via fax from March 18 through March 21, 2005.
Copies of Amendment 15, which includes an Environmental Assessment, a Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA), are available from the Gulf of Mexico Fishery Management Council, 3018 North U.S. Highway 301, Suite 1000, Tampa, FL 33619-2272; email:
Dr. Steve Branstetter, 727-570-5305; fax 727-570-5583; e-mail: steve.branstetter@noaa.gov.
The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the FMP. The FMP was prepared by the Councils and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The Magnuson-Stevens Act requires each Regional Fishery Management Council to submit any fishery management plan or amendment to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in the
Amendment 15, if implemented, would establish a limited access system for the commercial fishery for Gulf and Atlantic group king mackerel. A commercial king mackerel vessel permit moratorium was established by Amendment 8 to the FMP in March 1998, and Amendment 12 extended the expiration date of the moratorium through October 15, 2005, or until the moratorium could be replaced with a license limitation, limited access, and/or individual fishing quota (IFQ) or individual transferable quota (ITQ) system, whichever occurred earlier. The intended effect of the moratorium was to prevent increases in effort, to possibly reduce the number of permittees in the king mackerel fishery, and to stabilize the economic performance of current participants, while protecting king mackerel from overfishing. The existing restricted number of fishery participants, especially in the Gulf of Mexico, has demonstrated the capability of harvesting their total allowable catch (TAC) well in advance of the end of the various fishing seasons. Allowing the fishery to revert to open access would probably hasten these closures. The proposed limited access system would maintain the existing restricted access to the fishery for an indefinite period, with the intent to provide continued social and economic stability to the king mackerel fishery.
Amendment 15 contains a second action, which, if implemented, would change the fishing year for Atlantic migratory groups of king and Spanish mackerel to March 1 through February 28-29. The current fishing year for Atlantic migratory groups of both king and Spanish mackerel extends from April 1 through March 31. Under the existing fishing year, the commercial quota for Atlantic group king mackerel has only been met three times. However, should TAC need to be reduced in the future, there is a potential for the commercial quota to be met, and the fishery would be closed by the end of the season (i.e., in March). A March closure could adversely affect the social and economic stability of South Atlantic fisheries due to other commercial closures for alternative target species
A proposed rule that would implement measures outlined in Amendment 15 has been received from the Council. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the
Comments received by May 6, 2005, whether specifically directed to the FMP or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendment. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.
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.
Food and Nutrition Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service is publishing for public comment a summary of a proposed information collection. The proposed collection is a revision of a currently approved collection of the Food Stamp Program for which approval expires on February 28, 2005. The Food Stamp Act of 1977, as amended, requires that the Food and Nutrition Service will provide all authorized retail food stores and wholesale food concerns with redemption certificates. The redemption certificates are to be used by all authorized retailers and wholesale firms to present food coupons to insured financial institutions for credit or for cash. Requirements in the Food Stamp Program regulations are the basis for the information collected on Form FNS-278B, Food Stamp Redemption Certificate and Form FNS-278-4, Wholesaler Redemption Certificate.
The Food and Nutrition Service is rapidly phasing out the use of paper food coupons. Currently, 99.9 percent of all food stamp benefits are issued electronically. Forty-eight States, the District of Columbia, the Virgin Islands, Guam, and Puerto Rico have online operating Electronic Benefit Transfer (EBT) systems. Two States operate offline food stamp EBT systems and issue paper food coupons to recipients who move out of State and have remaining food stamp benefits. Many States have already closed out their coupon inventory completely and more will be doing the same in the upcoming year. Approximately 438,955 Redemption Certificates were processed by retailers and wholesalers in Fiscal Year 2004, and the number continues to decline due to 100 percent EBT
Written comments must be received on or before May 6, 2005 to be assured of consideration.
Send comments to: Andrea Gordon, Chief, Redemption Management Branch, Benefit Redemption Division, Food and Nutrition Service, U. S. Department of Agriculture, 3101 Park Center Drive, Room 404, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Andrea Gordon at (703) 305-1863 or via e-mail to:
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 404.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Andrea Gordon, (703) 305-2456.
The burden associated with this form is derived from the numbers of RCs processed annually, based on information available in our Store Tracking and Redemption System database. As of September 2004, the number of program respondents was 152,499 retailers and wholesalers and 5,850 banks participating in the FSP. The number of completed RC responses by authorized retailers was 438,955 annually. We estimate that it takes an average of 1.2 minutes (or .020 hours) for a retailer to complete the information on the RC and for the financial institution to handle and process the document.
For this information collection package, we calculated the burden hours from each year, added them together (2005-2007) and divided by three to obtain the average burden for which we are seeking OMB approval. We estimate the average burden hours for the next three years to be 69.501 hours.
The burden for each of the three fiscal years (FYs) are estimated as follows:
In FY 2005, we estimate the number of program respondents will be 7,624 respondents with 5,850 banks continuing to participate in the FSP—a reduction of 144,874 (or 95 percent) respondents. We also estimate that the number of completed RC responses by authorized retailers to be 8,779.1 annually—providing for a reduction of 430,175.9 (or 95 percent) annual responses, and a total burden hours calculated to be 175.582 hours.
In FY 2006, we estimate the number of program respondents will be 2,668.73 respondents with 5,850 banks continuing to participate in the FSP—a reduction of 4,956.22 (or 65 percent) respondents. We also estimate that the number of completed RC responses by authorized retailers to be 1,316.86 annually—providing for a reduction of 7,462.23 (or 85 percent) annual responses, and a total burden hours calculated to be 26.337 hours.
In FY 2007, we estimate the number of program respondents will be 667.18 respondents with 5,850 banks continuing to participate in the FSP—a reduction of 2,001.55 (or 75 percent) respondents. We also estimate that the number of completed RC responses by authorized retailers to be 329.217 annually—providing for a reduction of 987.66 (or 75 percent) annual responses, and a total burden hours calculated to be 6.584 hours.
The estimated reduction of respondents and annual burden hours is based on a projected decrease in the number of authorized retailers participating in the FSP, and a decrease in the number of RCs processed as a result of fewer authorized retailers accepting paper food coupons due to FNS phasing out the use of paper food coupons.
Forest Service, USDA.
Notice of program implementation.
The Military Construction Appropriations and Emergency Hurricane Supplemental Appropriations Act, 2005 (Pub. L. 108-324) makes $10,000,000 available to the Secretary of Agriculture to provide assistance to eligible nonindustrial private forest landowners who suffered losses during 2004, as a result of hurricane, tropical
Assistance will be made available to eligible landowners from March 2005 until such time as all funds are expended.
Information about the Forest Land Recovery Program can be obtained by writing to the USDA Forest Service, Cooperative Forestry Staff headquarters located at 1400 Independence Avenue, SW., Washington, DC 20250-1123.
Karl R. Dalla Rosa, Cooperative Forestry Staff, (202) 205-6206.
All program funds will be adminsitered by the Chief of the Forest Serivce through the Forest Service Regional Forester, in partnership with State forestry agencies in the States of Alabama and Florida, where significant damage and loss to private forest resources has occurred. The State Foresters shall use all program funds to provide cost-share assistance to non-industrial private forest landowners in their States, who suffered losses to hurricanes and tropical storms during the 2004 hurricane season. All funds will be accounted for in accordance with Federal financial accounting standards. The Chief has final authority to resolve all issues that may arise in the adminsitraton of these funds.
The State Foresters shall make all program funds available, as cost-share assistance to eligible landowners as follows:
1. For the purposes of site preparation (including debris removal), planting and other purposes related to the restoration of damaged or lost forest resources.
2. Following the preparation of a management or practice plan that identifies the needed practices, specifications, and performance period for the implementation of the practice(s) to achieve the forest restoration objectives of the landowner.
3. As reimbursements for practices completed on a 75% cost-share basis.
4. Consistent with appropriate per acre cost-share rate maximums for eligible practices, as established by the State Foresters, through this or existing cost-share programs.
5. No single landowner shall receive more than $75,000 total in cost-share assistance.
6. No single landowner shall receive assistance for the treatment of more than 1000 acres of forestland.
A landowner is eligible for program assistance if all of the following requirements are met:
1. The landowner is an individual, group, association, corporation, Indian Tribe, or other legal private entity owning not more than 5,000 acres of timber producing forest land (or a person who has received concurrence from the landowner for practice implementation and who holds a lease on the land for a minimum of 10 years). Corporations whose stocks are publicly traded or owners principally engaged in the primary processing of raw wood products are excluded.
2. The landowner owns forest land in either Florida or Alabama, where significant forest resource loss or damage has occurred as a result of one or more hurricane or tropical storm during the 2004 hurricane season. The landowner has not received, nor will receive cost-share assistance from the USDA Farm Service Agency under Public Law 108-324, Section 101(c), the Tree Assistance Program.
Payments made to landowners may be recaptured under one or more of the following circumstances:
1. If any landowner, successor, or assignee uses any scheme or device to unjustly benefit from this program. A scheme or device includes, but is not limited to, coercion, fraud or misrepresentation, false claims, or any business dissolution, reorganization, revival, or other legal mechanism designed for or having the effect of evading the requirements of this program. Financial assistance payments shall be withheld or a refund of all or part of any cost-share payments otherwise due or paid to that person shall be secured.
2. If any landowner or successor takes any action or fails to take action, which results in the destruction or impairment of a prescribed practice for the duration of the practice. Cost-share payments shall be withheld or a recapture of all or part of any cost-share payments otherwise due or paid shall be secured, based on the extent and effect of destruction and impairment.
3. If it is determined that the landowner has also received assistance from the USDA Farm Service Agency under H.R. 4837, Section 101(c)(2), the Tree Assistance Program.
Eligible landowners are may apply for program assistance at their local office of the Florida Division of Forestry or the Alabama Forestry Commission.
Forest Service, USDA.
Notice of meeting.
The Yakutat Resource Advisory Committee will meet in Yakutat, Alaska. The purpose of the meeting is continue business of the Yakutat Resource Advisory Committee. The committee was formed to carry out the requirements of the Secure Rural Schools and Self-Determination Act of 2000. The agenda for this meeting is to review submitted project proposals and consider recommending projects for funding. Project proposals are due by March 7, 2005 to be considered at this meeting.
The meeting will be held March 18, 2005 from 6-9 p.m. and will continue on March 19, 2005 from 9-12 a.m., if necessary.
The meeting will be held at the Kwaan Conference Room, 712 Ocean Cape Drive, Yakutat, Alaska. Send written comments to Tricia O'Connor, c/o Forest Service, USDA, P.O. Box 327, Yakutat, AK 99689, (907) 784-3359 or electronically to
Tricia O'Connor, District Ranger and Designated Federal Official, Yakutat Ranger District, (907) 784-3359.
The meeting is open to the public. Council discussion is limited to Forest Service staff and Council members. However, persons who wish to bring resource projects or other Resource Advisory Committee matters to the attention of the Council may file written statements with the Council staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by March 7, 2005 will
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension of a currently approved information collection in support of the program for “Rural Development Loan Servicing.”
Comments on this notice must be received by May 6, 2005 to be assured of consideration.
Mel Padgett, Rural Business-Cooperative Service, USDA, Stop 3225, 1400 Independence Ave., SW., Washington, DC 20250-3225, Telephone: (202) 720-1495.
Copies of this information collection can be obtained from Renita Bolden, Regulations and Paperwork Management Branch, at (202) 692-0035.
Comments may be sent to Renita Bolden, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington, DC 20250-0742. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Rural Business-Cooperative Service, USDA.
Notice of solicitation of applications.
The Rural Business-Cooperative Service (RBS) announces the availability of approximately $14.3 million in competitive grant funds for fiscal year (FY) 2005 to help independent agricultural producers enter into value-added activities. RBS hereby requests proposals from eligible independent producers, agricultural producer groups, farmer or rancher cooperatives, and majority-controlled producer-based business ventures interested in a competitively-awarded grant to fund one of the following two activities: (1) Planning activities needed to establish a viable value-added marketing opportunity for an agricultural product (
You may submit completed applications for grants on paper or electronically by 4 p.m. Eastern time on May 6, 2005.
You may obtain application guides and materials for a Value-Added Producer Grant at the following Internet address:
Submit final paper applications via the postal service for a grant to Cooperative Services, Attn: VAPG Program, Mail Stop 3250, 1400 Independence Ave., SW., Washington, DC 20250-3250. Submit final paper applications via UPS or Federal Express for a grant to Cooperative Services, Attn: VAPG Program, Room 4016, 1400 Independence Ave., SW., Washington, DC 20250. The phone number that should be used for FedEx packages is (202) 720-7558.
Submit electronic grant applications using
The Agency Contact for your state is listed in Section VII of this notice or visit the program Web site at
This solicitation is issued pursuant to section 231 of the Agriculture Risk Protection Act of 2000 (Pub. L. 106-224) as amended by section 6401 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171) authorizing the establishment of the Value-Added Agricultural Product Market Development grants, also known as Value-Added Producer Grants (VAPG). The Secretary of Agriculture has delegated the program's administration to USDA's Rural Business-Cooperative Service.
The primary objective of this grant program is to help eligible independent producers of agricultural commodities, agricultural producer groups, farmer and rancher cooperatives, and majority-controlled producer-based business ventures develop strategies to create marketing opportunities and to help develop business plans for viable marketing opportunities. Eligible agricultural producer groups, farmer and rancher cooperatives, and majority-controlled producer-based business ventures must limit their proposals to emerging markets. These grants will facilitate greater participation in emerging markets and new markets for value-added products. Grants will only be awarded if projects or ventures are determined to be economically viable and sustainable. No more than 10 percent of program funds can go to applicants that are majority-controlled producer-based business ventures.
(1) A change in its physical state,
(2) Differentiated production or marketing, as demonstrated in a business plan, or
(3) Product segregation. Also,
(4) The economic benefit realized from the production of farm or ranch-based renewable energy.
Incremental value may be realized by the producer as a result of either an increase in value to buyers or the expansion of the overall market for the product. Examples include milling wheat into flour, slaughtering livestock or poultry, making strawberries into jam, the marketing of organic products, an identity-preserved marketing system, wind or hydro power produced on land that is farmed and collecting and converting methane from animal waste to generate energy. Identity-preserved marketing systems include labeling that identifies how the product was produced and by whom.
Applicants must be an independent producer, agricultural producer group, farmer or rancher cooperative, or majority-controlled producer-based business venture as defined in the “Definitions” section of this notice. If the applicant is an unincorporated group (steering committee), it must form a legal entity before the grant period can begin.
Matching funds are required. Applicants must verify in their applications that matching funds are available for the time period of the grant. Matching funds must be at least equal to the amount of grant funds requested. Unless provided by other authorizing legislation, other Federal grant funds cannot be used as matching funds. Matching funds must be spent at a rate equal to or greater than the rate at which grant funds are expended. Matching funds must be provided by either the applicant or by a third party in the form of cash or in-kind contributions. Matching funds must be spent on eligible expenses and must be from eligible sources if they are in-kind contributions.
• Product Eligibility: The project proposed must involve a Value-Added product as defined in the “Definitions” section of this notice. Applicants should note that a project falling under the second definition of Value-Added must already have a business plan in place at the time of application. The applicant must reference this business plan in the application. Because of this requirement, it is unlikely that projects falling under the second definition of Value-Added will be eligible to apply for a planning grant. In order to be eligible under the farm or ranch-based renewable energy category, the project must include energy generated on-farm through the use of agricultural commodities, wind power, water power or solar power.
• Activity Eligibility: The project proposed must specify whether grant funds are requested for planning activities or for working capital. Applicants may not request funds for both types of activities in one application. Applications requesting funds for both planning activities and for working capital will not be considered for funding. Applicants other than independent producers applying for a working capital grant must demonstrate that the venture has not been in operation more than two years at the time of application.
• Grant Period Eligibility: Applications that have a timeframe of more than 365 days will be considered ineligible and will not be considered for funding. Applications that request funds for a time period ending after December 31, 2006, will not be considered for funding.
• Applications without sufficient information to determine eligibility will not be considered for funding.
• Applications that are non-responsive to the submission requirements detailed in Section IV of this notice will not be considered for funding.
• Applications that are missing any required elements (in whole or in part) will not be considered for funding.
• Applicants may submit more than one application, but in the event that more than one application for any applicant scores high enough to be funded, only the highest ranking application will be funded.
• Applicants who have already received a planning grant for the proposed project shall not receive another planning grant for the same project. Applicants who have already received a working capital grant for a project shall not receive any additional grants for that project. Applicants may receive a planning grant for a project in one funding cycle and receive a working capital grant for the same project in a subsequent funding cycle. Please note that the Agency penalizes an applicant who is applying for a planning grant when it has already received a planning grant or who is applying for a working capital grant when it has already received a working capital grant by deducting ten points from the applicant's score under criterion 10.
• Applicants may also receive one grant in any given funding year and be eligible to receive another grant in a subsequent funding year, subject to the above restrictions.
• If an applicant currently has a VAPG, the grant period for that grant must be scheduled to expire by December 31, 2005.
A. Address to Request Application Package: If you plan to apply using a paper application, you can obtain the application package for this funding opportunity at the following Internet address:
B. Content and Form of Submission: You may submit your application in paper or in an electronic format. To view an application outline, please visit the program Web site at:
• Font size: 12 point unreduced.
• Paper size: 8.5 by 11 inches.
• Page margin size: 1 inch on the top, bottom, left, and right.
• Printed on only one side of each page.
• Held together only by rubber bands or metal or plastic clips; not bound in any other way.
• Language: English, avoid jargon.
• The submission must include all pages of the application.
• It is recommended that the application is in black and white, and not color. All paper applications will be scanned electronically for further review upon receipt by the Agency and the scanned images will all be in black and white. Those evaluating the application will only receive black and white images.
If you submit your application electronically, you must follow the instructions given at the Internet address:
An application must contain all of the following elements. Any application that is missing any element or contains an incomplete element will not be considered for funding:
1. Form SF-424, “Application for Federal Assistance.” In order for this form to be considered complete, it must contain the legal name of the applicant, the applicant's DUNS number, the applicant's complete mailing address, the name and telephone number of a contact person, the employer identification number, the start and end dates of the project, the federal funds requested, other funds that will be used as matching funds, an answer to the question, “Is applicant delinquent on any federal debt?”, the name and signature of an authorized representative (if the signature is of anyone other than a stated owner of the proposed venture, the application should include a signed statement by either the owner(s) of the entity or the governing board stating that the signature is made by an authorized person), the telephone number of the authorized representative, and the date the form was signed. Other information requested on the form may be applicable, but the above-listed information is required for an application to be considered complete.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant from RBS. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
2. Form SF-424A, “Budget Information—Non-Construction Programs.” In order for this form to be considered complete, the applicant must fill out Sections A, B, C, and D. The applicant must include both federal and matching funds.
3. Form SF-424B, “Assurances—Non-Construction Programs.” In order for this form to be considered complete, the form must be signed by an authorized official (if the signature is of anyone other than a stated owner of the proposed venture, the application should include a signed statement by either the owner(s) of the entity or the governing body stating that the signature is made by an authorized person) and include the title, name of applicant, and date submitted.
4. Survey on Ensuring Equal Opportunity for Applicants. Submission of this form is voluntary for non-profit applicants only. For-profit applicants should not submit this form.
5. Title Page. The Title Page should include the title of the project as well as any other relevant identifying information. The length should not exceed one page.
6. Table of Contents. For ease of locating information, each proposal must contain a detailed Table of Contents (TOC) immediately following the Title Page. The TOC should include page numbers for each component of the proposal. Pagination should begin immediately following the TOC. In order for this element to be considered complete, the TOC should include page numbers for the Executive Summary, an Eligibility Discussion, the Proposal Narrative and its subcomponents (Project Title, Information Sheet, Goals of the Project, Work Plan, Performance Evaluation Criteria and Proposal Evaluation Criteria), Verification of Matching Funds and Certification of Matching Funds.
7. Executive Summary. A summary of the proposal, not to exceed one page, should briefly describe the project, including goals, tasks to be completed and other relevant information that provides a general overview of the project. In this section the applicant
8. Eligibility Discussion. A detailed discussion, not to exceed four (4) pages, describing how the applicant, project, and purpose meet the eligibility requirements. In the event that more than 4 pages are submitted, only the first 4 pages will be considered.
The applicant must first describe how it meets the definition of an independent producer, agricultural producer group, farmer or rancher cooperative, or a majority-controlled producer-based business venture as defined in the “Definitions” section of this funding announcement. The applicant must apply as only one type of applicant.
If the applicant is an independent producer, the proposal must demonstrate that the owners of the business applying own and produce more than 50 percent of the raw commodity that will be used for the value-added product. The applicant must also demonstrate that the product is owned by the producers from its raw commodity state through the production of the value-added product.
If the applicant is an agricultural producer group, it must identify the independent producers on whose behalf the work will be done. These producers must own and produce the commodity to which value will be added. Note that applicants tentatively selected for a grant award must verify that the work will be done on behalf of the Independent Producers identified in the application.
If the applicant is a farmer or rancher cooperative, the applicant must reference the business' standing as a cooperative in its state of incorporation. The applicant must also explain how the cooperative is 100 percent owned and controlled by Independent Producers. If a cooperative is not 100 percent owned and controlled by Independent Producers, it may still be eligible to apply as a Majority-Controlled Producer-Based Business Venture, provided it meets the definition in Section I. If the applicant is applying on behalf of only a portion of its membership, that portion must be identified. Note that applicants tentatively selected for a grant award must verify that the work will be done on behalf of the Independent Producers identified in the application.
If the applicant is a majority-controlled producer-based business venture, the proposal must state the percentage of the venture owned by independent producers, or partnerships, LLCs, LLPs, corporations or cooperatives that are themselves 100 percent owned and controlled by Independent Producers (eligible producers). The percentage must be calculated by dividing the ownership interest of the eligible producers by the ownership interest of all owners. These eligible producers must own and produce the commodity to which value will be added. The applicant must also demonstrate that eligible producers have majority control over the business. Majority control must be demonstrated through voting rights on the governing body of the business venture. The majority of voting rights must belong to eligible producers who own and produce the commodity to which value will be added.
In addition, the applicant must describe all organizations that are involved in the project.
The applicant must next describe how the value-added product to be produced meets the definition of “Value-Added” as defined in the “Definitions” section of this funding announcement.
If the product meets the first definition, the application must explain the change in physical state or form of the product.
If the product meets the second definition, the proposal must explain how the production or marketing of the commodity enhances the value-added product's value. The enhancement of value should be quantified by using a comparison with value-added products produced or marketed in the standard manner. Also, a business plan that has been developed for the applicant for the project must be referenced.
If the product meets the third definition, the proposal must explain how the physical segregation of a commodity or product enhances its value. The enhancement of value should be quantified, if possible, by using a comparison with commodities marketed without segregation.
If the product meets the fourth definition, the proposal must explain how the renewable energy will be generated on a farm or ranch.
Finally, the applicant must describe how the project purpose is eligible for funding. The project purpose is comprised of two components. First, the project activities must be planning activities or working capital activities, but not both. Second, the activities must be directly related to the processing and/or marketing of a value-added product. Agricultural production activities are not eligible for funding.
If the grant request is for planning activities, working capital expenses are not eligible for funding. If more than 20 percent of the total project cost (both grant and matching funds) for a planning activities application is for working capital expenses, the entire application will be determined to be ineligible and will not be considered for funding. If 20 percent or less of the total project cost for a planning activities application is for working capital expenses, the application may still be considered for funding, but any subsequent award will only be for eligible project expenses.
If the grant request is for working capital, planning activities are not eligible for funding. If more than 20 percent of the total project cost (both grant and matching funds) for a working capital application is for planning activities, the entire application will be determined to be ineligible and will not be considered for funding. If 20 percent or less of the total project cost for a working capital application is for planning activities, the application may still be considered for funding, but any subsequent award will only be for eligible project expenses.
If the applicant has already received a planning grant for a project, it is only eligible to apply for a working capital grant. If an applicant has already received a working capital grant for a project, it is not eligible to apply for any further grants for that project.
An applicant may not receive more than one grant in any one funding cycle. An applicant may submit multiple applications, but if more than one application scores high enough to be funded, only the highest ranked application will be funded.
9. Proposal Narrative. The narrative, not to exceed 35 pages (Times New Roman, 12 point font, 1 inch margins) must include the following information. In the event that more than 35 pages are submitted, only the first 35 pages submitted will be considered.
i. Project Title. The title of the proposed project must be brief, not to exceed 75 characters, yet describe the essentials of the project. It should match the project title submitted on the SF-424. The Project Title does not need to appear on a separate page. It can be included on the Title Page and/or on the Information Sheet.
ii. Information Sheet. A separate one page information sheet listing each of the evaluation criteria referenced in this funding announcement followed by the page numbers of all relevant material contained in the proposal that address or support each criterion.
iii. Goals of the Project. A clear statement of the ultimate goals of the project. There must be an explanation of how a market will be expanded and the degree to which incremental revenue will accrue to the benefit of the agricultural producer(s).
iv. Work Plan. The narrative must contain a description of the project and set forth the tasks involved in reasonable detail. The description should specify the activity, who will perform the activity, during what time frame the activity will take place, and the cost of the activity. Please note that one of the Proposal Evaluation Criteria evaluates the Work Plan and Budget. Applicants should only submit the Work Plan and Budget once, either as Section IV.B.9. or as part of the Work Plan/Budget evaluation criterion discussion.
v. Working capital applications must also include three (3) years of pro forma financial statements, including an explanation of all assumptions, such as input prices, finished product prices, and other economic factors used to generate the financial statements. The financial statements must include cash flow statements, income statements, and balance sheets. Income statements and cash flow statements must be monthly for the first year, then annual for the next two years. The balance sheet should be annual for all three years. The financial statements will not count as part of the 35 page limit for the narrative section of the proposal.
vi. Performance Evaluation Criteria. The applicant must suggest criteria by which the project should be evaluated in the event that a grant is awarded. These suggested criteria are not binding on USDA. Please note that these criteria are different from the Proposal Evaluation Criteria and are a separate requirement. Failure to submit at least one performance criterion by the application deadline will result in a determination of incomplete and the proposal will not be considered for funding.
vii. Proposal Evaluation Criteria. Each of the proposal evaluation criteria referenced in this funding announcement must be addressed, specifically and individually, in narrative form. Failure to address the appropriate evaluation criteria (planning grant proposals must address planning grant evaluation criteria and working capital grant proposals must address working capital grant evaluation criteria) by the application deadline will result in a determination of incomplete and the proposal will not be considered for funding.
10. Conflict of Interest Disclosure. If the applicant plans to conduct business with any family members, company owners, or other identities of interest using grant or matching funds, the nature of the business to be conducted and the nature of the relationship between the applicant and the identity of interest must be disclosed. Examples include in-kind matching funds donated by the applicant's immediate family and contracting with someone who has a financial interest in the venture for services paid by grant or matching funds.
11. Certification of Judgment or Debt Owed to the United States. Applicants must certify that they are not delinquent on a debt owned to the United States and that the United States has not obtained a judgment against them. No grant funds shall be used to pay a judgment or delinquent debt owed to the United States.
12. Verification of Matching Funds. Applicants must provide a budget to support the work plan showing all sources and uses of funds during the project period. Applicants will be required to verify matching funds, both cash and in-kind. All proposed matching funds must be specifically documented in the application. If matching funds are to be provided by the applicant in cash, a copy of a bank statement with an ending date within 30 days of the application deadline is required. The bank statement must show an ending balance equal to or greater than the amount of cash matching funds proposed. If the matching funds will be provided through a loan or line of credit, the applicant must include a statement from the lending institution verifying the amount available, the time period of availability of the funds, and the purposes for which funds may be used. If the matching funds are to be provided by an in-kind contribution from the applicant, the application must include a signed letter from an authorized representative of the applicant verifying the goods or services to be donated, when the goods and services will be donated, and the value of the goods or services. Applicants should note that only goods or services for which no expenditure is made can be considered in-kind. If the applicant is paying for goods and services as part of the matching funds contribution, the expenditure is considered a cash match, and should be verified as such. If the matching funds are to be provided by a third party in cash, the application must include a signed letter from that third party verifying how much cash will be donated and when it will be donated. Verification for funds donated outside the proposed time period of the grant will not be accepted. If the matching funds are to be provided by a third party in-kind donation, the application must include a signed letter from the third party verifying the goods or services to be donated, when the goods and services will be donated, and the value of the goods or services. Verification for in-kind contributions donated outside the proposed time period of the grant will not be accepted. Verification for in-kind contributions that are over-valued will not be accepted. The valuation process for the in-kind funds does not need to be included in the application, especially if it is lengthy, but the applicant must be able to demonstrate how the valuation was achieved at the time of notification of tentative selection for the grant award. If the applicant cannot satisfactorily demonstrate how the valuation was determined, the grant award may be withdrawn or the amount of the grant may be reduced.
If matching funds are in cash, they must be spent on goods and services that are eligible expenditures for this grant program. If matching funds are in-kind contributions, the donated goods or services must be considered eligible expenditures for this grant program. The matching funds must be spent or donated during the grant period and the funds must be expended at a rate equal to or greater than the rate grant funds are expended. Some examples of acceptable uses for matching funds are: skilled labor performing work required for the proposed project, office supplies, and purchasing inventory. Some examples of unacceptable uses of matching funds are: land, fixed equipment, buildings, and vehicles.
Expected program income may not be used to fulfill the matching funds requirement at the time of application. If program income is earned during the time period of the grant, it may be used to replace other sources of matching funds if prior approval is received from the Agency. Any program income earned during the grant period is subject to the requirements of 7 CFR 3019.24.
If acceptable verification for all proposed matching funds is missing from the application by the application deadline, the application will be determined to be incomplete and will not be considered for funding.
13. Certification of Matching Funds. Applicants must certify that matching funds will be available at the same time grant funds are anticipated to be spent and that matching funds will be spent in advance of grant funding, such that for every dollar of grant funds advanced, not less than an equal amount of
Draft applications may be submitted to an applicant's respective state office (Section VII) by 4 p.m. local time on April 22, 2005. Draft applications may be submitted in paper form or electronically. They may be hand-delivered or faxed at the discretion of the state office. Applicants are not required to submit a draft application, but may choose to do so. Draft applications will be reviewed by the state office for completeness only, and the Agency's official determination will not be made until the official application is received. Drafts submitted after April 22, 2005 may be reviewed for completeness at the discretion of the state office. More information regarding this process can be viewed in Section V.
Executive Order 12372 does apply to this program.
Funding restrictions apply to both grant funds and matching funds. They include, but are not limited to, the following:
1. Funds may only be used for planning activities or working capital for projects focusing on processing and marketing a value-added product.
Examples of acceptable planning activities include to:
i. Obtain legal advice and assistance related to the proposed venture;
ii. Conduct a feasibility analysis of a proposed value-added venture to help determine the potential marketing success of the venture;
iii. Develop a business plan that provides comprehensive details on the management, planning, and other operational aspects of a proposed venture; and
iv. Develop a marketing plan for the proposed value-added product, including the identification of a market window, the identification of potential buyers, a description of the distribution system, and possible promotional campaigns.
Examples of acceptable working capital uses include to:
v. Design or purchase an accounting system for the proposed venture;
vi. Pay for salaries, utilities, and rental of office space;
vii. Purchase inventory, office equipment (
viii. Conduct a marketing campaign for the proposed value-added product.
2. No funds made available under this solicitation shall be used to:
i. Plan, repair, rehabilitate, acquire, or construct a building or facility, including a processing facility;
ii. Purchase, rent, or install fixed equipment, including processing equipment;
iii. Purchase vehicles, including boats;
iv. Pay for the preparation of the grant application;
v. Pay expenses not directly related to the funded venture;
vi. Fund political or lobbying activities;
vii. Fund any activities prohibited by 7 CFR parts 3015 and 3019;
viii. Fund architectural or engineering design work for a specific physical facility;
ix. Fund any expenses related to the production of any commodity or product to which value will be added, including seed, rootstock, labor for harvesting the crop, and delivery of the commodity to a processing facility; or
x. Fund research and development.
xi. Purchase land.
You may submit your final application via the postal service for a grant to Cooperative Services, Attn: VAPG Program, Mail Stop 3250, 1400 Independence Ave., SW., Washington, DC 20250-3250. Submit final paper applications via UPS or Federal Express for a grant to Cooperative Services, Attn: VAPG Program, Room 4016, 1400 Independence Ave., SW., Washington, DC 20250. The phone number that should be used for FedEx packages is (202) 720-7558. You may also choose to submit your final application electronically using the following internet address:
A. Criteria: All eligible and complete applications will be evaluated based on the following criteria. Failure to address any one of the following criteria by the application deadline will result in a determination of incomplete and the application will not be considered for funding. If you believe a criterion is not applicable, you must state that in your application. Applications for planning grants have different criteria to address than applications for working capital grants. Addressing the incorrect set of criteria will result in a determination of incomplete and the application will not be considered for funding. The total points available for each set of criteria is 98.
1. Criteria for applications for Planning Grants are:
i. Nature of the proposed venture (0-25 points). Projects will be evaluated for technological feasibility, operational efficiency, profitability, sustainability and the likely improvement to the local rural economy. The discussion for this criterion must include the agricultural commodity to which value will be added, the process by which value will be added, and a description of the value-added product produced. If the applicant has the information available, the discussion for this criterion should include references to independent, third-party information that the applicant has reviewed, a discussion of similar projects, cost and availability of inputs, the type of market where the value-added product will be marketed (
ii. Qualifications of those doing work (0-10 points). Proposals will be reviewed for whether the personnel who are responsible for doing proposed tasks, including those hired to do the studies, have the necessary qualifications. If a consultant or others are to be hired, more points may be awarded if the proposal includes evidence of their availability and commitment as well. If staff or consultants have not been selected at the time of application, the application should include specific descriptions of the qualifications required for the positions to be filled. Also, rather than attaching resumes at the end of the application, it is preferred that the qualifications of the personnel and consultants are discussed directly within the response to this criterion. If resumes are included, they should be contained within the narrative section of the application within the response to this criterion. If resumes are attached at the end of the application, those pages will be counted toward the page limit for the narrative.
iii. Project leadership (0-10 points). The leadership abilities of individuals who are proposing the venture will be evaluated as to whether they are sufficient to support a conclusion of likely project success. Credit may be given for leadership evidenced in community or volunteer efforts. Also, rather than attaching resumes at the end of the application, it is preferred that the leadership abilities are discussed directly within the response to this criterion. If resumes are included, they should be contained within the narrative section of the application within the response to this criterion. If resumes are attached at the end of the application, those pages will be counted toward the page limit for the narrative.
iv. Commitments and support (0-10 points). Producer commitments will be evaluated on the basis of the number of Independent Producers currently involved as well as how many may potentially be involved, and the nature, level and quality of their contributions. End user commitments will be evaluated on the basis of potential markets and the potential amount of output to be purchased. Proposals will be reviewed for evidence that the project enjoys third party support and endorsement, with emphasis placed on financial and in kind support as well as technical assistance. Letters of support should not be included with the application. If they are submitted, they will not be considered for the purpose of evaluating this criterion. Also, letters demonstrating end-user commitments should not be submitted. If they are submitted, they will not be considered for the purpose of evaluating this criterion. The applicant should reference all support groups and commitments in the discussion of this criterion, and have the support letters and commitment letters available upon request. These support and commitment letters are not the same as the documentation required as part of the verification of matching funds requirement. All documentation needed to properly verify matching funds must be submitted with the application in a separate section.
v. Work plan/Budget (0-10 points). The work plan will be reviewed to determine whether it provides specific and detailed planning task descriptions that will accomplish the project's goals and the budget will be reviewed for a detailed breakdown of estimated costs associated with the planning activities. The budget must present a detailed breakdown of all estimated costs associated with the planning activities and allocate these costs among the listed tasks. Points may not be awarded unless sufficient detail is provided to determine whether or not funds are being used for qualified purposes. Matching funds as well as grant funds must be accounted for in the budget to receive points. Budgets that include more than 10% of total project costs that are ineligible will result in a determination of ineligible and the application will not be considered for funding. However, if an application with ineligible costs is selected for funding, all ineligible costs must be removed from the project and replaced with eligible activities or the amount of the grant award will be reduced accordingly. Logical, realistic, and economically efficient work plans and budgets will result in higher scores.
vi. Amount requested (0-1 points). One (1) point will be awarded for grant requests of $50,000 or less. In addressing this criterion, the applicant should simply state the amount requested.
vii. Project cost per owner-producer (0-2 points). This is calculated by dividing the amount of Federal funds requested by the total number of producers that are owners of the venture. The allocation of points for this criterion shall be as follows: $1-$25,000 equals 2 points, $25,001-$50,000 equals 1 point, $50,001-$100,000 equals 0 points. The applicant must state the number of owner-producers that are part of the venture. For independent producers, farmer- and rancher-cooperatives, and majority-controlled producer-based business ventures, the applicant must state the number of owners of the venture that are independent producers and are also owners of the venture. An owner cannot be considered an independent producer unless he/she is a producer of the agricultural commodity to which value will be added as part of this project. For agricultural producer groups, the number used should be the number of producers represented who produce the commodity to which value will be added. In cases where family members (including husband and wife) are owners and producers in a venture, each family member shall count as one owner-producer.
Applications without enough information to determine the number of producer-owners will be determined to be incomplete and will not be considered for funding. Applicants must be prepared to prove that the numbers and individuals identified meet the requirements specified upon notification of a grant award. Failure to do so shall result in withdrawal of the grant award.
viii. Community and industry support (0-10 points). Applicants must submit a description of the local business associations, industry associations, and any political institutions that support their projects. Letters of support should not be submitted, but a description of each letter of support should be included. The description must include the following: the name of the supporting organization, the date of the letter of support, and the name of the person signing the letter. The applicant should also include a brief description of why the support of each group is valuable to the project. National
ix. Business size (10 points if the application meets the criterion or 0 points if the application does not meet the criterion). Applicants must demonstrate their amount of gross sales for their most recent complete fiscal year. Applicants that have less than $100 million in gross sales will receive 10 points. Applicants that have $100 million or more in gross sales will receive 0 points. For this criterion, applicants should simply state the amount of gross sales for their most recent fiscal year. If an applicant is tentatively selected for funding, the applicant will need to verify the gross sales amount at the time of award. Applicants that do not have a complete fiscal year should so state in their applications. Failure to verify the amount stated in the application will be grounds for withdrawing the award.
x. Number of grants (0 points if the application meets the criterion or −10 points if the application does not meet the criterion). Applicants must indicate whether they have received any previous grants under the VAPG program since its inception in 2001. Applicants who have already received a planning grant will receive −10 points. Applicants who have not received a planning grant will receive 0 points.
xi. Presidential initiative of bio-energy (0 points if application does not meet the criterion or 5 points if application does meet the criterion). Applicants must indicate whether they believe their project has a bio-energy component. Those applications that have at least 51% of project costs dedicated to planning activities for a bio-energy project will receive 5 points. Partial credit will not be given.
Applicants should note that the energy must be produced primarily (
xii. Administrator points (up to 5 points, but not to exceed 10 percent of the total points awarded for the other 11 criteria). The Administrator of the Rural Business-Cooperative Service may award additional points to recognize innovative technologies, insure geographic distribution of grants, or encourage value-added projects in under-served areas. Applicants may submit an explanation of how the technology proposed is innovative and/or specific information verifying that the project is in an under-served area.
2. Criteria for working capital applications are:
i. Business viability (0-25 points). Proposals will be evaluated on the basis of the technical and economic feasibility and sustainability of the venture and the efficiency of operations. The discussion for this criterion must include the agricultural commodity to which value will be added, the process by which value will be added, and a description of the value-added product produced. The application should also include references to independent, third-party information that the applicant has reviewed, a discussion of similar projects, cost and availability of inputs, the type of market where the value-added product will be marketed (
ii. Customer base/increased returns (0-10 points). Proposals that demonstrate strong growth in a market or customer base and greater Value-Added revenue accruing to producer-owners will receive more points than those that demonstrate less growth in markets and realized Value-Added returns. Describe in detail how the customer base for the product being produced will expand because of the value-added venture. Provide documented estimates of this expansion. Describe in detail how a greater portion of the revenue derived from the venture will be returned to the producers that are owners of the venture. Applicants should also reference the financial statements submitted. More points will be awarded to those applications that demonstrate the greatest expansion of the customer base and increased returns to producers.
iii. Commitments and support (0-10 points). Producer commitments will be evaluated on the basis of the number of Independent Producers currently involved as well as how many may potentially be involved, and the nature and level and quality of their contributions. End user commitments will be evaluated on the basis of identified markets, letters of intent or contracts from potential buyers and the amount of output to be purchased. Proposals will be reviewed for evidence that the project enjoys third party support and endorsement, with emphasis placed on financial and in-
iv. Management team/work force (0-10 points). The education and capabilities of project managers and those who will operate the venture must reflect the skills and experience necessary to effect project success. The availability and quality of the labor force needed to operate the venture will also be evaluated. Applicants must provide the information necessary to make these determinations. Proposals that reflect successful track records managing similar projects will receive higher points for this criterion than those that do not reflect successful track records.
v. Work plan/Budget (0-10 points). The work plan will be reviewed to determine whether it provides specific and detailed task descriptions that will accomplish the project's goals and the budget will be reviewed for a detailed breakdown of estimated costs associated with the proposed activities. The budget must present a detailed breakdown of all estimated costs associated with the venture's operations and allocate these costs among the listed tasks. Points may not be awarded unless sufficient detail is provided to determine whether or not funds are being used for qualified purposes. Matching funds as well as grant funds must be accounted for in the budget to receive points. Budgets that include more than 10% of total project costs that are ineligible will result in a determination of ineligible and the application will not be considered for funding. However, if an application with ineligible costs is selected for funding, all ineligible costs must be removed from the project and replaced with eligible activities or the amount of the grant award will be reduced accordingly. Applications without a work plan and detailed budget submitted by the application deadline will be determined to be incomplete and will not be considered for funding. Logical, realistic, and economically efficient work plans and budgets will result in higher scores.
vi. Amount requested (0-1 points). One (1) point will be awarded for grant requests of $75,000 or less. In addressing this criterion, the applicant should simply state the amount requested.
vii. Project cost per owner-producer (0-2 points). This ratio is calculated by dividing the amount of VAPG funds requested by the total number of producers that are owners of the venture. The allocation of points for this criterion shall be as follows: $1-$50,000 equals 2 points, $50,001-$100,000 equals 1 point, and $100,001-$150,000 equals 0 points. The applicant must state the number of owner-producers that are part of the venture. For independent producers, farmer- and rancher-cooperatives, and majority-controlled producer-based business ventures, the applicant must state the number of owners of the venture that are independent producers and are also owners of the venture. An owner cannot be considered an independent producer unless he/she is a producer of the agricultural commodity to which value will be added as part of this project. For agricultural producer groups, the number used should be the number of producers represented who produce the commodity to which value will be added. In cases where family members (including husband and wife) are owners and producers in a venture, each family member shall count as one owner-producer. Applications without enough information to determine the number of producer-owners will be determined to be incomplete and will not be considered for funding. Applicants must be prepared to prove that the numbers and individuals identified meet the requirements specified upon notification of a grant award. Failure to do so shall result in withdrawal of the grant award.
viii. Community and industry support (0-10 points). Applicants must submit a description of the local business associations, industry associations, and any political institutions that support their projects. Letters of support should not be submitted, but a description of each letter of support should be included. The description must include the following: the name of the supporting organization, the date of the letter of support, and the name of the person signing the letter. The applicant should also include a brief description of why the support of each group is valuable to the project. National Congressional support will not be considered for the purpose of evaluating this criterion. Applicants must be able to present a letter of support for each group listed at the time of award. Failure to demonstrate the support claimed in the application shall result in withdrawal of the grant award. Ventures that only demonstrate one type of support will not score as high for this criterion as ventures that demonstrate multiple types of support.
ix. Business size (10 points if the application meets the criterion or 0 points if the application does meet the criterion). Applicants must demonstrate their amount of gross sales for their most recent complete fiscal year. Applicants that have less than $100 million in gross sales will receive 10 points. Applicants that have $100 million or more in gross sales will receive 0 points. For this criterion, applicants should simply state the amount of gross sales for their most recent fiscal year. If an applicant is tentatively selected for funding, the applicant will need to verify the gross sales amount at the time of award. Applicants that do not have a complete fiscal year should state so state in their applications. Failure to verify the amount stated in the application will be grounds for withdrawing the award.
x. Number of grants (0 points if the application meets the criterion or −10 points if the application does not meet the criterion). Applicants must indicate whether they have received any previous grants under the VAPG program since its inception in 2001. Applicants who have already received a working capital grant will receive −10 points. Applicants who have not received a working capital grant will receive 0 points.
xi. Presidential initiative of bio-energy (0 points if application does not meet the criterion or 5 points if application does meet the criterion). Applicants must indicate whether they believe their project has a bio-energy component. Those applications that have at least 51% of project costs dedicated to working capital for a bio-energy project will receive 5 points. Partial credit will not be given. Applicants should note that the energy must be produced primarily (
xii. Administrator points (up to 5 points, but not to exceed 10 percent of the total points awarded for the other 11 criteria). The Administrator of RBS may award additional points to recognize innovative technologies, insure geographic distribution of grants, or encourage value-added projects in under-served areas. Applicants may submit an explanation of how the technology proposed is innovative and/or specific information verifying that the project is in an under-served area.
B. Review and Selection Process: Applicants may choose to submit a draft application to their respective state offices (contact information is listed at the end of this notice). This draft will be reviewed by the state office for completeness only, in accordance with a standardized checklist. Applicants submitting a draft application that is received by April 22, 2005 will have a completed checklist for their draft returned to them by 4 p.m. local time on May 2, 2005. Applicants may submit draft applications after the April 22, 2005 deadline at the discretion of their state office; however, no guarantee is made regarding whether the state office will complete its completeness review of the draft and return the checklist to the applicant in sufficient time for the applicant to use the information to revise its application and submit it on time. Final applications still need to be sent to the Washington, DC (Section IV.F.) address by the application deadline or submitted electronically through the Internet address:
Each final application will be assigned to a particular Rural Development State Office, based on the address of the applicant or the location of the project. This state will be known as the servicing State Office. For example, if an applicant has an address in Kansas, the application will be assigned to the Rural Development State Office in Kansas and the Kansas State Office will be the servicing State Office. Applications will then be initially reviewed by Rural Development field office personnel from the servicing State Office for completeness and eligibility. Ineligible and incomplete applications will not be further evaluated and will not be considered for funding.
All eligible and complete proposals will be evaluated by three reviewers based on criteria one through five described in section V.1. (with criteria one receiving 0-10 points for this portion of the review process). One of these reviewers will be a Rural Development employee not from the servicing State Office and the other two reviewers will be non-Federal persons. All reviewers must meet the following qualifications. Reviewers must have obtained at least a bachelors degree in one or more of the following fields: agri-business, business, economics, finance, or marketing. They must also have a minimum of three years of experience in an agriculture-related field (
Once the scores for criteria one through five have been completed by the three reviewers, the scores will be normalized, using an accepted statistical procedure. This procedure corrects for any reviewer tendencies to score applications “high” or “low.” After the normalization is complete, the three scores will be averaged to obtain an initial ranking. Then, the high and low scores for each application will be analyzed for statistically significant deviation. For those applications with significant deviation, the ranking of that application with respect to all other scored applications will be considered. In cases where the ranking indicates that the application could either move out of funding range or into funding range, two supplemental reviews will be conducted by Rural Development employees not from the state where the application was assigned. These reviews will be normalized and compared with the initial three scores. The high and low scores from all five reviews will then be discarded. Each application will then be assigned a score that is the normalized average of three scores based on criteria one through five. The score will be converted to a value that can be added to the servicing State Office score (see below).
Concurrent to the evaluation based on criteria one through five, the application will also receive one score from the Rural Development servicing State Office based on criteria one and six through eleven (with criteria one receiving 0-15 points for this portion of the review process). The State Office may enlist the support of qualified technical experts, approved by the State Director, to assist the State Office scoring process. The score will be added to the average normalized converted score obtained from criteria one through five.
Finally, the Administrator of RBS will award any Administrator points based on criteria twelve. These points will be added to the cumulative score for criteria one through eleven. A final ranking will be obtained based solely on the scores received for criteria one through twelve. Applications will be funded in rank order until appropriated funds are expended. After the award selections are made, all applicants will be notified of the status of their applications by mail. No information regarding the status of an application will be released until after the award selections are made. Awardees must meet all statutory and regulatory program requirements in order to receive their award. Applicants for working capital grants must submit complete, independent third-party feasibility studies and business plans before the grant award can be finalized. In the event that an awardee cannot meet the requirements, the award will be withdrawn.
Successful applicants will receive a notification of tentative selection for funding from Rural Development. Applicants must comply with all applicable statutes, regulations, and this notice before the grant award will receive final approval.
Unsuccessful applicants will receive notification, including mediation procedures and appeal rights, by mail.
7 CFR parts 3015, 3019, and 4284.
To view these regulations, please see the following Internet address:
The following additional requirements apply to grantees selected for this program:
• Grant Agreement.
• Letter of Conditions.
• Form RD 1940-1, “Request for Obligation of Funds.”
• Form RD 1942-46, “Letter of Intent to Meet Conditions.”
• Form AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions.”
• Form AD-1048, “Certification Regarding Debarment, Suspension,
• Form AD-1049, “Certification Regarding a Drug-Free Workplace Requirements (Grants).”
• Form RD 400-1, “Equal Opportunity Agreement.”
• Form RD 400-4, “Assurance Agreement.”
• RD Instruction 1940-Q, Exhibit A-1, “Certification for Contracts, Grants and Loans.”
Additional information on these requirements can be found on the RBS Web site at the following Internet address:
Reporting Requirements: You must provide Rural Development with a hard copy original or an electronic copy that includes all required signatures of the following reports. The reports should be submitted to the Agency contact listed for your assigned state in Section VII. Failure to submit satisfactory reports on time may result in suspension or termination of your grant. RBS is currently developing an online reporting system. Once the system is developed, you may be required to submit some or all of your reports online instead of in hard copy.
1. Form SF-269 or SF-269A. A “Financial Status Report,” listing expenditures according to agreed upon budget categories, on a semi-annual basis. Reporting periods end each March 31 and September 30. Reports are due 30 days after the reporting period ends.
2. Semi-annual performance reports that compare accomplishments to the objectives stated in the proposal. Identify all tasks completed to date and provide documentation supporting the reported results. If the original schedule provided in the work plan is not being met, the report should discuss the problems or delays that may affect completion of the project. Objectives for the next reporting period should be listed. Compliance with any special condition on the use of award funds should be discussed. Reports are due as provided in paragraph (1) of this section. The supporting documentation for completed tasks include, but are not limited to, feasibility studies, marketing plans, business plans, articles of incorporation and bylaws and an accounting of how working capital funds were spent. Planning grant projects must also report the estimated increase in revenue, increase in customer base, number of jobs created, and any other relevant economic indicators generated by continuing the project into its operational phase. Working capital grants must report the increase in revenue, increase in customer base, number of jobs created, and any other relevant economic indicators generated by the project during the grant period. Projects with significant energy components must also report expected or actual capacity (
3. Final project performance reports, inclusive of supporting documentation. The final performance report is due within 90 days of the completion of the project.
For general questions about this announcement and for program technical assistance, please contact the Representative listed for the state in which the applicant is based. If you are unable to contact the Representative for your state, please contact a Representative from a nearby state or you may contact the RBS National Office at Mail Stop 3250, 1400 Independence Avenue SW., Washington, DC 20250-3250, Telephone: (202) 720-7558, e-mail:
Mary Ann Clayton, USDA Rural Development, Sterling Center, Ste. 601, 4121 Carmichael Rd., Montgomery, AL 36106-3683, (334) 279-3624,
Dean Stewart, USDA Rural Development, 800 West Evergreen, Ste. 201, Palmer, AK 99645, (907) 761-7722,
Hanna Schwartz, USDA Rural Development, 2585 N. Grand Ave., Ste. 5, Nogales, AZ 85621, (520) 281-0221, ext. 101,
Tim Smith, USDA Rural Development, 700 West Capitol Ave., Rm. 3416, Little Rock, AR 72201-3225, (501) 301-3280,
Karen Spatz, USDA Rural Development, 430 G St., Agency 4169, Davis, CA 95616, (530) 792-5829,
Dolores Sanchez-Maes, USDA Rural Development, 655 Parfet St., Rm. E-100, Lakewood, CO 80215, (720) 544-2927,
Richard J. Burke, USDA Rural Development, 451 West St., Ste. 2, Amherst, MA 01002, (413) 253-4319,
Signe Hippert, USDA Rural Development, 4607 S. DuPont Hwy., Camden, DE 19934, (302) 697-4327,
Joe Mueller, USDA Rural Development, 4440 NW. 25th Pl., Gainesville, FL 32606, (352) 338-3482,
J. Craig Scroggs, USDA Rural Development, 333 Phillips Dr., McDonough, GA 30253, (678) 583-0866,
Timothy O'Connell, USDA Rural Development, Federal Building, Rm. 311, 154 Waianuenue Ave., Hilo, HI 96720, (808) 933-8313,
Rhonda Merritt, USDA Rural Development, 9173 W. Barnes, Ste. A1, Boise, ID 83709, (208) 378-5623,
Patrick Lydic, USDA Rural Development, 2118 West Park Ct., Ste. A, Champaign, IL 61821, (217) 403-6211,
Jerry Hay, USDA Rural Development, 2411 N. 1250 W., Deputy, IN 47230, (812) 873-1100,
Jeff Jobe, USDA Rural Development, 210 Walnut St., Rm. 873, Des Moines, IA 50309, (515) 284-5192,
F. Martin Fee, USDA Rural Development, 1303 SW First American Pl., Ste. 100, Topeka, KS 66604-4040, (785) 271-2744,
Jeff Jones, USDA Rural Development, 771 Corporate Dr., Ste. 200, Lexington, KY 40503, (859) 224-7435,
Judy Meche, USDA Rural Development, 3727 Government St.,
Michael Grondin, USDA Rural Development, P.O. Box 405, Bangor, ME 04402-0405, (207) 990-9168,
Signe Hippert, USDA Rural Development, 4607 S. DuPont Hwy., Camden, DE 19934, (302) 697-4327,
Richard J. Burke, USDA Rural Development, 451 West St., Ste. 2, Amherst, MA 01002, (413) 253-4319,
Bobbie Morrison, USDA Rural Development, 3001 Coolidge Rd., Ste. 200, East Lansing, MI 48823, (517) 324-5222,
Robyn J. Holdorf, USDA Rural Development, 375 Jackson St., Ste. 410, St. Paul, MN 55101-1853, (651) 602-7812,
Charlie Joiner, USDA Rural Development, Federal Building, Ste. 831, 100 W Capitol St., Jackson, MS 39269, (601) 965-5457,
Nathan Chitwood, USDA Rural Development, 601 Business Loop 70 W, Parkade Center, Ste. 235, Columbia, MO 65203, (573) 876-9320,
William W. Barr, USDA Rural Development, 900 Technology Blvd., Ste. B, P.O. Box 850, Bozeman, MT 59771, (406) 585-2545,
Deb Yocum, USDA Rural Development, 201 N 25th St., Beatrice, NE 68310, (402) 223-3125, ext. 4,
Dan Johnson, USDA Rural Development, 555 W Silver St., Ste. 101, Elko, NV 89801, (775) 738-8468, ext. 112,
Lyn Millhiser, USDA Rural Development, Third Floor City Center, 89 Main St., Montpelier, VT 05602, (802) 828-6069,
Michael P. Kelsey, USDA Rural Development, 5th Floor North Tower, Ste. 500, 8000 Midlantic Dr., Mount Laurel, NJ 08054, (856) 787-7751,
Eric Vigil, USDA Rural Development, 6200 Jefferson St. NE, Rm. 255, Albuquerque, NM 87109, (505) 761-4952,
Scott Collins, USDA Rural Development, The Galleries of Syracuse, 441 South Salina St., Ste. 357, Syracuse, NY 13202, (315) 477-6409,
Bruce Pleasant, USDA Rural Development, 4405 Bland Rd., Ste. 260, Raleigh, NC 27609, (919) 873-2031,
Dennis Rodin, USDA Rural Development, Federal Building, Rm. 211, 220 E Rosser Ave., Bismarck, ND 58502-1737, (701) 530-2065,
Deborah E. Rausch, USDA Rural Development, Federal Building, Rm. 507, 200 North High St., Columbus, OH 43215, (614) 255-2425,
Mike Schrammel, USDA Rural Development, 100 USDA, Ste. 108, Stillwater, OK 74074-2654, (405) 742-1061,
Dan Streng, USDA Rural Development, 101 SW Main St., Ste. 1401, Portland, OR 97204-3222, (503) 414-3366,
Gerald Ely, USDA Rural Development, One Hollowcrest Complex, Tunkhannock, PA 18657, (570) 836-5111, ext. 119,
Luis Garcia, USDA Rural Development, Muñoz Rivera, 654 Plaza Bldg., Ste. 601, San Juan, Puerto Rico 00918, (787) 766-5095, ext. 239,
Richard J. Burke, USDA Rural Development, 451 West St., Ste. 2, Amherst, MA 01002, (413) 253-4319,
Debbie Turbeville, USDA Rural Development, Strom Thurmond Federal Building, 1835 Assembly St., Ste. 1007, Columbia, SC 29201, (843) 354-9613, ext. 118,
Gary L. Korzan, USDA Rural Development, Federal Building, Rm. 210, 200 4th St. SW, Huron, SD 57350, (605) 352-1142,
Dan Beasley, USDA Rural Development, 3322 West End Ave., Ste. 300, Nashville, TN 37203, (615) 783-1341,
Billy Curb, USDA Rural Development, Federal Building, 101 South Main, Ste. 102, Temple, TX 76501, (254) 742-9775,
Richard Carrig, USDA Rural Development, Wallace F. Bennett Federal Building, 125 South State St., Rm. 4311, Salt Lake City, UT 84138, (801) 524-4328,
Lyn Millhiser, USDA Rural Development, Third Floor City Center, 89 Main St., Montpelier, VT 05602, (802) 828-6069,
Joe Mueller, USDA Rural Development, 4440 NW. 25th Pl., Gainesville, FL 32606, (352) 338-3482,
Laurette Tucker, USDA Rural Development, Culpeper Building, Ste. 238, 1606 Santa Rosa Rd., Richmond, VA 23229, (804) 287-1594,
John Brugger, USDA Rural Development, 8815 E. Mission, Ste. B, Spokane Valley, WA 99212-2445, (509) 924-7350, ext. 114,
John M. Comerci, USDA Rural Development, 481 Ragland Rd., Beckley,
Barbara Brewster, USDA Rural Development, 4949 Kirschling Ct., Stevens Point, WI 54481, (715) 345-7610,
Janice Stroud, USDA Rural Development, 100 East B St., Rm. 1005, Casper, WY 82601, (307) 233-6710,
It is suggested that applicants visit the Agricultural Marketing Resource Center (AgMRC) Web site (
March 9, 2005, 1 p.m.-3 p.m.
Cohen Building, Room 3321, 330 Independence Ave., SW., Washington, DC 20237.
The members of the Broadcasting Board of Governors (BBG) will meet in closed session to review and discuss a number of issues relating to U.S. Government-funded non-military international broadcasting. They will address internal procedural, budgetary, and personnel issues, as well as sensitive foreign policy issues relating to potential options in the U.S. international broadcasting field. This meeting is closed because if open it likely would either disclose matters that would be properly classified to be kept secret in the interest of foreign policy under the appropriate executive order (5 U.S.C. 552b.(c)(1)) or would disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action. (5 U.S.C. 552b.(c)(9)(B)). In addition, part of the discussion will relate solely to the internal personnel and organizational issues of the BBG or the International Broadcasting Bureau. (5 U.S.C. 552b.(c)(2) and (6)).
Persons interested in obtaining more information should contact either Brenda Hardnett or Carol Booker at (202) 203-4545.
Pursuant to the authority granted in the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), and the Foreign-Trade Zones Board Regulations (15 CFR part 400), the Foreign-Trade Zones Board has adopted the following order:
Attest:
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the City of Conroe, Texas, which has an application pending before the Board for FTZ status, requesting special-purpose subzone status for the warehousing facility (mining drill bits) of WLS Drilling Products, Inc., (WLS Drilling) in Montgomery, Texas. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on February 25, 2005.
The WLS Drilling facility is located at 18904 Freeport Drive in Montgomery, Texas. The facility (8 employees; 7,000 sq. ft. warehouse with adjacent 2,500 sq. ft. office on 5.2 acres) warehouses and distributes finished rotary rock drill bits used in the mining, construction, and oil and gas industries. WLS Drilling's imported drill bits currently enter the U.S. duty free. However, the application states that the imported products may become subject to duties in the future. WLS Drilling also indicates that, although no manufacturing authority is currently requested, there is the potential for manufacturing at the site in the future. Finally, the application states that the company will benefit from an FTZ-related exemption from local property tax.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1. Submissions Via Express/Package Delivery Services: Foreign-Trade-Zones Board, U.S. Department of Commerce, Franklin Court Building—Suite 4100W, 1099 14th St. NW., Washington, DC 20005; or
2. Submissions via the U.S. Postal Service: Foreign-Trade-Zones Board, U.S. Department of Commerce, FCB—Suite 4100W, 1401 Constitution Ave. NW., Washington, DC 20230.
The closing period for their receipt is May 6, 2005. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to May 23, 2005.
A copy of the application and accompanying exhibits will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at address Number 1 listed above and at the Houston U.S. Export Assistance Center, 15600 John F. Kennedy Blvd., Suite 530, Houston, TX 77032.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Import Administration, International Trade Administration, U.S. Department of Commerce.
March 7, 2005.
Crystal Crittenden or Magd Zalok, at (202) 482-0989 or (202) 482-4162, respectively; Import Administration, AD/CVD Operations, Office 4, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On August 24, 2004, the Department of Commerce (the Department) initiated an administrative review of the antidumping duty order on canned pineapple fruit from Thailand.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), the Department shall make a preliminary determination in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order. The Act further provides, however, that the Department may extend that 245-day period to 365 days if it determines it is not practicable to complete the review within the foregoing time period. The preliminary results of this antidumping duty administrative review of canned pineapple fruit from Thailand are currently scheduled to be completed on April 2, 2005. However, the Department finds that it is not practicable to complete the preliminary results in this administrative review within this time limit because additional time is needed to fully address issues relating to the home market viability, as well as to conduct mandatory verifications of the questionnaire responses and supplemental questionnaire responses.
Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time limit for completion of the preliminary results of this review until August 1, 2005, which is the next business day after 365 days from the last day of the anniversary month of the date of publication of the order. The deadline for the final results of this administrative review continues to be 120 days after the publication of the preliminary results.
This notice is issued and published in accordance with section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain forged stainless steel flanges (stainless steel flanges) from India manufactured by Echjay Forgings Ltd. (Echjay) and Viraj Forgings Ltd. (Viraj). The period of review (POR) covers February 1, 2003, through January 31, 2004. We preliminarily determine that neither Echjay nor Viraj sold subject merchandise at less than normal value (NV) in the United States during the POR. We have also preliminarily determined to revoke the order with respect to subject merchandise produced and exported by Viraj.
We invite interested parties to comment on these preliminary results. Parties who submit argument in these proceedings are requested to submit with the argument (1) a statement of the issues and (2) a brief summary of the argument.
March 7, 2005.
Fred Baker, Mike Heaney or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, telephone : (202) 482-2924, (202) 482-4475, or (202) 482-0649, respectively.
On February 9, 1994, the Department published the antidumping duty order on stainless steel flanges from India.
On October 29, 2004, we extended the time limit for the preliminary results of this administrative review to February 28, 2005.
The products covered by this order are certain forged stainless steel flanges, both finished and not finished, generally manufactured to specification ASTM A-182, and made in alloys such as 304, 304L, 316, and 316L. The scope includes five general types of flanges. They are weld-neck, used for butt-weld line connection; threaded, used for threaded line connections; slip-on and lap joint, used with stub-ends/butt-weld line connections; socket weld, used to fit pipe into a machined recession; and blind, used to seal off a line. The sizes of the flanges within the scope range generally from one to six inches; however, all sizes of the above-described merchandise are included in the scope. Specifically excluded from the scope of this order are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A-351. The flanges subject to this order are currently classifiable under subheadings 7307.21.1000 and 7307.21.5000 of the Harmonized Tariff Schedule (HTS). Although the HTS subheading is provided for convenience and customs purposes, the written description of the merchandise under review is dispositive of whether or not the merchandise is covered by the scope of the order.
As provided in section 782(i)(3) of the Tariff Act of 1930, as amended (the Tariff Act), we verified information provided by Viraj from January 17, 2005, through January 21, 2005, using standard verification procedures, the examination of relevant sales, cost, and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public versions of the verification reports, on file in the Department's Central Records Unit (CRU) located in room B-099 in the main Department of Commerce building.
On February 27, 2004, Viraj requested revocation of the order covering stainless steel flanges from India as it pertains to its sales. According to section 751(d)(1) of the Tariff Act, the Department “may revoke, in whole or in part” an antidumping duty order upon completion of a review. Although Congress has not specified the procedures the Department must follow in revoking an order, the Department has developed a procedure for revocation set forth at 19 CFR 351.222. Pursuant to subsection 351.222(b), the Department may revoke an antidumping duty order, in part, if it concludes: (i) An exporter or producer has sold the merchandise at not less than NV for a period of at least three consecutive years, (ii) the exporter or producer has agreed in writing to its immediate reinstatement in the order if the Secretary concludes the exporter or producer, subsequent to the revocation, sold the subject merchandise at less than NV, and (iii) the continued application of the antidumping duty order is no longer necessary to offset dumping.
A request for revocation must address these three elements. The company requesting the revocation must do so in writing and submit the following statements with the request: (1) The company's certification that it sold the subject merchandise at not less than NV during the current review period and that, in the future, it will not sell at less than NV; (2) the company's certification that during each of the consecutive years forming the basis of the request, it sold the subject merchandise to the United States in commercial quantities; and (3) the agreement to reinstatement in the order if the Department concludes the company, subsequent to the revocation, sold the subject merchandise at less than NV.
We preliminarily find that the request from Viraj meets all the criteria of 19 CFR 351.222(e)(1). With regard to the criteria of subsection 351.222(b)(2), our preliminary margin calculations indicate that Viraj did not sell stainless steel flanges in the United States at less than NV during the instant POR.
Based on our examination of the sales data submitted by Viraj, we preliminarily determine Viraj sold the subject merchandise in the United States in commercial quantities in each of the consecutive years cited by Viraj to support its request for revocation.
Therefore, we preliminarily determine that Viraj qualifies for revocation of the order on certain forged stainless steel flanges from India pursuant to 19 CFR 351.222(b)(2), and that the order with respect to Viraj Forgings, Ltd. should be revoked.
If these preliminary findings are followed in our final results of review, we will revoke the order in part with respect to certain forged stainless steel flanges from India produced and exported by Viraj Forgings, Ltd. In accordance with 19 CFR 351.222(f)(3), we will terminate the suspension of liquidation for certain forged stainless steel flanges from India produced and exported by Viraj Forgings, Ltd. that were entered, or withdrawn from warehouse for consumption, on or after February 1, 2004, and will instruct U.S. Customs and Border Protection (Customs) to refund any cash deposits for such entries.
To determine whether sales of subject merchandise to the United States by Echjay and Viraj were made at less than NV, we compared the export price or constructed export price, as appropriate, to the NV, as described in the “Export Price and Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Tariff Act, we calculated monthly weighted-average prices for NV and compared these to the prices of individual export price (EP) or constructed export price (CEP) transactions.
In accordance with section 771(16) of the Tariff Act, we considered all products described by the Scope of the Antidumping Duty Order section, above, which were produced and sold by Echjay and Viraj in the home market, to be foreign like products for purposes of determining appropriate comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire. Where there were no sales of identical or similar merchandise in the home market suitable for comparing to U.S. sales, we compared these sales to constructed value (CV), pursuant to section 773(a)(4) of the Tariff Act.
During the course of this review both respondents requested that the Department modify the model match characteristics used in comparing U.S. and home market sales. Echjay asked that a new characteristic be added to capture the flanges' thickness, while Viraj proposed a new variable be added to differentiate between custom-ordered and standard flanges. However, the Department believes the existing model match methodology captures those physical characteristics which impact directly on the cost and price of these products. Viraj's custom-made products vary only minutely from its standard products, while Echjay's request for a separate thickness category is unnecessary because the differing wall thicknesses are necessarily captured by basing our comparisons on weight. Accordingly, we have not altered our model match criteria for this review.
In accordance with section 772(a) of the Tariff Act, EP is defined as the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States, or to an unaffiliated purchaser for exportation to the United States. In accordance with section 772(b) of the Tariff Act, CEP is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections (c) and (d).
For sales of both respondents in the United States, we used EP in accordance with section 772(a) of the Tariff Act in those instances where the merchandise was sold directly to the first unaffiliated purchaser prior to importation, and CEP was not otherwise warranted based on the facts of record. For both Echjay and Viraj, we also used CEP in accordance with section 772(b) for those sales made through their respective U.S. affiliates, Echjay USA, Inc. and Viraj USA, Inc.
We calculated EP and CEP, as appropriate, based on the prices charged to the first unaffiliated customer in the United States. We used the date of invoice as the date of sale. We based EP on the packed C&F, CIF duty paid, FOB, or ex-dock duty paid prices to the first unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Tariff Act, including: foreign inland freight, foreign brokerage and handling, ocean freight, and marine insurance.
For CEP we also deducted those selling expenses incurred in selling the subject merchandise in the United States, including direct selling expenses (
Section 772(c)(1)(B) of the Tariff Act provides that EP or CEP shall be increased by “the amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States.” The Department determines that an adjustment to U.S. price for claimed duty drawback is appropriate when a
Echjay claimed it received Duty Entitlement Pass Book (DEPB) certificates from the Indian government which it books in an “Export Incentives Ledger”
Viraj claimed it received DEPB certificates to offset the Indian customs duties otherwise payable on imported raw materials.
The Department finds that Echjay and Viraj have not provided substantial evidence on the record to meet the requirement of the first prong of the two-prong test, to wit, to establish the necessary link between the import duty and the reported rebate for duty drawback. While both respondents indicated they received duty drawback in the form of certificates issued by the Government of India, they have failed to establish the necessary direct link between the import duty paid, and the rebate given by the Government of India. Echjay's response makes clear that much of the DEPB certificate program has no bearing on home market import duties of any kind. Moreover, Viraj acknowledges it did not use all its DEPB certificates to claim a rebate on the inputs used to manufacture subject stainless steel flanges but, rather, transferred some of them to VAL to import scrap and alloys for the manufacture of raw steel. Finally, we note the value of the DEPB certificates is calculated based upon the FOB prices of the finished goods, as exported. All these factors demonstrate clearly that there is no direct link between these certificates, and the companies' own imports of inputs, and the eventual production of finished goods for export. Therefore, the Department is denying a duty drawback credit for the preliminary results of this review.
In order to determine whether there is sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
We based our comparisons of the volume of U.S. sales to the volume of home market and third country sales on reported stainless steel flange weight, rather than on number of pieces. The record demonstrates that there can be large differences between the weight (and corresponding cost and price) of stainless steel flanges based on relative sizes, so comparisons of aggregate data would be distorted for these products if volume comparisons were based on the number of pieces.
In the most-recently completed segment of this proceeding, the Department disregarded certain Viraj sales made in the home market at less than its cost of production.
In accordance with section 773(b)(3) of the Tariff Act we calculated cost of production (COP) based on the sum of Viraj's cost of materials and fabrication of the foreign like product, adding amounts for home market selling, general and administrative expenses (SG&A), interest expenses and packing costs. The Department relied on the COP data submitted by Viraj in its original and supplemental cost questionnaire responses for these calculations.
We compared the weighted-average COP for Viraj's home market sales of the foreign like product as required under section 773(b) of the Tariff Act in order to determine whether these sales were made at prices below the COP. In determining whether to disregard home market sales at prices less than COP, we examined whether: (i) Such sales were made in substantial quantities within an extended period of time, and (ii) at prices which permitted the recovery of all costs within a reasonable period of time, in accordance with sections 773(b)(1)(A) and (B) of the Tariff Act. We compared COP to home market prices,
Pursuant to section 773(b)(2)(C) of the Tariff Act, when less than 20 percent of a respondent's sales of a given product were at prices less than COP we did not disregard any such sales because they were not made in substantial quantities within an extended period of time. When 20 percent or more of a respondent's sales of a given product during the POR were at prices less than COP we disregarded the below-cost sales because they were made in substantial quantities within an extended period of time, pursuant to section 773(b)(2)(D) of the Tariff Act. See Viraj Preliminary Analysis Memorandum, dated February 28, 2005.
For Echjay and Viraj, we compared U.S. sales with contemporaneous sales of the foreign like product in India. As noted, we considered stainless steel flanges identical based on the following five criteria: grade, type, size, pressure rating, and finish. We used a 20 percent difference-in-merchandise (difmer) cost deviation cap as the maximum difference in cost allowable for similar merchandise, which we calculated as the absolute value of the difference between the U.S. and comparison market variable costs of manufacturing divided by the total cost of manufacturing of the U.S. product. For both respondents, we also made adjustments for differences in packing costs between the two markets and for movement expenses in accordance with sections 773(a)(6)(A) and (B) of the Tariff Act. Finally, we adjusted for differences in the circumstances of sale (COS) pursuant to section 773(a)(6)(C)(iii) of the Tariff Act and 19 CFR 351.410. For comparisons to EP, we made COS adjustments by deducting home market direct selling expenses and adding U.S. direct selling expenses. Finally, for Echjay, we also made adjustments in accordance with 19 CFR 351.410(e) for indirect selling expenses incurred in the home market or United States where commissions were granted on sales in one market but not in the other (the “commission offset”).
In accordance with section 773(a)(4) of the Tariff Act, we based NV on CV if we were unable to find a contemporaneous comparison market match for the U.S. sale. We calculated CV based on the cost of materials and fabrication employed in producing the subject merchandise, SG&A, and profit. In accordance with 772(e)(2)(A) of the Tariff Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the foreign country. For selling expenses, we used the weighted-average comparison market selling expenses. Where appropriate, we made COS adjustments to CV in accordance with section 773(a)(8) of the Tariff Act and 19 CFR 351.410. For comparisons to EP, we made COS adjustments by deducting home market direct selling expenses and adding U.S. direct selling expenses. For Echjay, we also made adjustments for home market indirect selling expenses to offset commissions in EP comparisons.
In accordance with section 773(a)(1)(B)(i) of the Tariff Act, to the extent practicable, we determine NV based on sales in the home market at the same level of trade (LOT) as EP or the CEP. The NV LOT is that of the starting-price sales in the home market or, when NV is based on CV, that of the sales from which we derive SG&A expenses and profit. For CEP it is the level of the constructed sale from the exporter to an affiliated importer after the deductions required under section 772(d) of the Tariff Act.
To determine whether NV sales are at a different LOT than EP or CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make a LOT adjustment under section 773(a)(7)(A) of the Tariff Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Tariff Act (the CEP-offset provision).
In implementing these principles in this review, we obtained information from Echjay and Viraj about the marketing stages involved in their U.S. and home market sales, including a description of the selling activities in the respective markets. In identifying levels of trade for CEP we considered only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Tariff Act.
Echjay and Viraj both reported one channel of distribution and one LOT in the home market contending that home market sales to distributors and wholesalers were made at the same level of trade, and involved the same selling activities.
Echjay and Viraj further contended they provided substantially the same level of customer support on their U.S. EP sales as they provided on their home market sales to distributors or wholesalers. For both companies this included customer contact, order processing, arranging customer pick-up at the mill, invoicing, and processing payments. The Department has determined that we will find sales to be at the same LOT when the selling functions performed for each customer class are sufficiently similar.
As to CEP sales, in its Section A Response Echjay indicated its U.S. subsidiary, Echjay USA, Inc., performed no selling activities or services beyond notifying the final customer of the merchandise's arrival at the U.S. port; customers were responsible for arranging shipment and Customs clearance at their own expense.
The record evidence supports a finding that in both markets and in all channels of distribution, Echjay and Viraj perform essentially the same level of services. These include order processing, packing, shipping and invoicing of sales, and processing of payments. Based on our analysis of the selling functions performed on EP and CEP sales in the United States, and sales in the home market, we determine that the EP and CEP and the starting price of home market sales represent the same stage in the marketing process, and are thus at the same LOT. Accordingly, we preliminarily find that no level of trade adjustment or CEP offset is appropriate for either Echjay or Viraj.
We made currency conversions into U.S. dollars in accordance with section 773(a) of the Tariff Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.
As a result of our review we preliminarily find the following weighted-average dumping margins exist for the period February 1, 2003, through January 31, 2004:
The Department will disclose calculations performed within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication.
Interested parties may submit case briefs or written comments no later than 30 days after the date of publication of these preliminary results of review. Rebuttal briefs and rebuttals to written comments, limited to issues raised in the case briefs and comments, may be filed no later than 35 days after the date of publication of this notice. Parties who submit argument in these proceedings are requested to submit with the argument 1) a statement of the issue, 2) a brief summary of the argument, and (3) a table of authorities. Further, we would appreciate it if parties submitting written comments would provide the Department with an additional copy of the public version of any such comments on diskette. The Department will issue final results of this administrative review, including the results of our analysis of the issues raised in any such written comments or at a hearing, within 120 days of publication of these preliminary results.
Upon issuance of the final results of this review, the Department shall determine, and the U.S. Customs and Border Protection (Customs) shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific assessment rates based on the total amount of antidumping duties calculated for the examined sales made during the POR divided by the total entered value, or quantity (in kilograms), as appropriate, of the examined sales. Upon completion of this review, where the assessment rate is above de minimis, we shall instruct Customs to assess duties on all entries of subject merchandise by that importer.
The following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of flanges from India entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Tariff Act: (1) the cash deposit rates for the reviewed companies will be the rates established in the final results of administrative review; if the rate for a particular company is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on Low Enriched Uranium (LEU) from France in response to requests by USEC Inc. and the United States Enrichment Corporation (collectively, petitioners) and by Eurodif, S.A.(Eurodif), Compagnie Générale Des Matières Nucléaires (COGEMA) and COGEMA, Inc. (collectively, Eurodif/COGEMA or the respondent). This review covers sales of subject merchandise to the United States during the period of February 1, 2003, through January 31, 2004.
We have preliminarily determined that U.S. sales have been made below normal value (NV). If these preliminary results are adopted in our final results, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties based on the difference between the constructed export price (CEP) and the NV. Interested parties are invited to comment on these preliminary results.
March 7, 2005.
Myrna Lobo or Elfi Blum-Page, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2371 or (202) 482-0197, respectively.
On February 13, 2002, the Department published the antidumping duty order on LEU from France in the
The Department issued its original questionnaire, sections A through D, on April 14, 2004, and received timely responses. On October 28, 2004, the Department extended the deadline for the preliminary results of this antidumping duty administrative review until February 28, 2005.
On October 29, 2004, pursuant to an allegation filed by petitioners, the Department initiated an investigation to determine whether Eurodif/COGEMA's purchases of electricity from Électricité de France (EdF), an affiliated supplier, during the period of review (POR), were made at prices below the cost of production (COP). Consequently, on November 4, 2004, and on December 23, 2004, the Department issued questionnaires on the COP of electricity and received timely, although incomplete, responses.
On December 14, 2004, the petitioners filed comments stating that the respondent's costs for research and development (R&D) were under-reported. The Department is in the process of reviewing the information and argument submitted by the petitioners.
In response to comments filed by petitioners, on February 10, 2005, Eurodif/COGEMA filed additional information. On the same day, the Department reiterated its request for a reconciliation of the costs of electricity from EdF's Summary Annual and Unbundled 2003 Financial Statements to the information in the record which was used to calculate the per-unit cost of electricity.
This review covers the period February 1, 2003, through January 31, 2004.
The product covered by this order is all low enriched uranium. LEU is enriched uranium hexafluoride (UF
Certain merchandise is outside the scope of this order. Specifically, this order does not cover enriched uranium hexafluoride with a U
Also excluded from this order is LEU owned by a foreign utility end-user and imported into the United States by or for such end-user solely for purposes of conversion by a U.S. fabricator into uranium dioxide (UO
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2844.20.0020. Subject merchandise may also enter under 2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
In accordance with section 773(a)(1)(B) and (C) of the Tariff Act of 1930, as amended (the Act), to determine whether there was a sufficient volume of sales in the home market and/or in third country markets to serve as a viable basis for calculating NV, we compared Eurodif/COGEMA's volume of home market sales and third country sales of the foreign like product to the volume of U.S. sales of the subject merchandise. Eurodif/COGEMA did not have any sales in the home market during the POR. Pursuant to section 773(a)(1)(B) and (C) of the Act and section 351.404 (b) of the Department's regulations, because Eurodif/COGEMA's aggregate volume of sales of the foreign like product both in Japan and Sweden was greater than five percent of the aggregate volume of U.S. sales of the subject merchandise, we determined that Japan and Sweden are viable markets. However, due to the difficulties involved in calculating a difference-in-merchandise adjustment for non-identical products, the Department determined to use constructed value (CV) as the basis of NV in this review.
To determine whether sales of LEU from France were made in the United States at less-than-fair value (LTFV), we compared the CEP to CV, as described in the
We note that during the POR, the respondent sold LEU in the United States pursuant to contracts in which the respondent undertook to manufacture and deliver LEU for a cash payment covering only the value of the enrichment component; for the natural uranium feedstock component, the respondent received an amount of natural uranium equivalent to the amount used to produce the LEU shipped (so-called separative work unit (SWU)
In accordance with section 772(b) of the Act, CEP is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. During the POR, Eurodif/COGEMA made sales to the United States through its U.S. affiliate, COGEMA Inc., which then resold the merchandise to unaffiliated customers. Therefore, Eurodif/COGEMA classified all of its export sales of LEU as CEP sales.
As stated in section 351.401(i) of the Department's regulations, the Department will use the respondent's invoice date as the date of sale unless another date better reflects the date upon which the exporter or producer establishes the material terms of sale. In this review, we find that the material terms of sale are set in the contract between COGEMA Inc. and the U.S. customer. Therefore, as in the prior review, we have used the contract date as the date of sale.
The Department calculated CEP for Eurodif/COGEMA based on packed prices to the first unaffiliated customer in the United States. For all sales, which involved payments on a SWU basis, we translated the prices to an LEU basis, as indicated above, by adding a value for the uranium feedstock used in the production of the LEU. This value was derived from the respondent's reported entered value of feed, which was based on publicly available information used for customs entry purposes. We made deductions from the starting price, net of discounts, for movement expenses (foreign and U.S. movement, shipment of sample assays, movement of customer feed from North America to France, marine insurance, merchandise processing and U.S. harbor maintenance fees, and brokerage) in accordance with section 772(c)(2) of the Act and section 351.401(e) of the Department's regulations. In addition, in accordance with section 772(d)(1) of the Act, we also deducted credit expenses and indirect selling expenses, including inventory carrying costs, incurred in the United States and France and associated with economic activities in the United States.
Furthermore, in accordance with sections 772(d)(3) and 772(f) of the Act, we made a deduction for CEP profit. The CEP profit rate is normally calculated on the basis of total revenue and total expenses related to sales in the comparison market and the U.S. market. In this case, we based NV on CV; therefore, there was no home market profit from which to derive CEP profit. Consequently, we based CEP profit on the total expenses and total revenue related to Eurodif's U.S. and third-country sales of LEU.
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison market sales, NV may be based on CV. Because of the difficulties involved in calculating a difference-in-merchandise adjustment for non-identical products (
Section 773(e) of the Act provides that CV shall be based on the sum of the costs of materials and fabrication of the foreign like product, plus amounts for selling, general, and administrative expenses (SG&A), profit, and U.S. packing costs. In accordance with section 773(e)(2)(B)(iii) of the Act, we based general and administrative (G&A) expenses on amounts derived from Eurodif's financial statements. In our calculation of the interest expense, we based financial expenses on the financial statements of COGEMA's parent company, AREVA, which represents the highest level of consolidation for Eurodif. For selling expenses, we used information on indirect selling expenses in third countries, including Japan, provided in the questionnaire response. Where appropriate, we made circumstance of sale (COS) adjustments to CV, in accordance with section 773(a)(8) of the Act and section 351.410 of the Department's regulations.
We calculated profit in accordance with section 773(e)(2)(B)(iii) of the Act and the Statement of Administrative Action regarding the Uruguay Round Agreements Act, H.R. Doc. 103-316, 103d Cong., 2d Sess. (SAA) 841. A positive amount for profit must be included in the CV. There were no home market sales during the POR, and, based on our calculations, there is no positive amount of profit with respect to third country sales. Thus, we find that it is appropriate to use a profit rate based on AREVA's front end division.
Electricity is considered a major input into the production of LEU. Eurodif obtained electricity from its affiliated supplier, EdF. On June 9, 2004, the petitioners alleged that Eurodif purchased electricity from EdF at prices less than the affiliated suppliers' COP during the POR. After reviewing the allegation, the Department determined that petitioners' major input allegation provided a reasonable basis on which to initiate an investigation of Eurodif's purchases of electricity from EdF.
Section 773(f)(3) of the Act states that “{i}f, in the case of a transaction between affiliated persons involving the production by one of such persons of a major input to the merchandise, the administering authority has reasonable grounds to believe or suspect that an amount represented as the value of such input is less than the cost of production of such input, then the administering authority may determine the value of the major input on the basis of the information available regarding such cost of production, if such cost is greater than the amount that would be determined for such input under paragraph (2).”
On November 4, 2004, the Department solicited information from the respondent regarding the calculation of EdF's COP. On December 23, 2004, we asked for clarification on the significant differences between the reported single average cost figure and the expense amounts shown in EdF's annual report. As we are unable to ascertain the reconciling differences between the reported costs and the costs shown in the annual report, we have adjusted EdF's reported cost of producing electricity by calculating a single weighted-average cost of producing electricity for the POR based on the information from EdF's annual report.
Because the calculated COP for electricity exceeded the transfer price Eurodif paid to EdF for the electricity purchased, we calculated CV based on the COP of EdF, in accordance with section 773(f)(3) of the Act. For a full discussion of the COP of electricity, due to the proprietary nature of this information (
The Department has determined that the use of partial facts available is appropriate for purposes of determining the preliminary dumping margin for subject merchandise sold by Eurodif/COGEMA. Specifically, as indicated above, the Department has applied partial facts available to its CV calculation with respect to electricity, a major input into the production of LEU (
Section 776(a)(2) of the Act provides that, if an interested party or any other person (A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding under this subtitle; or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act, the administering authority shall, subject to section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination under this title.
As indicated above, on November 4, 2004, the Department issued a questionnaire, requesting that Eurodif/COGEMA provide the actual per-unit cost of its affiliated electricity supplier and provide worksheets demonstrating the derivation of this cost from the affiliated supplier's cost accounting system. The Department issued another questionnaire on December 23, 2004, requesting that Eurodif/COGEMA provide documentary support for the information already provided and to reconcile such information to EdF's financial statements. The Department's detailed questions concerning the reconciliation of the information provided are contained in the public versions of the two major input questionnaires, which are on file in the CRU.
As long recognized by the U.S. Court of International Trade (CIT), the burden to create a complete and accurate record is on the respondent, not on the Department.
Eurodif/COGEMA submitted additional information on February 10, 2005, and a partial cost reconciliation on February 15, 2005, which the Department determined to be insufficient. On February 18, 2005, Eurodif/COGEMA filed additional information pertaining to EdF's cost reconciliation, which the Department still considered to be insufficient. At that point, due to the imminent preliminary results of review, the Department notified all parties that no new information would be accepted unless requested by the Department, and that any submission filed as of February 22, 2005, would not be considered for these preliminary results. The Department also indicated that it would solicit more information from respondent regarding EdF's COP after the issuance of the preliminary results and that it would revisit the electricity
Consequently, for these preliminary results, the Department has determined that Eurodif/COGEMA has not cooperated to the best of its ability in responding to the Department's request for information. In accordance with section 776(a)(2)(A) and (B) of the Act, we are applying partial facts otherwise available in calculating Eurodif/COGEMA's dumping margin. As facts available, the Department has used a COP for electricity calculated on the basis of EdF's 2003 financial statements.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determined NV based on sales in the comparison market at the same level of trade (LOT) as the U.S. sales.
Generally, to determine whether the sales on which NV is based are at a different LOT than the CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and the comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. For CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP offset provision).
In the current review, Eurodif/COGEMA provided information about the marketing stages involved in the reported U.S. sales, as well as in the home market and in third countries, including a description of the selling activities performed by the respondent for each channel of distribution. Given that all U.S. sales were CEP sales, we considered only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act.
In the U.S. market, the respondent sells to utility customers through one channel of distribution. After deducting expenses associated with the selling activities reflected in the price under section 772(d) of the Act (
Because Eurodif/COGEMA had sales to third countries during the POR, we based our LOT analysis on Eurodif/COGEMA's third country sales. For such sales, the evidence on the record indicates that eight of the 13 categories of selling functions Eurodif performs are at the same level of activity, and five are performed at differing levels of activity, compared to sales to the United States.
We made currency conversions pursuant to section 351.415 of the Department's regulations based on rates certified by the Federal Reserve Bank.
We preliminarily determine that the following dumping margin exists:
Pursuant to section 351.224(b) of the Department's regulations, the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of publication of this notice. Pursuant to section 351.309 of the Department's regulations, interested parties may submit written comments in response to these preliminary results. Unless extended by the Department, case briefs are to be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, are to be submitted no later than five days after the time limit for filing case briefs. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) A statement of the issues, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with section 351.303(f) of the Department's regulations.
Also, pursuant to section 351.310 (c) of the Department's regulations, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location.
The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, no later than 120 days after publication of these preliminary results, unless extended.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to
The following cash deposit rates will be effective with respect to all shipments of LEU from France entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided for by section 751(a)(1) of the Act: (1) For Eurodif/COGEMA, the cash deposit rate will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will be the company-specific rate established for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the subject merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered by this review, a prior review, or the LTFV investigation, the cash deposit rate shall be the all other rate established in the LTFV investigation, which is 19.95 percent.
This notice serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
March 7, 2005.
Jeff Boord or Nicholas Czajkowski, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-6345 or (202) 482-1395, respectively.
On August 31, 2004, the Department of Commerce (the Department) received timely requests to conduct an administrative review of the antidumping duty order on oil country tubular goods from Korea. On September 22, 2004, the Department published a notice of initiation of this administrative review, covering the period of August 1, 2003, through July 31, 2004 (69 FR 56745). The preliminary results are currently due no later than May 3, 2005.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested. However, if it is not practicable to complete the review within these time periods, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary results to a maximum of 365 days after the last day of the anniversary month of an order for which a review is requested.
We are currently analyzing a number of complex issues with respect to the basis for normal value which must be addressed prior to the issuance of the preliminary results. Specifically, our analysis of input cost issues and comparison market issues requires additional time and makes it impracticable to complete the preliminary results of this review within the originally anticipated time limit. Accordingly, the Department is extending the time limit for completion of the preliminary results of this administrative review until no later than August 31, 2005, which is 365 days from the last day of the anniversary month. We intend to issue the final results no later than 120 days after publication of the preliminary results notice.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Initiation of Anticircumvention Inquiries of Antidumping Duty Order: Petroleum Wax Candles from the People's Republic of China.
In response to a request from the National Candle Association (“NCA” or “Petitioners”), the Department of Commerce (“the Department”) is initiating an anticircumvention inquiry pursuant to section 781(c) of the Tariff Act of 1930, as amended, (“the Act”) to determine whether mixed wax candles composed of petroleum wax and varying amounts of either palm or vegetable-based waxes have been subject to a minor alteration such that the addition of the non-petroleum content to these candles results in products that are “altered in form or appearance in minor respects” from the subject merchandise that these mixed wax petroleum candles can be considered subject to the antidumping duty order on petroleum wax candles from the People's Republic of China (“PRC”) under the minor alterations provision.
In addition, in response to a request from the NCA, the Department is also initiating an anticircumvention inquiry pursuant to section 781(d) of the Act to determine whether mixed wax candles composed of petroleum wax and varying amounts of either palm or vegetable-based waxes are later-developed products that can be considered subject to the antidumping duty order on petroleum wax candles from the PRC under the later-developed merchandise provision.
March 7, 2005.
Alex Villanueva, Julia Hancock, or Nicole Bankhead, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC, 20230; telephone: (202) 482-3208, (202) 482-1394, and (202) 482-9068, respectively.
On October 8, 2004, Petitioners requested that the Department conduct an anticircumvention inquiry pursuant to section 781(d) of the Act to determine whether candles containing palm or vegetable-based waxes as the majority ingredient and exported to the United States are circumventing the antidumping duty order on petroleum wax candles from the PRC.
On October 12, 2004, Petitioners requested that the Department conduct an anticircumvention inquiry pursuant to section 781(c) of the Act to determine whether candles containing palm or vegetable-based waxes and exported to the United States are circumventing the antidumping duty order on petroleum wax candles from the PRC.
On November 15, 2004, the Candle Corporation of America (“CCA”), a domestic producer, submitted comments in opposition to Petitioners' request that the Department initiate this anticircumvention inquiry. On November 15, 2004, the Department extended the deadline by three weeks for initiating the later-developed merchandise anticircumvention inquiry from November 22, 2004, to December 13, 2004. In addition, on November 15, 2004, the Department extended by three weeks the deadline for initiating the minor alterations anticircumvention inquiry, from November 26, 2004, to December 17, 2004.
On November 16, 2004, Russ Berrie & Company, Inc. (“Russ Berrie”), a domestic importer, submitted comments in opposition to Petitioners' request that the Department initiate an anticircumvention inquiry.
On December 2, 2004, J.C. Penney Company, Inc., Target Corporation, the National Retail Federation, the MVP Group, the Candle Company, and the World at Large, hereinafter collectively known as the Coalition for Free Trade in Candles (“CFTC”), which represents these domestic importers, submitted comments in opposition to Petitioners' request that the Department initiate an anticircumvention inquiry.
On December 6, 2004, Fine Arts Marketing, Inc.; HomeScents, Inc.; Lava Enterprises Inc.; Makebest Industries, Ltd.; Silk Road Gifts, Inc.; Tag Trade Associates Group, Ltd. and Zodax, Inc., hereinafter collectively referred to as the “Tuttle Importers,” submitted comments in these domestic importers' opposition to Petitioners' request that the Department initiate an anticircumvention inquiry.
On December 9, 2004, Petitioners submitted rebuttal comments to the Department in response to comments made by those parties opposing Petitioners' request for the initiation of an anticircumvention inquiry.
On December 10, 2004, Pier 1 Imports (U.S.), Inc. (“Pier 1”), a domestic importer, submitted comments in opposition to Petitioners' request that the Department initiate an anticircumvention inquiry.
On December 13, 2004, the Department extended the later-developed merchandise anticircumvention initiation deadline because additional information was needed for the Department to make a decision within the established time limits to initiate an anticircumvention inquiry. The deadline for initiating the later-developed merchandise anticircumvention inquiry was extended by sixty days from December 13, 2004, to February 11, 2005. Also on December 13, 2004, the Department issued a supplemental questionnaire to Petitioners regarding several areas in the later-developed merchandise anticircumvention request that needed further clarification.
In addition, on December 13, 2004, the Department extended the minor alterations anticircumvention initiation deadline a second time because additional information was needed Department to make a decision within the established time limits to initiate an anticircumvention inquiry. The deadline for initiating the minor alterations anticircumvention inquiry was extended by sixty days from December 17, 2004, to February 15, 2005. Also, on December 13, 2004, the Department issued a supplemental questionnaire to Petitioners addressing several areas in the minor alterations anticircumvention request that needed further clarification.
On December 17, 2004, Petitioners requested an extension of three weeks to respond to the Department's supplemental questionnaires. On December 20, 2004, the Department granted Petitioners an extension of fifteen days from December 27, 2004, to January 14, 2005, to respond to the Department's supplemental questionnaires. On January 14, 2005, Petitioners submitted a response to the supplemental questionnaires issued by the Department.
On January 24, 2005, the CFTC requested that the Department extend the deadline for initiating the anticircumvention inquiry by one month from February 11, 2005, to March 11, 2005.
On January 25, 2005, Petitioners submitted samples of candles, which were referenced in the supplemental questionnaire response filed on January 14, 2005.
On January 27, 2005, Petitioners submitted comments in opposition to the CFTC's request to extend the deadline for initiating the anticircumvention inquiry.
On January 28, 2005, CCA submitted comments in response to Petitioners' supplemental questionnaire response.
On January 31, 2005, the Department extended the later-developed merchandise anticircumvention initiation deadline a third time because domestic interested parties needed additional time to respond to Petitioners' supplemental response. The deadline for initiating the later-developed merchandise anticircumvention inquiry was extended by ten days from February 11, 2005, to February 22, 2005. Also, on January 31, 2005, the Department extended the anticircumvention initiation deadline for the minor alterations anticircumvention inquiry by ten days from February 15, 2005, to February 25, 2005. In addition, on January 31, 2005, the Department granted CFTC and other interested parties an extension of ten days from January 28, 2005, to February 7, 2005, to submit factual information rebutting, clarifying, or corroborating factual information submitted by Petitioners to respondents on January 18, 2005.
Also on January 31, 2005, Russ Berrie requested that the Department extend the deadline for initiation. In its submission, Russ Berrie noted that it had submitted interim comments rebutting Petitioners' supplemental response in case in which the
On February 2, 2005, CFTC submitted comments in response to Petitioners' supplemental questionnaire responses.
On February 7, 2005, Petitioners submitted rebuttal comments in response to comments made by interested parties regarding Petitioners' supplemental response. On February 7, 2005, Silk Road Gifts, Ltd. (“Silk Road”), a domestic importer, submitted comments in response to Petitioners' supplemental response. Also on February 7, 2005, CFTC submitted additional comments and samples of candles.
On February 11, 2005, the Department placed a memorandum on the file regarding the ex parte meeting the Department had with counsel for Petitioners on February 10, 2005.
On February 16, 2005, the Department placed a memorandum on the file regarding the ex parte meeting Acting Assistant Secretary Joseph Spetrini had with members of the Coalition for Free Trade in Candles on February 15, 2005.
On February 18, 2005, the Department extended the initiation deadline of the anticircumvention inquiry by three days from February 22, 2005, to February 25, 2005. Additionally, on February 18, 2005, Qindao Kingking Applied Chemistry Co., Ltd.; Shonfeld's (USA), Inc.; Alef Judaica, Inc.; and Amscan, Inc. submitted comments in response to Petitioners' supplemental questionnaire response.
On February 24, 2005, a memorandum to the file was placed by the Department regarding the ex parte meeting that the Acting Assistant Secretary Joseph Spetrini had with counsel for Petitioners on February 23, 2005. Additionally, on February 24, 2005, Petitioners filed further rebuttal comments.
The products covered by this order are certain scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: tapers, spirals, and straight-sided dinner candles; round, columns, pillars, votives; and various wax-filled containers. The products were classified under the Tariff Schedules of the United States (“TSUS”) 755.25, Candles and Tapers. The product covered are currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) item 3406.00.00. Although the HTSUS subheading is provided for convenience purposes, our written description remains dispositive.
Section 781(c)(1) of the Act provides that the Department may find circumvention of an antidumping duty order when products which are of the class or kind of merchandise subject to an antidumping duty order have been “altered in form or appearance in minor respects * * * whether or not included in the same tariff classification.”
Based on the language contained in the petition, the antidumping duty order, and the fact that the domestic “like product” determinations of the ITC are not dispositive, the Department finds that there is sufficient basis to initiate an anticircumvention inquiry pursuant to section 781(c) of the Act to determine whether the addition of vegetable and/or palm-based wax results in a minor alteration, and thus, a change so insignificant as to render the petroleum based, mixed candle subject to the antidumping duty order on petroleum wax candles from the PRC.
Petitioners argue that it is almost impossible to specify in this application all or most all PRC producers and importers of mixed wax petroleum wax candles containing varying amounts of palm or other vegetable-based waxes because of the continuously increasing quantity of imports of these candles into the United States. Additionally, Petitioners argue that an application requesting an anticircumvention inquiry and a resulting determination finding circumvention limited to only a few companies and specific candles would have little to no effect in preventing circumvention of the order.
The Department recognizes that Petitioners have limited information available to them at this time regarding the production, exportation and importation of mixed wax petroleum wax candles containing varying amounts of palm or other vegetable-based waxes. Specifically, we agree that obtaining subject and non-subject import data from the only tariff classification for all candles and the unknown number of companies producing and exporting to the United States mixed wax petroleum wax candles containing varying amounts of palm and/or vegetable-based waxes is difficult. However, we also note that Petitioners have provided a list of companies importing and, to a certain extent, identified those companies producing/exporting mixed wax petroleum wax candles varying amounts of palm and/or vegetable-based waxes based on that companies' scope ruling request submitted to the Department.
We are initiating this anticircumvention inquiry on particular PRC exporters, as identified by Petitioners in Appendix 1 of their January 14, 2005, submission. However, within 45 days of the date of initiation of this inquiry, if the Department receives sufficient evidence that other PRC manufacturers are involved in the production of mixed wax petroleum wax candles containing varying amounts of palm and/or vegetable-based waxes for export to the United States, we will consider examining such additional manufacturers.
The Department will not order the suspension of liquidation of entries of any additional merchandise at this time. However, in accordance with 19 CFR 351.225(l)(2), if the Department issues a preliminary affirmative determination, we will then instruct U.S. Customs and Border Protection (“CBP”) to suspend liquidation and require a cash deposit of estimated duties on the merchandise.
Section 781(d)(1)(A) of the Act provides that the Department may find circumvention of an antidumping duty order when merchandise is developed after an investigation is initiated (“later-developed merchandise”).
Based on the language contained in the petition and the antidumping duty order, and the fact that the domestic like product determinations of the International Trade Commission (“ITC”) is not dispositive, the Department finds that there is sufficient basis to initiate an anticircumvention inquiry pursuant to section 781(d) of the Act to determine whether candles produced through the
The Department recognizes that the ITC's final injury determination states that “commercial production of candles generally uses “natural” waxes (paraffins, microcrystallines, stearic acid, and beeswax) in various combinations.”
In addition, parties may submit comments regarding the appropriateness of our later-developed analysis as provided in this notice, no later than thirty days from the date of publication of this notice. Rebuttal comments are due no later than forty days from the date of publication of this notice.
The Department will not order the suspension of liquidation of entries of any additional merchandise at this time. However, in accordance with 19 CFR 351.225(l)(2), if the Department issues a preliminary affirmative determination, we will then instruct CBP to suspend liquidation and require a cash deposit of estimated duties on the merchandise.
We intend to notify the ITC in the event of an affirmative preliminary determination of circumvention, in accordance with 781(e)(1) of the Act and 19 CFR 351.225(f)(7)(i)(C).The Department will, following consultation with interested parties, establish a schedule for questionnaires and comments on the issues. The Department intends to issue its final determinations within 300 days of the date of publication of this initiation. This notice is published in accordance with sections 781(c) and 781(d) of the Act and 19 CFR 351.225(i).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting the fifth administrative review of the antidumping duty order on certain preserved mushrooms from the People's Republic of China (“PRC”) covering the period February 1, 2003, through January 31, 2004. We have preliminarily determined that sales have been made below normal value. If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the period of review (“POR”), for which the importer-specific assessment rates are above
Interested parties are invited to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.
Amber Musser or Brian C. Smith, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1777, or (202) 482-1766, respectively.
On February 19, 1999, the Department published in the
On February 3, 2004, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on certain preserved mushrooms from the PRC.
On February 27, 2004, the petitioner
On March 30, 2004, the Department initiated an administrative review covering the companies listed in the requests received from the interested parties. (
On October 15, 2004, the Department published in the
On March 30, 2004, we issued the antidumping duty questionnaire to each PRC company listed in the above-referenced initiation notice.
On April 1, 2004, the respondents Guangxi Yizhou, Nanning Runchao, Raoping Xingyu and its affiliate Raoping Yucun, Shenxian Dongxing, and Shenzhen Qunxingyuan each indicated that it did not have shipments of the subject merchandise to the United States during the POR.
On May 7, 2004, the respondents Minhui, Primera Harvest, Superlucky, Tak Fat and its affiliate Mei Wei, and Zhongjia each indicated that it did not have shipments of the subject merchandise to the United States during the POR.
From May 13 through May 28, 2004, COFCO and its affiliates, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, Shantou Hongda, and XITIC submitted their responses to the Department's antidumping duty questionnaire.
From May 29 through July 15, 2004, the petitioner submitted comments on the questionnaire responses provided by COFCO, Gerber, Green Fresh, and Guangxi Hengxian.
From July 7 through August 3, 2004, the Department issued COFCO, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, Shantou Hongda, and XITIC supplemental questionnaires.
On August 3, 2004, Shantou Hongda indicated that it no longer intended to participate in this review and requested that the Department extend the time limit for withdrawing its request for an administrative review.
From August 11 through September 13, 2004, COFCO, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC submitted their responses to the Department's supplemental questionnaire.
From September 16 through October 18, 2004, the petitioner submitted additional comments on the questionnaire responses provided by COFCO, Gerber, and Guangxi Hengxian.
From October 12 through November 29, 2004, the Department issued COFCO, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC second supplemental questionnaires.
From November 9 through December 27, 2004, COFCO, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC submitted their responses to the Department's second supplemental questionnaires.
On December 2, 2004, the petitioner submitted additional comments on the second supplemental questionnaire response provided by Guangxi Hengxian.
On November 18, 2004, the Department issued Gerber a third supplemental questionnaire which it submitted on December 16, 2004.
On December 20, 2004, the Department issued Guangxi Hengxian a third supplemental questionnaire which it submitted on January 12, 2005.
On December 29, 2004, the Department issued COFCO a third supplemental questionnaire which it submitted on January 25, 2005.
From December 17 through December 20, 2004, the Department issued COFCO, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC a sales and cost reconciliation questionnaire, which the respondents submitted from January 19, through January 26, 2005.
On December 29, 2004, the Department issued Gerber a fourth supplemental questionnaire which it submitted on January 24, 2005.
As a result of not receiving its response to the antidumping duty questionnaire, the Department issued a letter to Zhangzhou Jingxiang on January 3, 2005, which notified this company of the consequences of not having responded to the Department's antidumping questionnaire.
On January 18, 2005, the petitioner submitted additional comments on the questionnaire responses provided by COFCO.
On April 29, 2004, the Department provided the parties an opportunity to submit publicly available information (“PAI”) for consideration in these preliminary results.
On August 16, 2004, the petitioner, Gerber, Guangxi Hengxian, Jiufa, and XITIC submitted PAI for use in valuing the factors of production. On August 26, 2004, the petitioner, Guangxi Hengxian, and Jiufa submitted additional PAI. On September 7, 2004, the petitioner submitted additional PAI and comments.
On October 22, 2004, Guangxi Hengxian and Jiufa submitted comments on the Department's surrogate value for labor which was posted on the Department's Web site on October 6, 2004.
On January 10, 2005, Guangxi Hengxian and Jiufa submitted additional surrogate values for consideration in this review.
On February 4, 2005, the petitioner submitted pre-preliminary results comments on the domestic re-sale data provided by Gerber in this review (
The POR is February 1, 2003, through January 31, 2004.
The products covered by this order are certain preserved mushrooms whether imported whole, sliced, diced, or as stems and pieces. The preserved mushrooms covered under this order are the species
Excluded from the scope of this order are the following: (1) All other species of mushroom, including straw mushrooms; (2) all fresh and chilled mushrooms, including “refrigerated” or “quick blanched mushrooms”; (3) dried mushrooms; (4) frozen mushrooms; and (5) “marinated,” “acidified,” or “pickled” mushrooms, which are prepared or preserved by means of vinegar or acetic acid, but may contain oil or other additives.
The merchandise subject to this order is classifiable under subheadings: 2003.10.0127, 2003.10.0131, 2003.10.0137, 2003.10.0143, 2003.10.0147, 2003.10.0153 and 0711.51.0000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
We are preliminarily rescinding this review with respect to Guangxi Yizhou, Minhui, Nanning Runchao, Primera Harvest, Raoping Xingyu and its affiliate Raoping Yucun, Shenxian Dongxing, Shenzhen Qunxingyuan, Superlucky, Tak Fat and its affiliate Mei Wei, and Zhongjia, because the shipment data we examined did not show U.S. entries of the subject merchandise during the POR from these companies (
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is a NME country shall remain in effect until revoked by the administering authority. (
Section 773(c)(4) of the Act requires the Department to value an NME producer's factors of production, to the extent possible, in one or more market-economy countries that (1) are at a level of economic development comparable to that of the NME country, and (2) are significant producers of comparable merchandise. India is among the countries comparable to the PRC in terms of overall economic development (
For the reasons stated below, we have preliminarily applied partial adverse facts available to Green Fresh.
Section 776(a) of the Act provides that, if an interested party withholds information that has been requested by the Department, fails to provide such information in a timely manner or in the form or manner requested (subject to sections 782(c)(1) and 782(e) of the Act), significantly impedes a proceeding under the antidumping statute, or provides information which cannot be verified, the Department shall use, subject to section 782(d) of the Act, facts otherwise available in reaching the applicable determination.
In this review, Green Fresh reported both export price (“EP”) and constructed export price (“CEP”) sales transactions of subject merchandise during the POR. However, Green Fresh failed to provide critical information that the Department must have in order to rely on its CEP sales transactions. Specifically, in the Department's original questionnaire, we requested that Green Fresh provide the financial and sales data for its U.S. affiliates' sales transactions of subject merchandise made during the POR. In response to the Department's questionnaire, Green Fresh did not report any data for its U.S. affiliates. The Department, in its first supplemental questionnaire, requested that this respondent provide sales and audited financial data (
Because most of Green Fresh's reported CEP sales transactions during this POR were first sold through Green Mega before being re-sold through Green Fresh's other U.S. affiliate (
For these CEP sales transactions, the Department also requested, and Green Fresh failed to provide, (1) worksheets which supported its per-unit amounts for customs duties; (2) shipment dates; and (3) selling expense data applicable for Green Mega during the POR. This information is necessary for the Department to calculate a proper dumping margin.
Section 782(d) of the Act requires that the Department allow parties to remedy deficient submissions to the extent that time limits in the review period allow. As stated above, the Department gave Green Fresh multiple opportunities to provide the necessary financial data, including through the date by which Green Fresh, itself, indicated it would provide the data. Accordingly, the Department met its obligations under section 782(d).
As discussed above, both of Green Fresh's U.S. affiliates failed to provide critical information necessary to substantiate Green Fresh's reported CEP sales data. As a result, the Department is unable to rely on Green Fresh's CEP data. Therefore, we find that, pursuant to section 776(a)(2)(D) of the Act, the use of facts available is warranted in this segment of the proceeding with respect to Green Fresh.
Section 776(b) of the Act provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of that party as facts otherwise available. Section 776(b) of the Act further provides that, in selecting from among the facts available, the Department may employ adverse inferences against an interested party if that party failed to cooperate by not acting to the best of its ability to comply with requests for information.
In this segment of the proceeding, in accordance with the Department's practice (
For the reasons stated below, we have applied total adverse facts available to Dingyuan, Shantou Hongda, and Zhangzhou Jingxiang.
On August 3, 2004, Shantou Hongda informed the Department that it no longer intended to participate in this review (
The Department was unable to ascertain the accuracy of Shantou Hongda's submitted data or determine whether Shantou Hongda was entitled to a separate rate because Shantou Hongda stated that it no longer intended to participate in this review after the Department issued it a supplemental questionnaire. As a result, Shantou Hongda did not provide the Department with requested information.
With respect to Dingyuan and Zhangzhou Jingxiang, both companies failed to respond to the Department's antidumping duty questionnaire. Dingyuan, Shantou Hongda, and Zhangzhou Jingxiang, accordingly, each failed to act to the best of its ability in cooperating with the Department's request for information in this segment of the proceeding.
As a result, none of these companies is eligible to receive a separate rate and will be part of the PRC NME entity, subject to the PRC-wide rate. Pursuant to section 776(b) of the Act, we have applied total adverse facts available with respect to the PRC-wide entity, including Dingyuan, Shantou Hongda, and Zhangzhou Jingxiang.
In this segment of the proceeding, in accordance with Department practice (
Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, a figure which it applies as facts available. To be considered corroborated, information must be found to be both reliable and relevant. We are applying as adverse facts available (“AFA”) the highest rate from any segment of this administrative proceeding, which is a rate from the less-than-fair-value (“LTFV”) investigation. (
The information upon which the AFA rate is based in the current review (
To further corroborate the AFA margin of 198.63 percent in this review, we compared that margin to the margins we found for the other respondents which sold identical and/or similar products. Based on our above-mentioned analysis, we find that 198.63 percent is within the margins for individual sales of identical and/or similar products reported by certain respondents in this review (
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in
Based on our analysis as described above, we find that the margin of 198.63 percent is reliable and has relevance. As the rate is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the calculated rate of 198.63 percent, which is the current PRC-wide rate, is in accord with the requirement of section 776(c) that secondary information be corroborated (
To the extent that section 771(33) of the Act does not conflict with the Department's application of separate rates and enforcement of the non-market economy (“NME”) provision, section 773(c) of the Act, the Department will determine that exporters and/or producers are affiliated if the facts of the case support such a finding (
COFCO purchased preserved mushrooms from its producer, Fujian Yu Xing Fruit & Vegetable Foodstuff Development Co. (“Yu Xing”), which it then sold to the United States during the POR. COFCO is also linked through its parent company, China National Cereals, Oils, & Foodstuffs Import & Export Corporation (“China National”), and Xiamen Jiahua Import and Export Trading Co., Ltd. (“Xiamen Jiahua”) to two other preserved mushroom producers, COFCO (Zhangzhou) Food Industrial Co., Ltd. (“COFCO Zhangzhou”) and Fujian Zishan Group Co. (“Fujian Zishan”), from which COFCO purchased preserved mushrooms but claims it did not re-sell to the U.S. market during the POR (
Section 771(33)(E) of the Act provides that the Department will find parties to be affiliated if any person directly or indirectly owns, controls, or holds with power to vote, five percent or more of the outstanding voting stock or shares of any organization and such organization; section 771(33)(F) of the Act provides that parties are affiliated if two or more persons directly or indirectly control, or are controlled by, or under common control with any other person; and section 771(33)(G) of the Act provides that parties are affiliated if any person controls any other person.
In this case, COFCO holds a significant ownership share in Yu Xing (
In addition, COFCO Zhangzhou (which also produced preserved mushrooms during the POR) appears to be affiliated with both COFCO and Yu Xing based on section 771(33) of the Act. Specifically, both COFCO and Yu Xing hold significant ownership shares in COFCO Zhangzhou (
Furthermore, based on data contained in COFCO's questionnaire responses, COFCO, COFCO Zhangzhou, and Yu Xing are also affiliated, pursuant to section 771(33) of the Act, either directly or indirectly, with two other companies (
With respect to Fujian Zishan (
Pursuant to 19 CFR 351.401(f), the Department will collapse producers and treat them as a single entity where (1) those producers are affiliated, (2) the producers have production facilities for producing similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities, and (3) there is a significant potential for manipulation of price or production. In determining whether a significant potential for manipulation exists, the regulations provide that the Department may consider various factors, including (1) the level of common ownership, (2) the extent to which managerial employees or board members of one firm sit on the board of directors of an affiliated firm, and (3) whether the operations of the affiliated firms are intertwined. (
In summary, depending upon the facts of each investigation or administrative review, if there is evidence of significant potential for manipulation or control between or among producers which produce similar and/or identical merchandise, but may not all produce their product for sale to the United States, the Department may find such evidence sufficient to apply the collapsing criteria in an NME context in order to determine whether all or some of those affiliated producers should be treated as one entity (
As noted above in the “Affiliation” section of this notice, we find a sufficient basis to conclude that COFCO, China National, COFCO Zhangzhou, Fujian Zishan, Xiamen Jiahua, and Yu Xing are affiliated through the common control of COFCO's parent company pursuant to section 771(33)(F) and (G) of the Act. Three of these entities, COFCO Zhangzhou, Fujian, Zishan, and Yu Xing produced preserved mushrooms during the POR, which would be subject to the antidumping duty order if this merchandise entered the United States since all three producers have the facilities necessary to produce preserved mushrooms (
Finally, we find that the third collapsing criterion is met in this case because a significant potential for manipulation of price or production exists among COFCO and its affiliates for the following reasons.
First, as explained above, there is a substantial level of common ownership between and among these companies.
Second, a significant level of common control exists among these companies. Specifically, China National appointed COFCO's general manager and that this same individual was appointed by China National to be Xiamen Jiahua's executive director and serves as a board member at both COFCO Zhangzhou and Yu Xing (
Third, we find that the operations of COFCO, COFCO Zhangzhou, Yu Xing, and Fujian Zishan, China National, and Xiamen Jiahua are sufficiently intertwined. Specifically, China National consolidates COFCO's and Xiamen Jiahua's financial data in its financial statements as well as issues a business plan which provides guidance to its affiliated companies (
Therefore, based on the above-mentioned reasons and the guidance of 19 CFR 351.401(f), we have preliminarily collapsed COFCO and its affiliates noted above because there is a significant potential for manipulation of production and/or sales decisions between these parties. Consequently, we have considered COFCO and the five affiliates mentioned above as a collapsed entity for purposes of determining whether or not the collapsed entity as a whole is entitled to a separate rate. This decision is specific to the facts presented in this review and based on several considerations, including the structure of the collapsed entity and the level of control between/among affiliates and the level of participation by each affiliate in the proceeding. Given the unique relationships which arise in NMEs between individual companies and the government, a separate rate will be granted to the collapsed entity only if the facts, taken as a whole, support such a finding (
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty deposit rate (
Two respondents, Green Fresh and Guangxi Yulin, are joint ventures of PRC entities. Two respondents, Jiufa and XITIC, are joint-stock companies in the PRC. Another respondent, Guangxi Hengxian, is a limited liability company.
The remaining respondent, COFCO, is owned by its affiliate China National, an exporter, which is owned by “all of the people.” COFCO also owns in part two preserved mushroom producers, COFCO Zhangzhou and Yu Xing. (Yu Xing has export rights but has never directly exported). In addition to COFCO, China National owns in part Xiamen Jiahua (
Thus, a separate-rates analysis is necessary to determine whether the export activities of each of above-mentioned respondents (including COFCO's collapsed entity as a whole) is independent from government control. (
Evidence supporting, though not requiring, a finding of
COFCO's collapsed entity, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC have placed on the administrative record the following documents to demonstrate absence of
As in prior cases, we have analyzed these laws and have found them to establish sufficiently an absence of
As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. (
The Department typically considers four factors in evaluating whether each respondent is subject to
The affiliates in COFCO's collapsed entity (where applicable), Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC each has asserted the following: (1) Each establishes its own export prices; (2) each negotiates contracts without guidance from any governmental entities or organizations; (3) each makes its own personnel decisions; and (4) each retains the proceeds of its export sales, uses profits according to its business needs, and has the authority to sell its assets and to obtain loans. Additionally, each respondent's questionnaire responses indicate that its pricing during the POR does not suggest coordination among exporters. As a result, there is a sufficient basis to preliminarily determine that each respondent listed above (including COFCO's collapsed entity as a whole) has demonstrated a
To determine whether sales of the subject merchandise by COFCO and its affiliates, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC to the United States were made at prices below normal value (“NV”), we compared each company's EPs or CEPs to NV, as described in the “Export Price,” “Constructed Export Price,” and “Normal Value” sections of this notice, below.
For COFCO, Gerber, Green Fresh, Guangxi Yulin, Jiufa, and XITIC, we used EP methodology in accordance with section 772(a) of the Act for sales in which the subject merchandise was first sold prior to importation by the exporter outside the United States directly to an unaffiliated purchaser in the United States and for sales in which CEP was not otherwise indicated. (
We calculated EP based on packed, CNF U.S. port prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight, foreign brokerage and handling charges in the PRC, and international freight in accordance with section 772(c) of the Act. Because foreign inland freight and foreign brokerage and handling fees were provided by PRC service providers or paid for in renminbi, we based those charges on surrogate rates from India (
We calculated export price based on packed, FOB foreign port prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight, brokerage, and handling expenses in accordance with section 772(c) of the Act. Because foreign inland freight, brokerage, and handling expenses were provided by PRC service providers or paid for in Chinese currency (
COFCO claims that its affiliated producer, Yu Xing, did not incur an expense for the glass jars used to export the subject merchandise to the United States because COFCO's U.S. customers provided this item to Yu Xing free-of-charge. In the Department's supplemental questionnaire, we specifically requested COFCO to provide documentation (
Because COFCO has not sufficiently supported its claim that its U.S. customer contracted with a PRC jar producer, and that this producer had indeed delivered jars to Yu Xing in a certain quantity on a certain date, free-of-charge, the Department has not modified the U.S. price of those transactions to reflect the U.S. customer's reported expenditures for the preserved mushrooms and the jars. Because the details of the alleged jars transactions are virtually nonexistent on the record, and the link between these jars and the production of the subject merchandise has not been sufficiently established, the Department has preliminarily found that the record does not support such an adjustment to COFCO's reported U.S. prices. This preliminary decision on this matter is consistent with
Finally, we also revised COFCO's, Guangxi Yulin's and XITIC's reported per-unit packed weights used to derive PRC movement expenses (
We calculated export price based on packed, CIF U.S. port prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight, brokerage, and handling expenses, international freight (
For Guangxi Hengxian we calculated CEP in accordance with section 772(b) of the Act because the U.S. sale was made for the account of Guangxi Hengxian by its subsidiary in the United States, Sino-Trend, Inc. (“Sino-Trend”), to an unaffiliated purchaser in the United States.
We based CEP on a packed, ex-U.S. port prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included foreign inland freight and foreign brokerage and handling charges in the PRC, international freight (
In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (credit expenses), indirect selling expenses, and inventory carrying expenses incurred in the United States. We also made an adjustment for profit in accordance with section 772(d)(3) of the Act.
Section 773(c)(1) of the Act provides that the Department shall determine NV using a factors-of-production methodology if the merchandise is exported from an NME country and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department will base NV on the factors of production because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under its normal methodologies.
For purposes of calculating NV, we valued the PRC factors of production in accordance with section 773(c)(1) of the Act. Factors of production include, but are not limited to, hours of labor required, quantities of raw materials employed, amounts of energy and other utilities consumed, and representative capital costs, including depreciation.
Pursuant to section 776(a)(2)(D) of the Act, the Department used facts otherwise available to value certain factors of production for which Gerber, Green Fresh, Guangxi Yulin and Yu Xing (
Specifically, Green Fresh failed to provide, as requested, a consumption factor for the water it used to grow fresh mushrooms. Although this respondent claimed it obtained the water free of charge from a nearby river and was unable to determine the amount of water it used to grow its fresh mushrooms, the Department was clear in its supplemental questionnaires that the respondent is required to report the requested information.
In addition, although this respondent argues that valuing this factor would result in double counting its costs associated with water usage in the fresh mushroom production process if the Department also valued the electricity it used to pump the water from the nearby river, we find that Green Fresh did not provide sufficient evidence in its questionnaire responses to demonstrate that its reported electricity usage for growing fresh mushrooms was only limited to water pumping activities. Such information is necessary for determining the normal value of Green Fresh's reported U.S. sales. Thus, with respect to this factor, we have determined that Green Fresh did not act to the best of its ability in providing us with the requested information. Accordingly, pursuant to section 776(b) of the Act, as adverse facts available, the Department has used the highest per-unit water factor for fresh mushroom production (based on the per-unit consumption data for this input reported by the other respondents in this review) for purposes of valuing the costs associated with this input utilized by Green Fresh.
Section 773(c)(3) of the Act states that “the factors of production utilized in producing merchandise include, but are not limited to the quantities of raw materials employed.” Therefore, the Department is required under the Act to value all inputs (including inputs for which the respondent claims were provided to it purportedly free of charge). As explained in the “Export Price” section above, COFCO did not sufficiently support its claim that its U.S. customer provided Yu Xing the jars it used free-of-charge. For this reason, we have not adjusted COFCO's reported U.S. prices to include the value of jars for certain sales of preserved mushrooms in these preliminary results. Despite the fact that we have not made the above-referenced adjustment to COFCO's U.S. prices reported for sales of the subject merchandise contained in jars, section 773(c)(3) of the Act nevertheless requires the Department to value each factor of production used to produce the subject merchandise. Accordingly, for these preliminary results, the Department has valued the jar usage amounts reported by Yu Xing by using a surrogate value (
As for Gerber, Guangxi Yulin, and Yu Xing (
With respect to other factors data submitted by COFCO's affiliated producer, Fujian Zishan, and Guangxi Hengxian, we made adjustments to their submitted data which we deemed were necessary based on comments submitted by the petitioner in this review (
In accordance with section 773(c) of the Act, we calculated NV based on the factors of production reported by the respondents for the POR. To calculate NV, we multiplied the reported per-unit factor quantities by publicly available Indian surrogate values (except where noted below). In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data.
Except where discussed below, we valued raw material inputs using February 2003-January 2004 weighted-average Indian import values derived from the
Furthermore, with regard to the Indian import-based surrogate values, we have disregarded prices that we have reason to believe or suspect may be subsidized. We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to conclude that there is reason to believe or suspect all exports to all markets from these countries are subsidized.
Finally, imports that were labeled as originating from an “unspecified” country were excluded from the average value, because the Department could not be certain that they were not from either an NME or a country with general export subsidies.
To value fresh mushrooms and rice straw, we used an April 2002-March 2003 average price based on purchase data contained in the 2003-2004 financial report of Premier Explosives Ltd. (“Premier”).
To value cow manure and general and/or wheat straw, we used an average price based on data contained in the 2003-2004 financial reports of Agro Dutch Foods, Ltd. (“Agro Dutch”) and Flex Foods Ltd. (“Flex Foods”) (
To value spawn and chicken manure, we used an average price based on data contained in the 2003-2004 financial reports of Agro Dutch, Flex Foods Ltd., and Premier. We did not use the spawn value data obtained from the National Research Center for Mushroom (which was established by the Indian Council of Agricultural Research), because data on the record indicates that this research center is fully financed by the Indian government, and its spawn price is not determined by market forces.
For those respondents which used mother spawn, we also used the average spawn price to value mother spawn from Agro Dutch, Flex Foods, and Premier, because we were unable to obtain publicly available information which contained a price for mother spawn.
To value rice straw, we used price data contained in Premier's 2003-2004 financial report because no such data was available from the other financial reports on the record and we could not obtain any other Indian surrogate values for this input.
To value wheat, we used price data contained in Flex Foods' 2003-2004 financial report because no such data was available from the other financial reports on the record and we could not obtain any other Indian surrogate values for this input.
To value super phosphate, we used price data contained in Flex Foods' 2002-2003 financial report because no such data was available from the other financial reports on the record and we could not obtain any other Indian surrogate values for this input.
To value soil, we used July 2003 price data from two U.S. periodicals,
For disodium stannous citrate, we used a February 2003-January 2004 average import value for sodium citrate from the
To value monosodium glutamate, we used a January 2003-December 2003 weighted-average value based on imports of these inputs into the Indonesia from
For those respondents which only purchased tin cans used in the production of preserved mushrooms during the POR, we valued tin cans using the can-purchase-specific price data from the May 21, 2001, public version response submitted by Agro Dutch in the 2nd antidumping duty administrative review of certain preserved mushrooms from India, and derived per-unit, can-size-specific prices using the petitioner's methodology contained in its August 16, 2004, PAI submission.
For those respondents (
Although Jiufa reported its affiliate's factors used to produce cans, we did not value the factors it reported for producing cans because a collapsing analysis pursuant to 19 CFR 351.401(f) was not warranted in this instance. Instead, we valued this company's reported can factor.
To value water, we used the water tariff rate for the greater Municipality of Mumbai, India (“Mumbai Municipality”), that was formerly available on the Municipal Corporation of Greater Mumbai's Web site and was used in the
We valued electricity using the 2000 total average price per kilowatt hour for “Electricity for Industry” as reported in the International Energy Agency's (“IEA” 's) publication,
We added an amount for loading and additional transportation charges associated with delivering coal to the factory based on June 1999 Indian price data contained in the periodical
To value diesel fuel, we used 2002 Indian price data from IEA's
To value steam, we used January-June 1999 Indian price data from
Section 351.408(c)(3) of the Department's regulations requires the use of a regression-based wage rate. Therefore, to value the labor input, the Department used the regression-based wage rate for the PRC published by Import Administration on our website. The source of the wage rate data is the
Certain respondents (
To value packing materials, we used February 2003-January 2004 weighted-average Indian import values derived from
To value PRC inland freight for inputs shipped by truck, we used Indian freight rates published in the October 2003-January 2004 issues of
To value PRC inland freight for inputs shipped by train, we used price quotes published in the July 2001
To value factory overhead (“FOH”) and selling, general & administrative (“SG&A”) expenses, and profit, we used data from the 2003-2004 financial reports of Agro Dutch Foods, Ltd. (“Agro Dutch”) and Flex Foods Ltd. (“Flex Foods”). These Indian companies are producers of the subject merchandise based on data contained in each Indian company's financial reports.
We did not use the 2003-2004 financial data obtained for Premier to value factory overhead, SG&A or profit, because although this company produces the subject merchandise, its operations, unlike Agro Dutch and Flex Foods, are not limited to the production of mushrooms and other similar agricultural products.
Where appropriate, we did not include in the surrogate overhead and SG&A calculations the excise duty amount listed in the financial reports. We made certain adjustments to the ratios calculated as a result of reclassifying certain expenses contained in the financial reports. For a further discussion of the adjustments made,
In accordance with section 782(i)(2) of the Act and 19 CFR 351.307, the Department will conduct a complete and thorough verification of a number of respondents in this review, including, but not limited to, Gerber, Green Fresh (with respect to its EP sales and factors of production data used in our analysis), Jiufa, and XITIC. With respect to Gerber and Green Fresh, we will ascertain whether they continued to engage in practices which resulted in the application of adverse facts available in the prior two administrative reviews.
We preliminarily find that the following margins exist for the following exporters under review during the period February 1, 2003, through January 31, 2004:
We will disclose the calculations used in our analysis to parties to this proceeding within five days of the date of publication of this notice. Any interested party may request a hearing within 30 days of publication of this notice. If requested, a hearing will be held on May 16, 2005.
Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: (1)The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
Issues raised in the hearing will be limited to those raised in case briefs and rebuttal briefs. Case briefs from interested parties may be submitted not later than May 2, 2005, pursuant to 19 CFR 351.309(c). Rebuttal briefs, limited to issues raised in the case briefs, will be due not later than May 9, 2005, pursuant to 19 CFR 351.309(d). Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument. Parties are also encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited.
The Department will issue the final results of this administrative review,
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP within 15 days of publication of the final results of this review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer- or customer-specific
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer or customer-specific assessment rate calculated in the final results of this review is above
For entries of the subject merchandise during the POR from companies not subject to these reviews, we will instruct CBP to liquidate them at the cash deposit rate in effect at the time of entry. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The following deposit requirements will be effective upon publication of the final results of the administrative review for all shipments of certain preserved mushrooms from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for COFCO, Gerber, Green Fresh, Guangxi Hengxian, Guangxi Yulin, Jiufa, and XITIC, will be the rates determined in the final results of review (except that if a rate is
These requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice is in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce is conducting an administrative review of the antidumping duty order on stainless steel bar from India with respect to Chandan Steel Ltd. This review covers sales of stainless steel bar from India to the United States during the period February 1, 2003, through January 31, 2004. We have preliminarily found that sales have been made below normal value by Chandan Steel Ltd. We invite interested parties to comment on these preliminary results.
We are also rescinding this administrative review with respect to Ferro Alloys Corp., Ltd.; Isibars Ltd.; Mukand, Ltd.; Venus Wire Industries Ltd; and the Viraj Group, Ltd. (Viraj Alloys, Ltd.; Viraj Forgings, Ltd.; and Viraj Impoexpo, Ltd.).
Melanie Brown or Julie Santoboni, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4987 and (202) 482-4194, respectively.
On February 3, 2004, the Department of Commerce (the Department) published a notice in the
The Department received requests for an administrative review from Chandan Steel Ltd. (Chandan); Ferro Alloys Corp., Ltd. (FACOR); Isibars Ltd. (Isibars); Mukand, Ltd. (Mukand); Venus Wire Industries Limited (Venus); and Viraj Alloys, Ltd., Viraj Forgings, Ltd.
The Department initiated an administrative review of the antidumping duty order on SSB from India for the above-named companies on March 26, 2004.
On April 15, 2004, the petitioners (
On May 3, 2004, we received a response to section A of the Department's questionnaire from Chandan. Chandan reported that it only had export sales of stainless steel bright bar (SSBB), and that its home market sales of stainless steel hot-rolled bar (SSHR) were less than 5 percent of the volume of its U.S. sales of SSBB. In addition, Chandan reported preliminary data on SSB sales made to its largest third-country markets. On May 18, 2004, Chandan submitted a response to sections B and C of the Department's questionnaire, containing complete sales databases for Chandan's largest third-country markets: Australia, Belgium, and Brazil. On June 14, 2004, the petitioners filed comments on Chandan's sections A-C responses, and recommended that the Department select Belgium as the third-country comparison market for normal value (NV), alleging that Chandan made more sales to Belgium than to Australia of merchandise identical to merchandise it sold in the United States.
On June 29, 2004, we issued a supplemental questionnaire to Chandan requesting the quantity and value of its home market sales of SSBB and SSHR, and the certifications required by 19 CFR 351.303(g). We received Chandan's response on July 6, 2004. In that response, Chandan reported that its home market sales of SSHR were of defective merchandise and that it did not sell defective merchandise in its export markets. On July 12, 2004, the Department issued an additional supplemental questionnaire requesting that Chandan revise its home market data and report its home market sales of SSHR. We received Chandan's revised home market sales data on July 27, 2004.
On August 11, 2004, in response to Chandan's revised home market data, the petitioners alleged that Chandan's home market sales of SSHR were unsuitable for comparison purposes because the bar was defective and fundamentally different from the bar sold in the United States. As a result, the petitioners reiterated their recommendation that Belgium be selected as the comparison market. Simultaneously, they made a timely allegation that Chandan's third-country sales were made below the cost of production (COP).
On August 17, 2004, Chandan requested that the Department exclude certain stainless steel flat-bars from the antidumping duty order. The petitioners submitted comments in opposition to Chandan's scope exclusion request on August 19, 2004.
On September 24, 2004 we selected Australia as the third-country comparison market after determining that Chandan's home market was not viable.
Also, on September 24, 2004, the Department found that, because of the complexity of assessing home market viability, choosing the appropriate third-country market, and the late filing of a cost allegation by the petitioners, it was not practicable to complete this review within the time period prescribed. Accordingly, we extended the time limit for completing the preliminary results of this review to no later than February 28, 2005, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.213(h)(2).
We found that the petitioners' allegation of sales below cost provided a reasonable basis to believe or suspect that Chandan's comparison market sales were made at prices below COP, within the meaning of section 773(b) of the Act. Consequently, on October 5, 2004, we initiated a COP investigation of Chandan's comparison market sales during the period of review (POR).
On October 1, 2004, we issued an additional supplemental questionnaire to Chandan addressing issues raised by sections A-C of its response. We received Chandan's supplemental A-C and section D questionnaire responses on November 12, 2004. Chandan's November 12, 2004 response was severely deficient; as a result, we requested a revised submission that Chandan submitted on November 16, 2004.
In the November 16, 2004 submission, the law firm that had been certifying and filing Chandan's submissions stated that it did not represent Chandan in the current administrative review. On November 22, 2004, we requested clarification of the relationship between the law firm and Chandan in the current proceeding.
The Department issued additional supplemental questionnaires in December 2004 and January 2005. We received responses between December 2004 and February 2005.
On January 28, 2005, the petitioners commented on Chandan's January 5, 2005, response. In those comments, the petitioners noted the following problems: (1) Failure to provide adequate cost information on a finish-specific basis; (2) failure to provide clear information about Chandan's affiliate in the United States, Chandan USA; and (3) failure to provide importer of record and entered value information. The petitioners argued that, due to these deficiencies, the Department should either use partial facts available, adverse facts available or the Belgian sales as the
Imports covered by the order of shipments of SSB. SSB means articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. SSB includes cold-finished SSBs that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut-to-length flat-rolled products (
The SSB subject to these reviews is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
On August 9, 2004, we received a scope exclusion request from Chandan. In that request, Chandan sought to exclude certain stainless steel flat-bars from the scope. Specifically, Chandan sought to exclude stainless steel hot rolled flat-bars with sizes ranging from
On August 19, 2004, the petitioners requested that the Department reject Chandan's exclusion request because Chandan failed to prove the necessary elements for a scope exclusion ruling as outlined in 19 CFR 351.225(c). Furthermore, the petitioners provided evidence from domestic producers of stainless steel hot rolled flat-bars that such bars are produced in the United States, in direct contradiction to Chandan's claims.
On February 11, 2005, we returned Chandan's scope exclusion request, with instructions to refile, because it failed to follow the scope exclusion requirements outlined in section 351.225(c) of the Department's regulations.
The period of review is February 1, 2003, through January 31, 2004.
As noted above in the “Background” section of this notice, Venus, Mukand, FACOR, Isibars, and the Viraj Group withdrew their requests for an administrative review on April 19, 2004, and May 3, 2004. Because the petitioners did not request an administrative review for any of these companies and the requests to withdraw were made within the time limit specified under 19 CFR 351.213(d)(1), we are rescinding this administrative review as it pertains to these companies.
To determine whether sales of SSB by Chandan to the United States were made at less than NV, we compared export price (EP) and constructed export price (CEP), as appropriate, to the NV, as described in the “Export Price,” “Constructed Export Price,” and “Normal Value” sections of this notice.
Pursuant to section 777A(d)(2) of the Act, we compared the EPs and CEPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
When making comparisons in accordance with section 771(16) of the Act, we considered all products produced by Chandan as described in the “Scope of the Order” to be the foreign like product. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by Chandan in the following order: general type of finish, grade, remelting process, type of final finishing operation, shape, and size.
Chandan reported that all of its sales of SSB to the United States during the POR were EP sales. According to Chandan, these sales were made to unaffiliated customers in the United States prior to the date of importation. However, the record is unclear with respect to Chandan's U.S. sales distribution processes to these companies, the identity of all the companies involved, and the relationship, if any, to Chandan. The record does indicate, however, that Chandan made certain U.S. sales through an affiliate in the United States,
For these preliminary results, we are treating sales through Chandan's U.S. affiliate as CEP sales. As noted above, Chandan has an affiliated entity (Chandan USA) in the United States that appears to be the entity that makes the first sale in the United States to an unaffiliated customer, and Chandan appears to incur expenses that are related to economic activity in the United States. We intend to seek further information about these sales prior to our final results of review.
We calculated EP, in accordance with section 772(a) of the Act, for those sales Chandan made directly to unaffiliated purchasers in the United States prior to the date of importation. We based EP on packed, CFR prices to unaffiliated purchasers in the United States.
We made deductions from the EP starting price, where appropriate, for foreign inland freight from the plant/warehouse to the port of export, marine insurance, and international freight in accordance with section 772(c)(2) of the Act.
As stated above, we treated those sales made through Chandan's U.S. affiliate, Chandan USA, as CEP sales. We calculated CEP in accordance with 772(b) of the Act, based on packed, CIF and CFR prices to Chandan's unaffiliated customers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight from the plant/warehouse to the port of export, marine insurance, and international freight. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activity in the United States including: commissions, credit expenses, and extra expenses incurred in the United States. Additionally, we made an adjustment for profit in accordance with section 772(d)(3) of the Act.
Because Chandan's home market sales were of defective merchandise, we based NV on sales to one of Chandan's third country markets.
Citing 19 CFR 351.404(e)(1), the petitioners have argued that Belgium, not Australia, is the most appropriate third-country comparison market. The petitioners claim that the Department erred in selecting Australia as the third-country comparison market when it determined the number of potential matches in the Australian market by examining size ranges, rather than the number of matches of identical size. The petitioners assert that using a specific size would result in a higher percentage of identical matches in Belgium. Furthermore, the petitioners argue that the Department must calculate Chandan's NV using identical model matches because, when looking at the most recent third-country databases supplied by Chandan, there still are significant differences regarding the product characteristics. The petitioners state that, assuming that size ranges are an adequate measure for product matching, there are significantly more similar sales matches based on grade, shape, finish, and diameter between sales to the United States and to Belgium than there are between sales to the United States and sales to Australia or Brazil.
We considered all the criteria under 19 CFR 351.404(e) in determining the appropriate third-country comparison market including: (1) Whether the foreign like product exported to a particular third country is more similar to the subject merchandise exported to the United States than is the foreign like product exported to other third countries; (2) whether the volume of sales to a particular third country is larger than the volume of sales to other third countries; and (3) other factors as the Secretary considers appropriate.
We found that Australia is Chandan's largest third-country market by volume. When we compared the sales made to the United States to those made to the third-country markets reported by Chandan, we were able to identify a greater number of similar matches of U.S. sales to Australian sales, than to Belgian sales. This is the same approach the Department uses in its margin analysis. Therefore, in accordance with 19 CFR 351.404(e), we have chosen Australia as the appropriate third-country market.
As stated above in the “Background” section of this notice, the petitioners submitted a below-cost allegation. We found that the petitioners' allegation provided a reasonable basis to believe or suspect that Chandan's third-country sales were made at prices below the COP, pursuant to section 773(b)(2)(A)(i) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for general and administrative expenses (G&A), and interest expenses. For purposes of these preliminary results, we have relied on the COP data submitted by Chandan. Before the final results, we intend to seek additional information from Chandan about its finishing costs.
On a product-specific basis, we compared the weighted-average COP to the comparison market sales of the foreign like product during the POR, as required under section 773(b) of the Act, in order to determine whether sales had been made at prices below the COP. For purposes of this comparison, we used COPs exclusive of selling and packing expenses. The comparison market prices were exclusive of any applicable movement charges, commissions, indirect selling expenses, and packing expenses. In determining whether to disregard home market sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether such sales were made: (1) Within an extended period of time in substantial quantities; and (2) at prices which did not permit the recovery of costs within a reasonable period of time.
Pursuant to section 773(b)(2)(C), where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(2)(B) and (C) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) and (2)(D) of the Act.
We found that, for certain specific products, more than 20 percent of Chandan's comparison market sales were at prices less than the COP. In addition, such sales were made within an extended period of time and did not provide for the recovery of costs within a reasonable period of time. Therefore, we excluded these sales and used the remaining above-cost sales as the basis for determining NV in accordance with section 773(b)(1) of the Act.
In accordance with section 773(a)(1)(B)(i), to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales, (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if an NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
Chandan reported one level of trade in both U.S. and third-country markets. We found no difference between the relevant selling activities of the CEP LOT and the third-country LOT. In addition, we found that the only difference in selling activities between the third-country LOT and the EP LOT was that there were commissions incurred on some U.S. sales but none on third-country sales. This difference was not substantial. Therefore, we find that selling activities were performed at the same relative level of intensity in both markets, and that the EP and CEP levels of trade were the same as the third-country LOT. Accordingly, all sales comparisons are at the same LOT for Chandan and an adjustment pursuant to section 773(a)(7)(A) is not warranted.
We based NV on packed FOB, CIF, and CFR prices to Chandan's third-country unaffiliated customers. We made deductions from the starting price, where appropriate, for movement expenses in accordance with section 773(a)(6)(B)(ii) of the Act, including: Foreign inland freight from the plant/warehouse to the port of export, marine insurance, and international freight.
We also reduced the starting price for comparison market packing costs incurred on the comparison market sales, in accordance with section 773(a)(6)(B)(i), and increased NV to include U.S. packing expenses in accordance with section 773(a)(6)(A). We made circumstance-of-sale adjustments for credit expenses, where appropriate, pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. In addition, we made an adjustment to NV to account for commissions paid on some U.S. sales but not on sales in the third country, in accordance with 19 CFR 351.410(e). As the offset for U.S. commissions, we used third-county indirect selling expenses to the extent of the lesser of the commission or the indirect selling expenses. In addition, we made adjustments to NV, where appropriate, for differences in costs attributable to differences in the physical characteristics of the merchandise, pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as reported by the Federal Reserve Bank.
As provided in section 782(i) of the Act, we intend to verify all information to be used in making our final results.
We preliminarily find the following weighted-average dumping margin:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice. Interested parties may request a hearing within 30 days of publication. Any hearing, if requested, will be held two days after the date rebuttal briefs are filed. Pursuant to 19 CFR 351.309, interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. The Department will issue the final results of the administrative review, including the results of its analysis of issues raised in any such written comments, within 120 days of publication of these preliminary results.
Upon completion of the administrative review, the Department shall determine, and U.S. Customs and Border Protection shall assess, antidumping duties on all appropriate entries. According to 19 CFR 351.212(b)(1), for those sales with a reported entered value, we will calculate importer-specific assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of those sales. Chandan did not to report entered value for the importers it identified. Therefore, to estimate entered value, we deducted from gross unit price international freight, marine insurance, and document clearing expenses. If, at the final results, we find that determining assessment rates on an
To calculate the cash deposit rate for each producer and/or exporter included in this administrative review, we divided the total dumping margins for
Further, the following deposit requirements will be effective for all shipments of SSB from India, entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to a request by Sungkwang Bend Company Ltd., (SKBC), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order of certain stainless steel butt weld pipe fittings from Korea. The review covers one firm, SKBC. The period of review (POR) is February 1, 2003, through January 31, 2004.
We preliminarily determine that sales of stainless steel butt weld pipe fittings from Korea have been made below the normal value (NV) for SKBC. If these preliminary results are adopted in our final results of administrative review, we will instruct Customs and Border Protection (CBP) to assess antidumping duties based on the difference between the export price (EP) or constructed export price (CEP) and NV. Interested parties are invited to comment on these preliminary results. Parties who submit argument in these proceedings are requested to submit with the argument: (1) A statement of the issues, (2) a brief summary of the argument, and (3) a table of authorities.
Michael J. Heaney, or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 3520, Washington, DC 20230; telephone (202) 482-4475 or (202) 482-0649.
On February 23, 1993, the Department published the antidumping duty order on stainless steel butt weld pipe fittings from Korea.
On April 7, 2004, the Department issued sections A, B, and C of the antidumping questionnaire to SKBC. SKBC filed its response to section A of our questionnaire on May 12, 2004. On May 23, 2004, SKBC filed its response to sections B and C of our questionnaire.
The Department issued an additional supplemental questionnaire to SKBC on August 7, 2004. SKBC filed its response to our August 7, 2004, questionnaire on September 2, 2004.
On August 3, 2004, the Department extended the time limit for issuance of the preliminary results of the administrative review to February 28, 2005.
The products covered by this order are certain welded stainless steel butt-weld pipe fittings (pipe fittings), whether finished or unfinished, under 14 inches in inside diameter. Pipe fittings are used to connect pipe sections in piping systems where conditions require welded connections. The subject merchandise can be used where one or more of the following conditions is a factor in designing the piping system: (1) Corrosion of the piping system will occur if material other than stainless steel is used; (2) contamination of the material in the system by the system itself must be prevented; (3) high temperatures are present; (4) extreme low temperatures are present; (5) high pressures are contained within the system.
Pipe fittings come in a variety of shapes, and the following five are the most basic: “elbows,” “tees,” “reducers,” “stub ends,” and “caps.” The edges of finished fittings are beveled. Threaded, grooved, and bolted fittings are excluded from this review. The pipe fittings subject to this review are classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this order is dispositive.
As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), we verified sales information provided
In accordance with section 771(16) of the Act, we considered all stainless steel butt-weld pipe fittings covered by the “Scope of the Antidumping Duty Order” section of this notice,
We relied on five characteristics to match U.S. sales of subject merchandise to comparison sales of the foreign like product: type, grade, seam, size, and schedule. Where there were no sales of identical merchandise in the home market to compare to the U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the physical characteristics and reporting instructions listed in the antidumping questionnaire. We performed a difference in merchandise (DIFMER) test to ensure that all comparison matches had no more than a 20% difference in variable cost of manufacture to the merchandise sold in the United States.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the home market at the same level of trade (LOT) as EP or the CEP. The NV LOT is that of the starting-price sales in the home market or, when NV is based on constructed value (CV), that of the sales from which we derive selling, general and administrative (SG&A) expenses and profit. For CEP, it is the level of the constructed sale from the exporter to an affiliated importer after the deductions required under section 772(d) of the Act.
To determine whether NV sales are at a different LOT than CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP-offset provision).
SKBC reported one LOT in the home market, explaining that home market sales to distributors and end-users were made at the same level of trade. SKBC further submitted that it provided substantially the same level of customer support on its EP sales as it provided on its home market sales to distributors and end-users. We found that the selling functions (which included customer correspondence, order review and approval, post sale service and warranties, technical advice and services, advertising, freight and delivery arrangement, and ascertaining credit worthiness) to be virtually identical for home market sales to distributors and end-users. We also found that SKBC provided virtually the same level of customer support services on its U.S. EP sales as it did on its home market sales. (
In its May 26, 2004, response, SKBC indicated that its U.S. subsidiary (Sungkwang Bend America (SKBA)) performed many of the same selling functions on SKBC's CEP sales that SKBC performed on its home market sales. SKBC also indicated that there was one LOT for CEP and that the CEP LOT was different than the home market LOT. We compared CEP sales (after deductions made pursuant to section 772(d) of the Act) to home market sales. We determined there were fewer services such as customer correspondence, order review and approval, post sales service/warranties, technical advice, advertising, freight delivery arrangement, credit services and import document clearance, performed by SKBC on its CEP sales than on SKBC's home market sales.
Based on our analysis of the record evidence on selling functions performed for the CEP LOT and the home market LOT, we determined the CEP and the starting price of home market sales represent different stages in the marketing process, and are thus at different LOTs within the meaning of 19 CFR 351.412. Therefore, when we compared CEP sales to home market sales, we examined whether an LOT adjustment may be appropriate. In this case, SKBC sold at one LOT in the home market; thus, there is no basis upon which to determine whether there is a pattern of consistent price differences between LOTs. Further, we do not have the information which would allow us to examine pricing patterns of SKBC's sales of other similar products, and there are no other respondents or other record evidence on which such an analysis could be based.
Because the data available do not provide an appropriate basis for making an LOT adjustment and the LOT of home market sales is at a more advanced stage than the LOT of the CEP sales, a CEP offset is appropriate in accordance with section 773(a)(7)(B) of the Act, as claimed by SKBC. We based the amount of the CEP offset on the amount of home market indirect selling expenses, and limited the deduction for home market indirect selling expenses to the amount of indirect selling expenses deducted from CEP in accordance with section 772(d)(1)(D) of the Act. We applied the CEP offset to NV, whether based on home market prices or CV.
To determine whether sales of subject merchandise made by SKBC were made at less than fair value, we compared the EP or CEP, to the NV, as described below. Pursuant to section 777A(d)(2) of the Act, we compared the EP or CEP of individual U.S. transactions to the monthly weight-averaged NV of the foreign like product.
Section 351.401(i) of the Department's regulations states that the Department normally will use date of invoice, as recorded in the exporter's or producer's records kept in the ordinary course of
Section 772(a) of the Act defines EP as “the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States * * *.,” as adjusted under subsection (c). Section 772(b) of the Act defines CEP as “the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter * * *.,” as adjusted under subsections (c) and (d). For purposes of this administrative review, SKBC classified all of the U.S. sales that it shipped directly from Korea to the United States as EP sales. SKBC reported all sales that were invoiced through its U.S. subsidiary SKBA as CEP transactions. For these preliminary results, we have accepted these classifications. The merchandise shipped directly to unaffiliated distributors in the U.S. market was not sold through an affiliated U.S. importer. We, therefore, preliminarily determine that these transactions were EP sales. We have classified as CEP transactions the merchandise invoiced through SKBA because these sales were “sold in the United States” within the meaning of the Act.
We calculated EP in accordance with section 772(a) of the Act. We based EP on packed prices to customers in the United States. We made deductions for billing adjustments and rebates. We also made adjustments for the following movement expenses: foreign inland freight, international freight, marine insurance, brokerage charges, U.S. inland freight, and U.S. Customs duties.
We calculated CEP in accordance with section 772(b) of the Act for those sales to the first unaffiliated purchaser that took place after importation into the United States. We based CEP on packed prices to unaffiliated purchasers in the United States. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included foreign inland freight, international freight, marine insurance, brokerage charges, U.S. inland freight and U.S. customs duties. As further directed by section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
In accordance with section 773(a)(1)(C) of the Act, to determine whether there was sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
We made adjustments, where applicable, for movement expenses (consisting of inland freight) in accordance with section 773(a)(6)(B) of the Act. In accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, we made circumstance-of-sale adjustment for imputed credit, warranty, bank charges, and technical service expenses. We made deductions for billing adjustments and rebates. In addition, we made adjustments for differences in cost attributable to differences in the physical characteristics of the merchandise (
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank, in accordance with section 773A(a) of the Act.
As a result of our review, we preliminarily find the weighted-average dumping margin for the period February 1, 2003, through January 31, 2004, to be as follows:
The Department will disclose calculations performed within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we calculated importer-specific ad valorem assessment rates for the merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales made during the POR to the total customs value of the sales used to calculate those duties. This rate will be assessed uniformly on all entries of that particular importer made during the POR. The Department will issue appropriate appraisement instructions directly to CBP upon completion of the review.
Furthermore, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of stainless steel butt weld pipe fittings from Korea entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act:
(1) The cash deposit rate for the reviewed company will be the rate established in the final results of review;
(2) For any previously reviewed or investigated company not listed above, the cash deposit rate will continue to be the company-specific rate published in the most recent period;
(3) If the exporter is not a firm covered in this review or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and
(4) If neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will be the “all others” rate from the investigation (21.2 percent).
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
March 7, 2005.
Sebastian Wright or Sean Carey, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5254 and (202) 482-3964, respectively.
The Department of Commerce (the Department) published an antidumping duty order on stainless steel sheet and strip in coils from France on July 27, 1999 (
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930 (the Act), the Department shall issue preliminary results in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order. The Act further provides, however, that the Department may extend the deadline for completion of the preliminary results of a review from 245 days to 365 days if it determines that it is not practicable to complete the preliminary results within the 245-day period.
Section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations allow the Department to extend the deadline for the preliminary results to a maximum of 365 days from the last day of the anniversary month of the order. For the reasons noted above, we are extending the time for the completion of preliminary results until no later than August 1, 2005, which is the next business day after 365 days from the last day of the anniversary month of the date of publication of the order. The deadline for the final results of this administrative review continues to be 120 days after the publication of the preliminary results.
This notice is issued and published in accordance with section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting administrative reviews of the countervailing duty (CVD) orders on low enriched uranium from Germany, the Netherlands, and the United Kingdom for the period January 1, 2003, through December 31, 2003. For information on the net subsidy for the reviewed companies, please see the “Preliminary Results of Reviews” section of this notice. Interested parties are invited to comment on these preliminary results. (
March 7, 2005.
Darla Brown or Robert Copyak at (202) 482-2786, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On February 13, 2002, the Department published in the
On April 13, 2004, the Department issued a questionnaire to the Government of the United Kingdom (UKG) and Urenco (Capenhurst) Ltd. (UCL), Urenco's producer of subject merchandise in the United Kingdom. Also on April 13, 2004, the Department issued a separate questionnaire to the Government of the Netherlands (GON) and Urenco Nederland B.V. (UNL), Urenco's producer of subject merchandise in the Netherlands. On April 16, 2004, the Department issued a questionnaire to the Government of Germany (GOG) and Urenco Deutschland GmbH (UD), Urenco's producer of subject merchandise in Germany.
We received questionnaire responses from the GON, the UKG, UCL, and UNL on May 20, 2004, from the GOG on May 14, 2004, and from UD on May 24, 2004.
On October 19, 2004, we issued an extension of the due date for these preliminary results from October 31, 2004, to February 28, 2005.
In accordance with 19 CFR 351.213(b), these reviews cover only those producers or exporters for which a review was specifically requested. The companies subject to these reviews are UD, UNL, UCL, Urenco Ltd., and Urenco Inc. These reviews cover four programs.
The product covered by these orders is all low enriched uranium (LEU). LEU is enriched uranium hexafluoride (UF
Certain merchandise is outside the scope of these orders. Specifically, these orders do not cover enriched uranium hexafluoride with a U
Also excluded from these orders is LEU owned by a foreign utility end-user and imported into the United States by or for such end-user solely for purposes of conversion by a U.S. fabricator into uranium dioxide (UO
The merchandise subject to these orders is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2844.20.0020. Subject merchandise may also enter under 2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
The period of review (POR) for these administrative reviews is January 1, 2003, through December 31, 2003.
In our
Under section 351.524(d)(2) of the Department's regulations, we will presume the allocation period for non-recurring subsidies to be the average useful life (AUL) of renewable physical assets for the industry concerned, as listed in the Internal Revenue Service's (IRS) 1977 Class Life Asset Depreciation Range System (IRS Tables), as updated by the Department of the Treasury. The presumption will apply unless a party claims and establishes that these tables do not reasonably reflect the AUL of the renewable physical assets for the company or industry under investigation, and the party can establish that the difference between the company-specific or country-wide AUL for the industry under investigation is significant. In this instance, however, the IRS Tables do not provide a specific asset guideline class for the uranium enrichment industry.
In the
In the
Assistance under this program was provided for in two agreements and two sets of guidelines: the “Financing Agreement,” the “Operating Agreement,” the “Terms and Conditions for Allocations on a Cost Basis to Companies in Industry for Research and Development Projects” (BKFT75), and the “Auxiliary Terms and Conditions for Grants on a Cost Basis from the Federal Ministry for Research and Development to Companies in Industry for Research and Development Projects” (NKFT88), respectively. According to Article 4, Section 6, of the “Financing Agreement,” the funds provided to Uranit under this agreement had contingent repayment obligations. The funds were repayable within five years of disbursement, contingent upon the company's earnings. If the funds were not repaid within five years, then the repayment obligation lapsed. The funds provided under the “Operating Agreement” were not repayable. Uranit also received funds for laser R&D pursuant to the terms and conditions of the BKFT75 and NKFT88.
In the
In the first administrative reviews, we determined that grant disbursements made under this program prior to 1992, including the 1985 disbursement made under the “Financing Agreement,” no longer provided a benefit during those reviews” POR,
In
Because the grant disbursements under this program were made between 1980 and 1993, the 10-year allocation period for each grant disbursement expired prior to the POR. Therefore, we preliminarily determine that each of these grants has been fully allocated prior to the POR, and, therefore, no benefit was received under this program during the POR.
In accordance with the “Risk Sharing Agreement” (RSA) and the “Profit Sharing Agreement” (PSA) signed between the GOG and Uranit, the GOG agreed to provide funds to UD to support the promotion of an uranium enrichment industry. These two agreements were signed on July 18, 1975, and the GOG provided a total of DM 338.3 million from 1975 to 1993 to Uranit in support of the Treaty of Almelo's goal of creating and promoting the enrichment industry.
In 1987, Uranit signed a new agreement with the GOG. This
In the
In the
In
In the
In the
We preliminarily determine that UCL neither received any subsidies nor benefitted from any subsides during the POR.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for UD, UNL, UCL, Urenco Ltd., and Urenco Inc, the only producers/exporters subject to these administrative reviews, for the POR,
If the final results of these reviews remain the same as these preliminary results, the Department intends to instruct U.S. Customs and Border Protection (CBP), within 15 days of publication of the final results of these reviews, to liquidate without regard to countervailing duties all shipments of subject merchandise from the producers/exporters under review, entered, or withdrawn from warehouse, for consumption during the POR. Should the final results of these reviews remain the same as these preliminary results, the Department also will instruct CBP not to collect cash deposits of estimated countervailing duties on all shipments of the subject merchandise from the reviewed entity, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of these reviews.
Because the Uruguay Round Agreements Act (URAA) replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the publication of these preliminary results. Rebuttal briefs, which are limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs, unless otherwise specified by the Department. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs.
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of these administrative reviews, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing.
These administrative reviews and this notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty order on low enriched uranium from France for the period January 1, 2003, through December 31, 2003. For information on the net subsidy for the reviewed company, please see the “Preliminary Results of Review” section of this notice. Interested parties are invited to comment on these preliminary results. (
March 7, 2005.
Kristen Johnson at (202) 482-4793, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4014, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On February 13, 2002, the Department published in the
On April 21, 2004, the Department issued a questionnaire to the Government of France (GOF) and Eurodif/COGEMA. On June 1, 2004, the Department received questionnaire responses from the GOF and Eurodif/COGEMA. On October 19, 2004, the Department published in the
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters for which a review was specifically requested. The company subject to this review is Eurodif/COGEMA. This review covers two programs.
The product covered by this order is all low enriched uranium (LEU). LEU is enriched uranium hexafluoride (UF6) with a U
Certain merchandise is outside the scope of this order. Specifically, this order does not cover enriched uranium hexafluoride with a U
Also excluded from this order is LEU owned by a foreign utility end-user and imported into the United States by or for such end-user solely for purposes of conversion by a U.S. fabricator into uranium dioxide (UO
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2844.20.0020. Subject merchandise may also enter under 2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
The POR for which we are measuring subsidies is January 1, 2003, through December 31, 2003.
Eurodif was formed in 1973, by French and foreign government agencies to provide a secure source of LEU in order to facilitate the development of nuclear energy programs in participating countries. During the POR, Eurodif was 44.65 percent-owned by COGEMA, which itself is principally owned by a subsidiary of the Commissariat d'Energie Atomique, an agency of the GOF. Further, Eurodif was 25 percent-owned by SOFIDIF, a French company that is 60 percent-owned by COGEMA, thereby effectively placing COGEMA's ownership of Eurodif at approximately 60 percent during the POR. The remaining major shareholders of Eurodif during the POR were ENUSA, an entity of the Spanish government, SYNATOM, an entity of the Belgian government, and ENEA, an entity of the Italian government.
Eurodif provides LEU to Electricite de France (EdF), a wholly owned French government agency that supplies, imports, and exports electricity. EdF is the major supplier of electricity in France, and is regulated by the Gas, Electricity, and Coal Department of the Ministry of Industry and the Budget and Treasury Departments of the Ministry of Finance. To date, EdF has entered into three long-term contracts with Eurodif to secure LEU. The first contract was negotiated in 1975; Eurodif began enrichment at its Georges-Besse gaseous diffusion facility in 1979. Eurodif and EdF entered into a subsequent contract in 1995, under which the POR purchases were made.
In the
Under section 771(5)(E)(iv) of the Act, a countervailable benefit may be provided by a government's purchase of a good for “more than adequate remuneration.” Pursuant to section 771(5)(E)(iv) of the Act, the adequacy of remuneration will be determined in relation to the prevailing market conditions for the good being purchased in the country which is subject to the review. Therefore, in order to determine whether the prices paid by EdF constitute “more than adequate remuneration,” we compared the prices paid by EdF to Eurodif with the prices paid by EdF to its other suppliers.
Due to the difference in the pricing structure between EdF and Eurodif, as compared with the pricing structure between EdF and its other suppliers, it is necessary to make certain adjustments for the comparison. Unlike most other customers, EdF provides its own energy for Eurodif to use when producing LEU. Beginning in 2002, EdF started to pay Eurodif in energy for the energy that Eurodif uses to produce EdF's LEU. Eurodif charges EdF, however, for the operational costs associated with the production of the LEU. As EdF does not supply electricity to its other LEU suppliers, these suppliers charge EdF a single price per separative work unit (SWU).
As part of the arrangement for obtaining LEU, customers often provide an amount of natural uranium equal to that which theoretically went into the LEU they are purchasing. The record does not contain information on the value of the natural uranium provided by EdF or other customers to Eurodif. In the “Issues and Decision Memorandum from Bernard T. Carreau, Deputy Assistant Secretary for AD/CVD Enforcement II to Faryar Shirzad, Assistant Secretary for Import Administration concerning the Final Affirmative Countervailing Duty Determination: Low Enriched Uranium from France—Calendar Year 1999” (
In order to determine whether a benefit was provided to Eurodif/COGEMA during the POR, we calculated a per-SWU price for both the energy and operational components of the LEU purchased by EdF from Eurodif. See the February 28, 2005, Memorandum concerning the Calculations for the Notice of Preliminary Countervailing Duty Results: Low Enriched Uranium from France (
We, however, did calculate a countervailable benefit from a sale pursuant to the contract listed in Exhibit 21 of Eurodif/COGEMA's June 1, 2004, questionnaire response.
On this basis, we preliminarily determine the countervailable subsidy from this program to be less than 0.005 percent
Under a specific governmental agreement entered into upon Eurodif's creation, Eurodif is only liable for income taxes on the portion of its income relating to the percentage of its private ownership. Eurodif is fully exonerated from payment of corporate income taxes corresponding to the percentage of its foreign government ownership and is eligible for a reimbursement of the amount of corporate income taxes corresponding to the percentage of its French government ownership. In the
During the POR, (
In accordance with 19 CFR 351.509(b), we calculated the benefit under this program by determining the amount of corporate income taxes that Eurodif would have otherwise paid, absent the program, on the tax return it filed during the POR. Specifically, we added the amount of exonerated taxes and the amount of reimbursable taxes during the POR. We then divided the total benefit amount by Eurodif's total sales for calendar year 2003. We adjusted Eurodif's sales denominator using the methodology described in the “Purchases at Prices that Constitute ‘More Than Adequate Remuneration’ ” section, above. This methodology is consistent with our approach in the
In accordance with section 703(d)(1)(A)(i) of the Act, we have calculated an individual rate for Eurodif/COGEMA for 2003. We preliminarily determine that the total countervailable subsidy rate is 1.23 percent
If the final results of this review remain the same as these preliminary results, the Department intends to instruct the U.S. Customs and Border Protection (CBP), within 15 days of publication of the final results of this review, to liquidate shipments of LEU from France by Eurodif/COGEMA entered, or withdrawn from warehouse, for consumption from January 1, 2003, through December 31, 2003, at 1.23 percent
Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding.
While the countervailing duty deposit rate for Eurodif/COGEMA may change as a result of this administrative review, we have been enjoined from liquidating any entries of the subject merchandise.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the date of publication of this notice. Rebuttal briefs, limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs, unless otherwise specified by the Department. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, that is, 37 days after the date of publication of these preliminary results.
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of this administrative review, including the results of its analysis of arguments made in any case or rebuttal briefs.
This administrative review is issued and published in accordance with sections 751(a)(1) and 777(I)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(I)(1)).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
NMFS will present a series of public workshops on the new Crab Rationalization Program (Program) for participants the Bering Sea and Aleutian Islands (BSAI) king and Tanner crab fisheries. At each workshop, NMFS will provide an overview of the Program, discuss the key Program elements, provide information on the application process, and answer questions. NMFS is conducting these public workshops to provide assistance to fishery participants in complying with the requirements of this new Program.
Workshops will be held in March and April 2005. For specific dates and times see
Workshops will be held in Kodiak, AK; Seattle, WA; Newport, OR; and Anchorage, AK. For specific locations see SUPPLEMENTARY INFORMATION.
Sheela McLean, 907-586-7032 or
On March 2, 2005, NMFS published a final rule implementing the Crab Rationalization Program (Program) as Amendments 18 and 19 to the Fishery Management Plan for Bering Sea/ Aleutian Islands King and Tanner Crabs. In January 2004, the U.S. Congress amended section 313(j) of the Magnuson-Stevens Act through the Consolidated Appropriations Act of 2004 (Pub. L. No. 108-199, section 801). As amended, section 313(j)(1) requires the Secretary to approve and implement the Program, as it was approved by the North Pacific Fishery Management Council (Council) between June 2002 and April 2003, and all trailing amendments, including those reported to Congress on May 6, 2003. In June 2004, the Council consolidated its actions on the Program into the Council motion, which is contained in its entirety in Amendment 18. Additionally, in June 2004, the Council developed Amendment 19, which represents minor changes necessary to implement the Program. The Notice of Availability for these amendments was published in the
NMFS is conducting public workshops to provide assistance to fishery participants in complying with the requirements of this new Program. At each workshop, NMFS will provide an overview of the Program, discuss the key Program elements, and provide information on the application process. The key Program elements to be discussed include economic data collection, the Arbitration System, community measures, monitoring and enforcement, electronic reporting, quota share and individual fishing quota application and transfer provisions, the appeals process, fee collection, and the loan program. Additionally, NMFS will answer questions from workshop participants. For further information on the Crab Rationalization Program, please visit the NMFS Alaska Region Internet site at
NMFS will hold public workshops as follows:
1. Friday, March 18, 2005, 10 a.m. - 4 p.m. Alaska local time (ALT) - Choral Pod, Kodiak High School, Kodiak, AK.
2. Wednesday, March 30, 2005, 10 a.m. - 4 p.m. Pacific Standard Time (PST) - Leif Erickson Hall, 2245 Northwest 57th Street, Seattle, WA.
3. Friday, April 1, 2005, 10 a.m. - 4 p.m. PST - Seminar Room, Marine Hatfield Science Center, 2030 Southeast Marine Science Drive, Newport, OR
4. Tuesday, April 5, 2005, 6 p.m. - 9 p.m. ALT - Anchorage Hilton, Katmai/Dillingham Room, 500 West Third Avenue, Anchorage, AK.
Special Accommodations
These workshops are physically accessible to people with disabilities. Requests for special accommodations should be directed to Sheela McLean (see
The next meeting of the Commission of Fine Arts is scheduled for 17 March 2005 at 9 a.m. in the Commission's offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington, DC 20001-2728. Items of discussion affecting the appearance of Washington, DC, may include buildings, parks and memorials.
Draft agendas and additional information regarding the Commission are available on our Web site:
Department of Defense Education Activity (DoDEA).
Open meeting notice.
Pursuant to the Federal Advisory Committee Act, Appendix 2 of title 5, United States Code, Public Law 92-463, notice is hereby given that a meeting of the Advisory Council on Dependents' Education (ACDE) is scheduled to be held on May 6, 2005, from 8 a.m. to 5 p.m. The meeting will be held at the DoDEA headquarters building at 4040 North Fairfax Drive, Arlington, Virginia 22203. The purpose of the ACDE is to recommend to the Director, DoDEA, general policies for the operation of the Department of Defense Dependents Schools (DoDDS); to provide the Director with information about effective educational programs and practices that should be considered by DoDDS; and to perform other tasks as may be required by the Secretary of Defense. The meeting emphases will be the current operational qualities of schools and the institutionalized school improvement processes, as well as other educational matters. For further information contact Mr. Jim Jarrard, at 703-588-3121 or at
Department of Defense.
Notice of Advisory Committee Meeting Date Change.
On Friday, February 25, 2005 (70 FR 9280-9281) the Department of Defense announced open meetings of the Defense Science Board (DSB) Task Force on Roles and Authorities of the Director of Defense Research and Engineering scheduled for February 24, 2005 and March 14, 2005. These meetings will now be closed. Due to inclement weather the meeting on February 24, 2005 was canceled and rescheduled for March 2, 2005. Both meetings will be held at Strategic Analysis Inc., 3601 Wilson Boulevard, Suite 600, Arlington, VA.
Department of Defense.
Notice of Advisory Committee Meeting.
The Defense Science Board Task Force on Mobility will meet in closed session on March 17, 2005, in Arlington, VA. This Task Force will identify the acquisition issues in improving our strategic mobility capabilities.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At this meeting, the Defense Science Board Task Force will review: the part transport plays in our present-day military capability—the technical strengths and weaknesses the operational opportunities and constraints; the possible advantage of better alignment of current assets with those in production and those to be delivered in the very near future; how basing and deployment strategies—CONUS-basing, prepositioning (ashore or afloat), and seabasing—drive our mobility effectiveness; the possible advantages available from new transport technologies and systems whose expected IOC dates are either short term (~ 12 years) or, separately, the long term (~ 25 years).
In accordance with Section 10(d) of the Federal Advisory Committee Act, Pub. L. 92-463, as amended (5 U.S.C. App. 2), it has been determined that this Defense Science Board Task Force meeting concerns matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, the meeting will be closed to the public.
Department of Defense.
Notice; correction.
The Department of Defense published a document in the
Ms. Taunya King, SERDP Program Office, 901 North Stuart Street, Suite 303, Arlington, VA or by telephone at (703) 696-2124.
In the
National Reconnaissance Office.
Notice to alter a system of records.
The National Reconnaissance Office is altering a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice April 6, 2005, unless comments are received which result in a contrary determination.
Send comments to the FOIA/Privacy Official, National Reconnaissance Office, Information Access and Release, 14675 Lee Road, Chantilly, VA 20151-1715.
Contact the FOIA/NRO Privacy Official at (703) 227-9128.
The National Reconnaissance Office systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on February 1, 2005, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,' dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Personnel Security Files (January 14, 2002, 67 FR 1741).
Add to end of entry ‘and security incident records, such as the security file number, user id, date resolved, case id, case manager, government point of contact, incident report date, incident report type, date notified, reporter's name, affiliation, employer, officer, information systems security officer name and phone number, manager name and phone number, program security officer name and phone number, date of incident, location where incident occurred, incident type and description, names of personnel involved with incident along with their social security number, office, affiliation, employer, and phone number, incident category, classification of data, name of person who classified it, including identification number, title, position, organization, phone number, person who verified classification level of data, their title, position, organization, phone number and source used to verify classification, data owner name, their title, position, organization, phone number, date notified, date classification confirmed, number of individuals and organizations with unauthorized access to information and their clearance level, organization that caused the unauthorized disclosure, nature of unauthorized disclosure, where file originated, how data was introduced into computer system, file name, size, type and whether action warrants notification of the Director of Central Intelligence.’
Add a new paragraph to entry ‘The system will provide a centrally managed security incident database for NRO security managers. The user will be the primary reporter of the information. This will also be a tool to ensure incidents are identified, documented, tracked, investigated, responded to, adjudicated, and corrected, in a standard and timely manner.’
Add a new paragraph ‘To the Intelligence Community to review the records, in the form of statistics only, for the purpose of providing trend analysis, disseminating threat information, providing reports of IT threats, any issues affecting mission critical networks, informing them of unauthorized disclosures or any compromise of intelligence information in accordance with applicable law.’
Add to entry ‘type of incident, Case ID, Case Manager, and responsibility Program Security Officer.’
Delete entry and replace with ‘Security case records are temporary, retained for 15 years after inactivation; noteworthy files are retained for 25 years after inactivation. Security incident records are temporary, retained for 5 years after inactivation. Audio and videotapes of polygraph examinations and interviews are temporary and are re-used or destroyed when superseded, obsolete, or no longer needed.’
Add to entry ‘Deputy Director of Administration, Office of Security, Chief of Security Policy Staff.’
Personnel Security Files.
Office of Security, Personnel Security Division, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
National REconnaissance Office (NRO) civilian, military and contractor personnel who have been nominated or investigated for security clearances and program accesses.
‘Name, Social Security Number, agency identification number, employee's geographic work location, employer, work telephone number, date and place of birth, home address and home telephone number, dependents' names, individual's background investigation and polygraph data, interview and adjudication information, all other information such as that found
National Security Act of 1947, as amended, 50 U.S.C. 401
The information is used for grant in security program accesses to NRO personnel; to maintain, support, and track personnel security administrative processing; to provide data for day-to-day security functions; and to conduct security investigations. The system also provides a centrally managed security incident database for NRO security managers. The user will be the primary reporter of the information to enable an accurate overall view of incident response activities. This will also be a tool to ensure incidents are identified, documented, tracked, investigated, responded to, adjudicated, and corrected, in a standard and timely manner.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the NRO as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: To contractors and other Federal agencies for purposes of protecting the security of NRO installations, activities, property, and employees; to facilitate and verify an individual's eligibility to access classified information; and to protect the interests of National Security. The NRO Director of Security or his/her designee must approve disclosure in writing.
To the Intelligence Community to review the records, in the form of statistics only, for the purpose of providing trend analysis, disseminating threat information, providing reports of IT threats, any issues affecting mission critical networks, informing them of unauthorized disclosures or any compromise of intelligence information in accordance with applicable law.
The DoD ‘Blanket Routines Uses’ published at the beginning of the NRO compilation of systems of records notices apply to this system.
Paper files and automated information system, maintained in computers and computer output products.
Name, Social Security Number, agency identification number, employer, employee's geographic work location, date and place of birth, administrative comments, type of incident, Case ID, Case Manager, and responsibility Program Security Officer.
Records are stored in a secure, gated facility, guard, badge, and password access protected. Access to and use of these records are limited to security staff whose official duties require such access.
Security case records are temporary, retained for 15 years after inactivation; noteworthy files are retained for 25 years after inactivation. Security incident records are temporary, retained for 5 years after inactivation. Audio and videotapes of polygraph examinations and interviews are temporary and are reused or destroyed when superseded, obsolete, or no longer needed.
Chief, Personnel Security Division, Office of Security, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Chief, Security Policy Staff, Office of Security, Deputy Director of Administration, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include full name and any aliases or nicknames, address, Social Security Number, current citizenship status, and date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).
If executed within the United States, its territories, possessions, or commonwealths: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).
Individuals seeking to access information about themselves contained in this system should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include full name and any aliases or nicknames, address, Social Security Number, current citizenship status, and date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the
If executed within the United States, its territories, possessions, or commonwealths: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).
The NRO rules for accessing records, for contesting contents and appealing initial agency determinations are published in NRO Directive 110-3A and NRO Instruction 110-5A; 32 CFR part 326 or may be obtained from the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Information is supplied by the individual, by persons other than the individual, and by documentation gathered in the background investigation, and other government agencies.
Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this exemption has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 326. For additional information contact the system manager.
Department of the Army, DoD
Notice to amend system of records; correction.
The Department of Defense published a document in the
Ms. Janice Thornton at (703) 428-6497.
In the
“
Department of the Navy, DoD.
Notice to add systems of records.
The Department of the Navy proposes to add a system of records notice to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This action will be effective on April 6, 2005, unless comments are received that would result in a contrary determination.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Lama at 202-685-6545.
The Department of the Navy's record system notices for records systems, subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, were submitted on January 26, 2005, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996, (61 FR 6427, February 20, 1996).
Enterprise-wide Safety Applications Management System (ESAMS).
HGW and Associates, LLCI, Suite A-100, 9000 Executive Park Drive, Knoxville, TN 37923-4685 and organizational elements of the Department of the Navy. Official mailing addresses are published in the Standard Navy Distribution List that is available at
Department of the Navy military and civilian personnel, non-appropriated personnel, and foreign national civilian personnel.
Name, Social Security Number, date of birth, job title, rank/rate/grade, civilian/military indicator, unit identification code (UIC) , activity name, major command code, department, sex, job title, OSH training received, test scores, occupational medical stressors, medical physical dates and non-medically sensitive results, respirator usage and fit test results, chemical and/or environmental exposures, and occupational injuries/illnesses.
5 U.S.C. 4101-4118, the Government Employees Training Act of 1958; 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 5042, Commandant of the Marine Corps; E.O. 12196, Occupational Safety and Health Programs for Federal Employees; and DoD Instruction 6055.7, Accident Investigation, Reporting, and Record Keeping; and E.O. 9397 (SSN).
The Department of the Navy is proposing to establish a system of
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b) (3) as follows:
To the Occupational Safety and Health Administration during the course of an on-site inspection.
The DoD ‘Blanket Routine Uses’ that appear at the beginning of the Navy's compilation of systems bf records notices apply to this system.
Computerized database.
Retrieved by individual's name and Social Security Number.
Computer facilities and terminals pre located in restricted areas accessible only to authorized persons that are properly screened, cleared and trained. Information is password protected. Manual records and computer printouts are available only to authorized personnel having a need-to-know.
Records are retained for up to their duration of employment plus 30 years and then destroyed.
Organizational elements of the Department of the Navy. Official mailing addresses are published in the Standard Navy Distribution List that is available at
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Commanding Officer of the local activity. Official mailing addresses are published in the Standard Navy Distribution List that is available at
The request should contain individual's full name, Social Security Number, address and should be signed.
Individuals seeking to access the information about themselves contained in this system of records not accessible through system interfaces should address written inquiries to the Commanding Officer of the local activity. Official mailing addresses are published in the Standard Navy Distribution List that is available at
The request should contain the individual's full name, Social Security Number, address and should be signed.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual; personnel file excerpts; medical record excerpts; office files; etc.
None.
Energy Information Administration (EIA), Department of Energy (DOE).
Agency information collection activities: proposed collection; comment request.
The EIA is soliciting comments on the proposed revision and three-year extension under section 3507(h)(1) of the Paperwork Reduction Act of 1995 of the surveys in the Natural Gas Data Collection Program Package. The surveys covered by this request include:
• Form EIA-176, “Annual Report of Natural and Supplemental Gas Supply and Disposition”
• EIA-191, “Monthly and Annual Underground Gas Storage Report”
• EIA-857, “Monthly Report of Natural Gas Purchases and Deliveries to Consumers”
• EIA-895, “Monthly and Annual Quantity and Value of Natural Gas Production Report” (The EIA proposes to eliminate the current monthly reporting of Form EIA-895 and only require an annual report.)
• EIA-910, “Monthly Natural Gas Marketer Survey”
• EIA-912, “Weekly Underground Natural Gas Storage Report”
In addition, EIA is proposing that the following new survey be approved by OMB.
• EIA-913, “Monthly and Annual Liquefied Natural Gas (LNG) Storage Report”
Comments must be filed by May 6, 2005. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Send comments to Mr. Stephen Nalley, Natural Gas Division, Office of Oil and Gas, Energy Information Administration. To ensure receipt of the comments by the due date, submission by fax (202-586-4420) or e-mail (
Requests for additional information or copies of any forms and instructions should be directed to Mr. Nalley at the address listed above.
Also, the draft forms and instructions are available on the EIA Web site at
The Federal Energy Administration Act of 1974 (Pub. L. 93-275, 15 U.S.C. 761
The EIA, as part of its effort to comply with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35), provides the general public and other Federal agencies with opportunities to comment on the collection of energy information conducted by or in conjunction with the EIA. Any comments received help the EIA prepare data requests that maximize the utility of the information collected, and assess the impact of collection requirements on the public. As required by section 3507(h)(1) of the Paperwork Reduction Act of 1995, the EIA will later seek approval by the Office of Management and Budget (OMB).
The natural gas surveys included in the Natural Gas Data Collection Program Package collect information on natural gas production, underground storage, transmission, distribution, and consumption by sector, and wellhead and consumer prices. This information is used to support public policy analyses of the natural gas industry and estimates generated from data collected on these surveys are posted to the EIA Web site (
In conjunction with data collected in other EIA surveys, Form EIA-176 provides EIA with the major elements of information required to develop annual gas supply and disposition balances and relevant cost, price, and related information at the State level. It is used for the following purposes:
(1) To develop and make available to Congress, State government, and the public an accurate quantified overview of the supply of natural and supplemental gas available to each of the States from all sources both internal and external to the State, and the manner in which such supply was utilized or otherwise disposed of,
(2) To determine the quantity of natural and supplemental gas consumed within each of the States by market sector, the average sales prices for such gas, and the changes in consumption and price patterns over time.
Form EIA-191 is comprised of a monthly (EIA-191M) and annual (EIA-191A) schedule. The EIA-191M currently requests monthly data on the location and operations of all active underground natural gas storage fields. The EIA-191A collects data on total field capacity, operation capability and field type as of December 31 of the reporting year. Storage data are a critical link in understanding the deliverability of the natural gas system of the United States and overall system operations.
The information collected on Form EIA-191 will be used in the following ways:
(1) To provide State-level data on underground natural gas storage with respect to injections, withdrawals, inventories, and type of storage facility, location, and capacity. These data will be made available through EIA's NGM, NGA, MER, and AER. Monthly data collection also provides reliable baseline data on storage operations necessary for analyses, modeling, and comparison with normal industry operations in cases of severe weather, natural disaster, or other extreme circumstances,
(2) To provide data on all aspects of underground natural gas storage to enable EIA and other elements of DOE to identify and assess the supplies of gas in storage by geographic location.
Monthly State-level data collected on the Form EIA-857 consist of average price of natural gas purchased by local distribution companies at their city gates, consumption of natural gas by sector, and average sales price by sector. These data are necessary to provide timely information needed to measure the combined impact of government, industry, and consumer actions; geographic location; climatic conditions; and other factors on the natural gas industry and natural gas consumers. The data collected on the Form EIA-857 are used to develop information for publication in EIA's STEO, NGM, and MER, and to make the data available to Congress, State governments, industry, and the public.
Form EIA-895 is a voluntary survey, which is comprised of monthly (EIA-895M) and annual (EIA-895A) schedules. The EIA-895M collects monthly information from the appropriate State agencies concerning natural gas production. It provides details on gross withdrawals from gas and oil wells and from coalbed methane wells, volumes vented and flared, volumes of nonhydrocarbon gases removed, gas used as fuel on leases, and the amount of natural gas available for market. These data are routinely collected by States for taxation, conservation, or statistical purposes. In addition to providing an annual summary of the monthly collected data, the EIA-895A provides detail on the value of marketed production.
Form EIA-910 collects monthly information for developing accurate estimates of State-level prices paid by residential and commercial consumers of natural gas in states where a choice program exists. Data from the EIA-910 are combined with data from the EIA-857 to produce more complete and accurate price estimates.
The EIA-912 data collection responds to requests to provide weekly measures of natural gas underground storage operations. Through this survey instrument, EIA provides a weekly data series on underground storage of natural gas similar to what was previously published by the American Gas Association (AGA). AGA discontinued its data collection on May 1, 2002. EIA first released data from the survey on May 9, 2002. Data are now published weekly in the WNGSR. EIA uses the data to prepare analytical products assessing storage operations in the three AGA regions and their impact on supplies available for the winter heating season, and in more detailed analyses correlating demand, heating-degree-days, and prior inventory levels. Such correlations help EIA to understand the impact of storage operations on natural gas supply and demand.
In 2003, EIA proposed a survey to monitor the monthly volume of LNG in storage and annual operational capacities of active LNG storage
Please refer to the proposed forms and instructions for more information about the purpose, who must report, when to report, where to submit, the elements to be reported, detailed instructions, provisions for confidentiality, and uses (including possible nonstatistical uses) of the information. For instructions on obtaining materials, see the
EIA will be requesting a three-year extension of the collection authority for each of the above-referenced surveys, including the proposed new EIA-913. In addition, EIA proposes the changes outlined below that affect the EIA-176, EIA-191, EIA-857, EIA-895, EIA-910, EIA-912, and EIA-913.
No significant changes are proposed for the EIA-176. Minor changes will be made to the survey form and instructions in order to provide simplicity and clarity. Although EIA proposes to continue the collection of the “Operation type” data, EIA is requesting comments regarding the practical utility of the data. EIA proposes to add a question about the use of alternative fueled vehicles to assist in the development of a comprehensive survey frame of respondents for the EIA-886, “Annual Survey of Alternative Fueled Vehicles Suppliers and Users.”
In addition to several minor changes to the instructions and monthly and annual schedules of Form EIA-191 for the purpose of simplicity and clarity, EIA proposes significant revisions to the data collected under Form EIA-191 as detailed below:
In an effort to reduce respondent burden and simplify reporting requirements, EIA proposes to eliminate the “Pipelines to which this field is connected,” as well as to eliminate the check boxes used to note if data have changed from the previous annual report. EIA proposes to add the collection of “Working Gas Capacity” and the field status (
In an effort to reduce respondent burden, EIA proposes to eliminate the request for “Peak day” and “Peak day withdrawals” from the EIA-191M. The addition of a check box to signal capacity change for the field will be added.
No significant changes are proposed for the Form EIA-857. The instructions will include minor changes to provide simplicity and clarity. Although EIA proposes to continue the collection of the “Purchased City-Gate” data, EIA is requesting comment regarding the practical utility of the data.
In addition to several minor changes to the instructions of Form EIA-895, EIA proposes significant revisions to the data collected under Form EIA-895 as detailed below:
EIA proposes to continue collecting the annual data with no significant change.
EIA proposes to eliminate the current monthly schedule for Form EIA-895 as a source of production and disposition of natural gas components and used to calculate monthly marketed production estimates. Estimates based on the EIA-914, “Monthly Natural Gas Production Report,” will replace this monthly data source. Thus, there will be no monthly reporting with Form EIA-895.
No significant changes are proposed for the EIA-910. Minor changes will be made to the survey form and instructions.
No significant changes are proposed for the EIA-912. Minor changes will be made to the survey form and instructions.
In 2003, EIA proposed to collect monthly and annual LNG storage information, but decided not to implement that proposal at that time. EIA promised to continue to monitor the LNG market and reconsider the proposed survey at a future time. LNG has an increasingly important role as a source of natural gas supply, especially during periods of peak demand. Therefore, EIA is proposing to conduct LNG storage surveys, subject to funds being provided in the FY2007 budget. If funding is made available, the survey would most likely not begin until calendar year 2007.
The current LNG survey proposal is different from the 2003 LNG Storage Report proposal. The current proposal would have the survey operate seasonally and monitor monthly storage levels during September through March only, whereas the 2003 proposal would have monitored monthly storage levels throughout the entire year. The current proposal also requires that respondents report only one monthly data item;
All operators of facilities that store LNG for baseload, seasonal, and peak demand delivery in the United States, or for delivery to United States customers for these purposes would be required to complete the mandatory report. This
Respondents would be required to complete the EIA-913 Annual Schedule at the start of the survey and subsequently once a year in September thereafter and whenever a new facility begins operation or a change in storage operator or storage capacity occurs. The EIA would contact the respondents on the first Monday of the month or the first business day after the first Monday of the month in the event of a holiday.
The aggregate data collected on the Form EIA-913 for the United States and several multi-state regions would be used to develop national and regional level estimates for publication in the NGM, MER, and NGA; no State level data would be published. EIA proposes that monthly respondent data would be treated as sensitive, proprietary information while respondent data from the annual schedule would not be confidential.
Prospective respondents and other interested parties should comment on the actions discussed in items II and III. The following guidelines are provided to assist in the preparation of comments. Please indicate to which form(s) your comments apply.
A. Is the proposed collection of information necessary for the proper performance of the functions of the agency and does the information have practical utility? Practical utility is defined as the actual usefulness of information to or for an agency, taking into account its accuracy, adequacy, reliability, timeliness, and the agency's ability to process the information it collects.
B. What enhancements can be made to the quality, utility, and clarity of the information to be collected?
A. Would burden be reduced if applicable data were collected in Btu (heat content) rather than Mcf basis (volumetric, as it is on some surveys)?
B. Would burden be increased if EIA adopted a standard mandatory revision rule for its natural gas surveys requiring resubmission of data for revisions greater than 4 percent?
C. Are the instructions and definitions clear and sufficient? If not, which instructions need clarification?
D. Can the information be submitted by the due date?
E. Public reporting burden for the surveys included in the Natural Gas Data Collection Program Package is shown below as an average hour(s) per response. The estimated burden includes the total time necessary to provide the requested information. In your opinion, how accurate is this estimate for the proposed forms?
(1) Form EIA-176, “Annual Report of Natural and Supplemental Gas Supply and Disposition”; 12 hours per response.
(2) Form EIA-191A, “Annual Underground Gas Storage Report”; 1 hour per response.
(3) Form EIA-191M, “Monthly Underground Gas Storage Report”; 2.5 hours per response.
(4) Form EIA-857, “Monthly Report of Natural Gas Purchases and Deliveries to Consumers”; 3.5 hours per response.
(5) Form EIA-895, “Annual Quantity and Value of Natural Gas Production Report”; .5 hours per response.
(6) Form EIA-910, “Monthly Natural Gas Marketer Survey”; 2 hours per response.
(7) Form EIA-912, “Weekly Underground Natural Gas Storage Report”; 0.5 hour per response.
(8) Form EIA-913A, “Annual Liquefied Natural Gas (LNG) Storage Report”; 1 hour per response.
(9) Form EIA-913M, “Monthly (September-March) Liquefied Natural Gas (LNG) Storage Report”; 0.5 hour per response.
F. The agency estimates that the only cost to a respondent is for the time it will take to complete the collection. Will a respondent incur any start-up costs for reporting, or any recurring annual costs for operation, maintenance, and purchase of services associated with the information collection?
G. What additional actions could be taken to minimize the burden of this collection of information? Such actions may involve the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
I. Does any other Federal, State, or local agency collect similar information? If so, specify the agency, the data element(s), and the methods of collection.
A. Is the information useful at the levels of detail to be collected?
B. For what purpose(s) would the information be used? Be specific.
C. Are there alternate sources for the information and are they useful? If so, what are their weaknesses and/or strengths?
D. Would the information be more useful if published uniformly in Btu rather than volumetrically? Which is the perceived industry standard?
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the form. They also will become a matter of public record.
Sec. 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
Take notice that Columbia Gas Transmission Corporation (Columbia), filed on February 16, 2005 an application under Section 7(b) of the Natural Gas Act (NGA), as amended, and part 157 of the Commission's regulations for permission and approval to abandon four storage wells, together with associated pipeline and appurtenances, located in Ashland Guernsey and Holmes Counties, Ohio, all as more fully set forth in the application on file with the Commission.
Any questions regarding this application should be directed to counsel for Columbia, Fredric J. George, Senior Attorney, Columbia Gas Transmission Corporation, P.O. Box 1273, Charleston, West Virginia 25325-1273; telephone (304) 357-2359, fax (304) 357-3206.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On February 25, 2005, the Commission issued an order in the above-referenced dockets initiating a proceeding in Docket No. EL05-62-000 under section 206 of the Federal Power Act. 110 FERC ¶ 61,186 (2005).
The refund effective date in Docket No. EL05-62-000, established pursuant to section 206 of the Federal Power Act, will be 60 days following publication of this notice in the
Take notice that on February 24, 2005, Tri-State Financial Co., LLC, d/b/a North Country Ethanol, (North Country), 47333 104th Street, P.O. Box 78, Rosholt, South Dakota, 57260, and Tri-State Ethanol Co., LLC, (Tri-State Ethanol) filed with the Commission an application pursuant to section 7(b) and 7(c) of the Natural Gas Act to abandon, by sale, Tri-State Ethanol's facilities, located in Roberts County, South Dakota and Richland County, North Dakota, originally authorized under CP02-63-001, to North Country due to bankruptcy proceedings. North Country also requests temporary authorization, pursuant to § 157.17, to operate the subject facilities. Additionally, North Country seeks Commission approval of the permanent transfer of the certificate of public convenience and necessity issued by the Commission to Tri-State Ethanol in Docket No. CP02-63-001. Also, on February 25, 2005, North Country filed an amendment requesting the Commission to include in any authorizations the ability to transport gas solely on behalf of North Country. Finally, on February 25, 2005, North Country filed a supplement to its application detailing the economic and employment impacts the facilities have on the county in which the facilities are located, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
On February 28, 2002, Tri-State Ethanol was issued a certificate (98 FERC ¶ 61,220 (2002)) to own and the operate subject facilities, consisting of a 10.5-mile, 4.5-inch diameter pipeline, located in Richland County, North Dakota and terminating at Tri-State's ethanol facility near Rosholt, in Roberts County, South Dakota. North Country states that although Tri-State Ethanol received its certificate and approval to place the subject delivery line into service, a fire and explosion at the plant occurred on December 31, 2002, and service on the certificated facilities never commenced. Also, North Country asserts that financial difficulties stemming from the fire and explosion forced Tri-State Ethanol to file on May 23, 2003, with the United States Bankruptcy Court for the District of South Dakota (Northern Div.) in Case No. 03-10194, for reorganization under Chapter 11 of the Bankruptcy Code. On July 29, 2004, the proceeding was converted to a liquidation under Chapter 7 of the Bankruptcy Code pursuant to an order of the Bankruptcy Court. Subsequently, a court-supervised auction of Tri-State Ethanol's assets, including the Plant and certificated delivery line was conducted. On December 22, 2004, the Bankruptcy Court issued an order approving the sale of numerous Tri-State assets to North Country and the transfer of various permits and governmental authorizations related to the acquired assets. The subject application implements the arrangements approved by the Bankruptcy Court.
Any questions concerning the application should be directed to Kevin K. Crago, General Manager, Tri-State Financial Co., LLC, 47333 104th Street, P.O. Box 78, Rosholt, South Dakota, 57260, or call (605) 537-4585.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on February 24, 2005, CER Termobahia, LLC, a Delaware limited liability company (Applicant), with its principal executive office at 1930 Burnt Boat Drive, Bismarck, North Dakota, 58503, filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations and section 32 of the Public Utility Holding Company Act of 1935, as amended.
Applicant states it will own, in part, a 190 MW natural-gas fired, combined-cycle electrical generating facility located in the State of Bahia, near Salvador, Brazil (the facility). Applicant further states that it will be engaged directly and exclusively in the business of owning and operating an eligible facility and none of the electric energy produced from the facility will be sold into the United States either at retail or otherwise.
Take notice that on February 18, 2005, Public Service Company of New Mexico (PNM) submitted a filing in response to the Commission's December 20, 2004 order in the above-captioned proceedings.
PNM states that copies of the filing were served on parties on the official service lists in the above-captioned proceedings.
Take notice that on February 18, 2005, the Pinnacle West Capital Corporation (PWCC), the Arizona Public Service Company (APS), the Pinnacle West Energy Corporation (PWEC) and APS Energy Services Company, Inc. (APSES) (collectively, Pinnacle West Companies) filed with the Commission a response to the Commission's Order dated December 20, 2004, directing Pinnacle West Companies to provide additional information to the Commission to supplement its market update for authorization to sell at market-based rates and various tariff amendments filed on August 11, 2004.
Take notice that, on February 22, 2005, Frederickson Power L.P., EPCOR Merchant and Capital (US), Inc., EPCOR Power Development, Inc., and EPDC, Inc. (collectively, the EPCOR Parties) submitted a triennial updated market-based rate analysis.
The EPCOR Parties state that copies of the filing were served on parties on the official service lists in the above-referenced proceedings.
Take notice that on February 23, 2005, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted a compliance filing pursuant to the Commission's January 24, 2005 Order in
The Midwest ISO has requested waiver of the service requirements set forth in 18 CFR 385.2010. The Midwest ISO states that it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, as well as all state commissions within the region. In addition, Midwest states that the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on February 18, 2005 ISO New England Inc. (the ISO) and the New England Power Pool (NEPOOL) Participants Committee submitted a compliance filing, including a report entitled The Costs and Benefits of Implementing a Day-Ahead Load Response Program and revisions to Appendix E to Section III of the ISO's Transmission, Markets and Services Tariff (the Tariff), in response to the requirements of the Commission's December 21, 2004 order in Docket No. ER04-1255-000. NEPOOL and the ISO requested a June 1, 2005 effective date for the revisions to the tariff.
The ISO and the NEPOOL Participants Committee state that copies of the compliance filing were sent to the NEPOOL Participants and the New England state governors and regulatory commissions, as well as all parties on the official service lists in the above-captioned proceeding.
Take notice that on February 23, 2005, Unitil Energy Systems, Inc. (UES) submitted a compliance filing pursuant to the Commission's order issued on February 2, 2005 in Docket No. ER05-320-000,
UES states that copies of the filing were served on parties on the official service list in the above-captioned proceeding and on the New Hampshire Public Utility Commission.
Take notice that on February 23, 2005, Hot Spring Power Company, LP (Hot Spring) filed a supplement to its application filed February 11, 2005 in Docket No. ER05-570-000 for authorization to make wholesale sales of electric energy, capacity, and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights.
Take notice that on February 18, 2005, Puget Sound Energy Inc. (PSE) submitted revised tariff sheets to its open access transmission tariff incorporating the changes directed by the Commission in Order No. 2003-B,
PSE states that electronic copies of the filing were served on the Washington Utilities and Transportation Commission and PSE's jurisdictional customers.
Take notice that on February 22, 2005, PSI Energy, Inc. (PSI) tendered for filing the transmission and local facilities agreement for calendar year 2003 reconciliation between PSI and Wabash Valley Power Association, Inc., and between PSI and Indiana Municipal Power Agency, designated as PSI's Rate Schedule FERC No. 253.
Take notice that on February 22, 2005, the American Electric Power Service Corporation (AEPSC), tendered for filing an Interconnection and Local Delivery Service Agreement for Blue Ridge Power Association (Blue Ridge), designated as Substitute Service Agreement No. 181, to the Operating Companies of the American Electric Power System FERC Electric Tariff Third Revised Volume No. 6. AEPSC requests an effective date of February 1, 2005.
AEPSC states that a copy of the filing was served upon the Party and the Virginia Public Service Commission.
Take notice that on February 23, 2005, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted a Large Generator Interconnection Agreement among Columbia Community Windpower LLC, American Transmission Company LLC and the Midwest ISO.
Midwest ISO states that a copy of this filing was served on the parties to this Interconnection Agreement.
Take notice that on February 23, 2005, Wisconsin Public Service Corporation (WPSC) tendered for filing, the actual 2004 values for billing for post-employment benefits (PEB) and post-employment benefits other than pensions (PBOP) in its formula rates for: (1) The W-1A tariff for full requirements service; (2) the W-2A tariff for partial requirements service; and (3) Rate Schedule No. 51 for partial requirements service for the City of Marshfield. WPSC has also requests waiver of the notice requirements to allow it to apply the 2004 PEB and PBOP values to the true-up of these wholesale customers' estimated capacity rate billings for service during 2004 and for estimated billing as of April 1, 2005.
WPSC states that copies of the filing were served upon WPSC's affected wholesale customers, the Public Service Commission of Wisconsin and the Michigan Public Service Commission.
Take notice that on February 23, 2005, Illinois Power Company (Illinois Power) submitted a Market-Based Rate Tariff authorizing AmerenIP to engage in the sale of electric energy, capacity and firm rights at market-based rates and to reassign transmission capacity rights at negotiated rates. Illinois Power requests an effective date of the later of April 1, 2005, or the first day of the Midwest ISO's Day 2 markets (currently expected to be April 1, 2005).
Take notice that on February 23, 2005, Brascan Power Piney & Deep Creek LLC (Brascan Power PDC) submitted for filing an application for market-based rate authorization to sell energy, capacity, and ancillary services, and reassign transmission capacity and resell firm transmission rights. Brascan Power PDC also requests the waivers and exemptions from regulation typically granted to the holders of market-based rate authorization. In addition, Brascan Power PDC requests waiver of the 60-day prior notice requirement and requests expedited consideration of its application for market-based rate authorization.
Take notice that on February 23, 2005, Cinergy Services, Inc. (Cinergy Services), on behalf of The Cincinnati Gas & Electric Company (CG&E), PSI Energy, Inc. (PSI) and Cinergy Power Investments, Inc. submitted for filing a revised Joint Generation Dispatch Agreement between PSI and CG&E.
Cinergy Services states that copies of the filing were served upon the Indiana Utility Regulatory Commission.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (Commission or FERC) has prepared a draft environmental impact statement (EIS) on the natural gas pipeline facilities and abandonment activities proposed by Northwest Pipeline Corporation (Northwest) in the above-referenced docket. The Capacity Replacement Project would be located in various counties in Washington.
The draft EIS was prepared to satisfy the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed project with appropriate mitigating measures as recommended, would have limited adverse environmental impact.
The U.S. Army Corps of Engineers (COE) is participating as a cooperating agency in the preparation of the EIS because the project would require permits pursuant to section 404 of the Clean Water Act (33 United States Code (U.S.C.) 1344) and section 10 of the Rivers and Harbors Act (33 U.S.C. 403). The COE would adopt the EIS pursuant to Title 40 Code of Federal Regulations (CFR) Section 1506.3 if, after an independent review of the document, it concludes that its comments and suggestions have been satisfied.
The Washington State Department of Ecology (WDOE) is participating as a cooperating agency in the preparation of the EIS because it has been designated the lead agency under the State Environmental Policy Act (SEPA) and is responsible for compliance with SEPA procedural requirements as well as for compiling and assessing information on the environmental aspects of the proposal for all agencies with jurisdiction in Washington. NEPA documents may be used to meet SEPA requirements if the requirements of the State of Washington Administrative Code (WAC) 197-11-610 and 197-11-630 are met. In compliance with SEPA requirements, this Notice of Availability includes the information required for a SEPA EIS Cover Letter and Fact Sheet. When the final EIS is completed, the WDOE would adopt it if an independent review of the document confirms that it meets the WDOE's environmental review standards.
The purpose of the Capacity Replacement Project is to replace the majority of the delivery capacity of Northwest's existing 268-mile-long, 26-inch-diameter pipeline between Sumas and Washougal, Washington in response to a Corrective Action Order issued by the U.S. Department of Transportation. The proposed facilities are designed to provide up to 360 thousand dekatherms per day of natural gas transportation capacity.
This draft EIS addresses the potential environmental effects (beneficial and adverse) of Northwest's proposal to:
• Construct and operate 79.5 miles of new 36-inch-diameter pipeline in 4 separate loops
• Modify 5 existing compressor stations, one each in Whatcom, Skagit, Snohomish, Lewis, and Clark Counties for a total of 10,760 net horsepower of new compression;
• Install various pig
• Abandon the existing 26-inch-diameter pipeline between Sumas and Washougal with the exception of a short segment within and between the existing Jackson Prairie Meter Station and the Chehalis Compressor Station; and
• Use 13 pipe storage and contractor yards on a temporary basis to support construction activities.
Northwest proposes to begin construction in March 2006
The FERC, the COE, and the WDOE have three alternative courses of action in considering Northwest's proposal. These options include granting authorizations with or without conditions, denying authorizations, or postponing action pending further study. In accordance with the Council on Environmental Quality (CEQ) regulations implementing NEPA, no agency decision on the proposed action may be made until 30 days after the U.S. Environmental Protection Agency (EPA) publishes a Notice of Availability of the final EIS in the
After notice of the final EIS is published by the EPA, the COE would issue its own Record of Decision (ROD) adopting the EIS. The ROD would include the COE's section 404(b)(1) analysis. After issuance of the ROD, the COE could issue the section 404 and section 10 permits.
After the final EIS is issued, the WDOE would adopt it by identifying the document and stating why it is being adopted using the adoption form in WAC 197-11-965. The adoption form would be circulated to agencies with jurisdiction and to persons or organizations that have expressed an interest in the proposal. No action may be taken on the proposal until 7 days after the statement of adoption form has been issued. Once the 7-day waiting period is completed, the WDOE could begin issuing permits. Other state and local agencies cannot issue permits until the adoption procedure is complete.
The key environmental issues facing the agency decision makers relate to impacts on residential areas, waterbodies, and wetlands. These issues are addressed in the draft EIS. The draft EIS also evaluates alternatives to the proposal, including system alternatives, new pipeline corridors, and alternative configurations of Northwest's system; route variations and non-standard parallel offsets; abandonment alternatives; and construction method alternatives. The permits, approvals, and consultations required for the project are listed in section 1.5 of the draft EIS; Appendix T lists the authors and principal contributors to the draft EIS.
Any person wishing to comment on the draft EIS may do so. To expedite the FERC staff's receipt and consideration of your comments, the Commission strongly encourages electronic submission of comments on the draft EIS. See Title 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site (
If you wish to mail comments, please mail your comments so that they will be received in Washington, DC, on or before April 25, 2005 and carefully follow these instructions:
Send an original and two copies of your letter to:
• Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1A, Washington, DC 20426;
• Reference Docket Nos. CP05-32-000, -001 on the original and both copies; and
• Label one copy of your comments for the attention of the Gas Branch 2, DG2E.
In addition to or in lieu of sending written comments, you are invited to attend the public comment meetings the FERC staff will conduct in the project area. All meetings will begin at 7 p.m. (PST), and are scheduled as follows:
These meetings will be posted on the Commission's calendar located at
After the comments are reviewed, any significant new issues are investigated, and modifications are made to the draft EIS, a final EIS will be published and distributed by the FERC staff. The final EIS will contain the staff's responses to timely comments received on the draft EIS.
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Anyone may intervene in this proceeding based on this draft EIS. You must file your request to intervene as specified above.
The draft EIS has been placed in the public files of the FERC, the COE, and the WDOE and is available for public inspection at:
Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE, Room 2A, Washington, DC 20426, (202) 502-8371.
U.S. Army Corps of Engineers, Seattle District Library, 4735 East Marginal Way South, Seattle, WA 98134, (206) 764-3728.
Washington State Department of Ecology, Northwest Regional Office, Central File Room, 3190 160th Avenue, SE., Bellevue, WA 98008, (425) 649-7190 or (425) 649-7239.
Washington State Department of Ecology, Southwest Regional Office, Central File Room, 300 Desmond Drive, Lacey, WA 98503, (360) 407-6365.
The draft EIS is also available for viewing on the WDOE's Internet Web site at
A limited number of copies are available from the FERC's Public Reference Room identified above, at no cost to the public. In addition, copies of the draft EIS have been mailed to Federal, State, and local government agencies; elected officials; Native American tribes; local libraries and newspapers; intervenors in the FERC's proceeding; and other interested parties (
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. To register for this service, go to the eSubscription link on the FERC Internet Web site.
Information concerning the involvement of the COE is available from Olivia Romano at (206) 764-6960. Information concerning the involvement of the WDOE is available from Tiffany Yelton at (425) 649-4310.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Cunningham Withdrawal Wells Project involving construction and operation of facilities by Northern Natural Gas Company (Northern) in Pratt and Kingman Counties, Kansas.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice Northern provided to landowners. This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
Based on recent testing and analyses, Northern has determined that gas is migrating away from its Cunningham Storage Field. Northern is seeking authorization to construct and operate two additional withdrawal wells and associated facilities to recapture the gas and integrate it into its existing pipeline infrastructure. Specifically, Northern proposes to install two new wells (#19-14 and #24-42), associated surface equipment, two sections totaling 4,500 feet of 4-inch-diameter gas pipeline, two sections totaling 3,700 feet of 3-inch-diameter liquid pipeline, and a 200 horsepower electrical compressor unit.
To support these facilities, Northern would use a temporary workspace of about 500 square feet at each well site and would permanently use a 100-foot by 200-foot rock or gravel pad and a 50-foot by 360-foot ground bed at each well site. Northern would also use 20-foot wide rock or gravel driveways for access to the well sites.
The proposed facilities would operate within the existing certified parameters of the Cunningham Storage Field.
The location of the project facilities is shown in Appendix 1.
Construction of the proposed facilities would require about 29.0 acres of land. Following construction, about 0.9 acre would be maintained as new aboveground facility sites and 1.3 acres would be maintained as access roads. The remaining 26.8 acres of land would be restored and allowed to revert to its former use.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping”. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission staff requests public comments on the scope of the issues to address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
In the EA we
• Geology and soils.
• Land use.
• Water resources, fisheries, and wetlands.
• Cultural resources.
• Vegetation and wildlife.
• Air quality and noise.
• Endangered and threatened species.
• Public safety.
We will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, State, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
We have already identified issues that we think deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by Northern. This preliminary list of issues may be changed based on your comments and our analysis.
• A potential surface water feature that could potentially contain Arkansas darter habitat may be located within the project area.
• The installation of additional compression may contribute to an increase in noise levels at nearby noise sensitive areas.
• Topsoil separation, restoration and revegetation may need to be addressed through specific mitigation measures.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposed locations, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 2.
• Reference Docket No. CP05-55-000.
• Mail your comments so that they will be received in Washington, DC on or before March 30, 2005.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding.
We may mail the EA for comment. If you are interested in receiving it, please return the Information Request (Appendix 4). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must send one electronic copy (using the Commission's eFiling system) or 14 paper copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (see Appendix 2).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Scoping comments may be filed electronically via the Internet in lieu of paper. The Commission strongly
k. This application has been accepted, but is not ready for environmental analysis at this time.
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The High Falls Development consists of the following existing facilities: (1) A 63-foot-high, 274-foot-long concrete gravity dam with spillway topped with 5-foot-high flashboards; (2) a 110-foot-long eastern wingwall and a 320-foot-long western wingwall; (3) a 46-acre reservoir; (4) an 800-foot-long, 19-foot-wide forebay canal; (5) an 11-foot by 12-foot, 3,581-foot-long tunnel; (6) a 10-foot-diameter, 1,280-foot-long penstock; (7) three 6-foot-diameter, 150-foot-long penstocks; (8) a 30-foot-diameter surge tank; (9) a powerhouse containing three generating units with a total installed capacity of 15,000 kW; (10) a 50-foot-long, 6.9-kV transmission line; and (11) other appurtenances.
The Cadyville Development consists of the following existing facilities: (1) A 50-foot-high, 237-foot-long concrete gravity dam with spillway topped with 2.7-foot-high flashboards; (2) a 200-acre reservoir; (3) a 58-foot-long, 20-foot-wide intake; (4) a 10-foot-diameter, 1,554-foot-long penstock; (5) a powerhouse containing three generating units with a total installed capacity of 5,525 kW; (6) a 110-foot-long, 6.6-kV transmission line; and (7) other appurtenances.
The Mill C Development consists of the following existing facilities: (1) A 43-foot-high, 202-foot-long stone masonry dam with spillway topped with 2-foot-high flashboards; (2) a 7.9-acre reservoir; (3) a 37-foot-long, 18-foot-wide intake; (4) a 11.5-foot to 10-foot-diameter, 494-foot-long penstock; (5) a 11.1-foot to 10-foot-diameter, 84-foot-long penstocks; (6) one powerhouse containing two generating units with a total installed capacity of 2,250 kW; (7) another powerhouse containing a single generating unit with an installed capacity of 3,800 kW; (8) a 700-foot-long, 6.6-kV transmission line; and (9) other appurtenances.
The Kents Falls Development consists of the following existing facilities: (1) A 59-foot-high, 172-foot-long concrete gravity dam with spillway topped with 3.5-foot-high flashboards; (2) a 34-acre reservoir; (3) a 29-foot-long, 22-foot-wide intake; (4) an 11-foot-diameter, 2,652-foot-long penstock; (5) three 6-foot-diameter, 16-foot-long penstocks; (6) a 28-foot-diameter surge tank; (7) a powerhouse containing two generating units with a total installed capacity of 12,400 kW; (8) a 390-foot-long, 6.6-kV transmission line; and (9) other appurtenances.
m. A copy of the application is on file with the Commission and is available for public inspection. This filing may also be viewed on the Web at
n. You may also register online at
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Commission staff does not propose to conduct any on-site scoping meetings at this time. Instead, we will solicit comments, recommendations, information, and alternatives in the Scoping Document (SD).
Copies of the SD outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list. Copies of the SD may be viewed on the Web at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing comments, recommendations, terms and conditions, and prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may
k. This application has been accepted and is now ready for environmental analysis.
l. The proposed project would consist of: (1) A new upper reservoir (Morrell Canyon) having a 180-foot-high main dam and a gross storage volume of 5,750 feet, at a normal reservoir surface elevation of 2,880 feet above mean sea level (msl); (2) a powerhouse with two reversible pump-turbine units with a total installed capacity of 500 megawatts; (3) the existing Lake Elsinore to be used as a lower reservoir; (4) about 30 miles of 500 kV transmission line connecting the project to an existing transmission line owned by Southern California Edison located north of the proposed project and to an existing San Diego Gas & Electric Company transmission line located to the south.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
You may also register online at
n. Public notice of the filing of the initial development application, which has already been given, established the due date for filing competing applications or notices of intent. Under the Commission's regulations, any competing development application must be filed in response to and in compliance with public notice of the initial development application. No competing applications or notices of intent may be filed in response to this notice.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filing. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
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The Norway development includes the following constructed facilities: (1) A 915-foot-long dam consisting of a 410-foot-long, 34-foot-maximum-height earthfill embankment with a concrete corewall; a 225-foot-long, 29-foot-high concrete gravity overflow spillway with flashboards; a 120-foot-long, 30-foot-high concrete gated spillway with three 30-foot wide, 22-foot-high spillway gates; a 18-foot-wide, 30-foot-high trash sluice housing with one 8-foot-wide, 11-foot-high gate; and a 142-foot-long, 64-foot-wide powerhouse integral with the dam containing four vertical Francis turbines-generating units with a rated head of 28 feet, total hydraulic capacity of 3,675 cubic feet per second (cfc) and a total electric output of 7.2 MW; (2) a 10-mile-long, 10-foot average depth, 1,291-acre reservoir; (3) a two-mile-long 69,000 volt transmission line; and (4) appurtenant facilities.
The Oakdale development includes the following constructed facilities: (1) A 1688-foot-long dam consisting of a 126-foot-long, 58-foot-maximum-height east concrete buttress and slab dam
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified deadline date for the particular application, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified deadline date for the particular application. Applications for preliminary permits will not be accepted in response to this notice.
A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
When the application is ready for environmental analysis, the Commission will issue a public notice requesting comments, recommendations, terms and conditions, or prescriptions.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE,” “NOTICE OF INTENT TO FILE COMPETING APPLICATION,” or “COMPETING APPLICATION;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
At the request of U.S. Senators Lincoln Chafee and Jack Reed, and U.S. Representatives Patrick Kennedy and James Langevin, Chairman Pat Wood will meet with the above parties to receive comments on KeySpan LNG, L.P.'s proposed liquefied natural gas (LNG) facility upgrade in Providence, Rhode Island. This meeting will also be attended by Rhode Island Attorney General Patrick Lynch and Providence Mayor David Cicilline. The meeting will be held at the FERC headquarters at 888 First Street NE; Washington, DC, from 9 to 10 a.m. (EST), Thursday, March 17, 2005.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
For further information please contact David Swearingen at (202) 502-6173 or e-mail
As announced in a Notice of Technical Conference issued on January 28, 2005, in the above referenced proceedings, a technical conference will be held on March 4, 2005, from 10 a.m. to 4 p.m. (e.s.t.) at the Seaport World Trade Center (Harborview Ballroom), 200 Seaport Boulevard, in Boston, Massachusetts. Members of the Commission and staff are expected to participate. The purpose of the conference is to discuss market improvements currently being considered by ISO New England Inc. and market participants in New England. Attached is the agenda for the conference.
The conference is open for the public to attend and preregistration is not required; however, attendees are asked to register for the conference on-line by close of business on Wednesday, March 2, at
Transcripts of the conference will be immediately available from Ace Reporting Company (202) 347-3700 or
For additional information, please contact Anna Cochrane at (202) 502-6357;
Environmental Protection Agency (EPA).
Notice of availability of solicitation for proposals.
The Environmental Protection Agency's National Center for Environmental Innovation (NCEI) is giving notice of the availability of its solicitation for proposals from institutions that are interested in promoting innovations that can improve environmental results from State and Federal programs. EPA is seeking proposals to explore innovative environmental policies practices and to support mechanisms by which new approaches can be shared and discussed by federal and state environmental practitioners. The goal is to increase understanding of new approaches, to facilitate use of proven concepts, and to encourage more innovation in environmental programs. EPA anticipates awarding one cooperative agreement under this solicitation. The amount of the award will be $300,000 for a period of up to four years. Eligible recipients include States, territories, Indian Tribes, interstate organizations, intrastate organizations, and possessions of the U.S., including the District of Columbia, public and private universities and colleges, hospitals, laboratories, other public or private nonprofit institutions, and individuals. Nonprofit organizations described in section 501(c)(4) of the Internal Revenue Code that engage in lobbying activities as defined in section 3 of the Lobbying Disclosure Act of 1995 are not eligible to apply. For profit organizations are generally not eligible for funding.
Interested applicants have until April 21, 2005 to submit a proposal.
Due to heightened security requirements, there may be substantial delays in mail service to EPA Hence, EPA strongly encourages applicants to send applications electronically. Electronic applications must be sent to
Sandy Germann, U.S. EPA, MC C604-02, RTP, NC 27711, (919 541-3061),
EPA's National Center for Environmental Innovation (NCEI) promotes new ways to achieve better environmental results. NCEI's work includes developing and testing new approaches, evaluating how well new approaches work, and sharing and applying the lessons learned to improve the efficiency and effectiveness of environmental programs. Consistent with EPA's Innovation Strategy (
While EPA will have participants at the symposia, the primary goal of this project is to identify and highlight environmental innovations that can help States learn about new ways to achieve better environmental results. To this end, the project should be designed to:
The work will involve planning up to two symposia over a four-year period that bring together State and EPA environmental practitioners to share information and engage in a dialogue about experiences and policy issues related to innovative approaches. Planning will be done by a Steering Committee consisting of representatives from the recipient, EPA and States. The Steering Committee, which will have a majority State membership, will assist with analyzing environmental innovations, developing symposia agendas, identifying appropriate speakers and presenters, and promoting the event within their respective organizations.
EPA is interested in supporting the first symposia in late 2005, and a second symposium approximately two years later. In addition to organizing the symposia, the recipient will compile all information presented at the symposia on a publicly available web site. These resources will help extend the learning that occurs at the symposia to other State and EPA employees, as well as other interested stakeholders.
For the full solicitation, please visit:
Federal Mediation and Conciliation Service.
Request for Public Comment on Draft Fiscal Year 2005, Program Guidelines/Application Solicitation for Labor-Management Committees.
The Federal Mediation and Conciliation Service (FMCS) is publishing the Draft Fiscal Year 2005 Program Guidelines/Application Solicitation for the Labor-Management Cooperation Program to inform the public. The program is supported by Federal funds authorized by the Labor-Management Cooperation Act of 1978, subject to annual appropriations. This solicitation contains a change in the application process in an effort to maximize participation under current budget constraints. In the past, applicants were required to submit applications by a fixed date. In Fiscal Year 2005, the date for application submission will be open, contingent upon fund availability. Applications will be accepted for consideration after May 15, 2005 and all funds will be awarded by September 30, 2006.
Jane A. Lorber, Director, Labor Management Grants Program, FMCS 2100 K Street, NW., Washington, DC 20427.
Jane A. Lorber, (202) 271-8868.
The following is the draft solicitation for the Fiscal Year (FY) 2005 cycle of the Labor-Management Cooperation Program as it pertains to the support of labor-management committees. These guidelines represent the continuing efforts of the Federal Mediation and Conciliation Service to implement the provisions of the Labor-Management Cooperation Act of 1978, which was initially implemented in FY81. The Act authorizes FMCS to provide assistance in the establishment and operation of company/plant, area, public sector, and industry-wide labor-management committees which:
(A) Have been organized jointly by employers and labor organizations representing employees in that company/plant, area, government agency, or industry; and
(B) Are established for the purpose of improving labor-management relationships, job security, and organizational effectiveness; enhancing economic development; or involving workers in decisions affecting their working lives, including improving communication with respect to subjects of mutual interest and concern.
The Program Description and other sections that follow, as well as a separately published FMCS Financial and Administrative Grants Manual, make up the basic guidelines, criteria, and program elements a potential applicant for assistance under this program must know in order to develop an application for funding consideration for either a company/plant, area-wide, industry, or public sector labor-management committee. Directions for obtaining an application kit may be found in Section H. A copy of the Labor-Management Cooperation Act of 1978, included in the application kit, should be reviewed in conjunction with this solicitation.
The Labor-Management Cooperation Act of 1978 identifies the following seven general areas for which financial assistance would be appropriate:
(1) To improve communication between representatives of labor and management;
(2) To provide workers and employers with opportunities to study and explore new and innovative joint approaches to achieving organizational effectiveness;
(3) To assist workers and employers in solving problems of mutual concern
(4) To study and explore ways of eliminating potential problems which reduce the competitiveness and inhibit the economic development of the company/plant, area, or industry;
(5) To enhance the involvement of workers in making decisions that affect their working lives;
(6) To expand and improve working relationships between workers and managers; and
(7) To encourage free collective bargaining by establishing continuing mechanisms for communication between employers and their employees through Federal assistance in the formation and operation of labor-management committees.
The primary objective of this program is to encourage and support the establishment and operation of joint labor-management committees to carry out specific objectives that meet the aforementioned general criteria. The term “labor” refers to employees represented by a labor organization and covered by a formal collective bargaining agreement. These committees may be found at either the plant (company), area, industry, or public sector levels.
A plant or company committee is generally characterized as restricted to one or more organizational or productive units operated by a single employer. An area committee is generally composed of multiple employers of diverse industries as well as multiple labor unions operating within and focusing upon a particular city, county, contiguous multicounty, or statewide jurisdiction.
An industry committee generally consists of a collection product or service in the private sector on a local, state, regional, or nationwide level. A public sector committee consists of government employees and mangers in one or more units of a local or state government, managers and employees of public institutions of higher education, or of employees and managers of public elementary and secondary schools. Those employees must be covered by a formal collective bargaining agreement or other enforceable labor-management agreement. In deciding whether an application is for an area or industry committee, consideration should be given to the above definitions as well as to the focus of the committee.
In FY 2005, competition will be open to company/plant, area, private industry, and public sector committees. Special consideration will be given to committee applications involving innovative or unique efforts. All application budget requests should focus directly on supporting the committee. Applicants should avoid seeking funds for activities that are clearly available under other Federal programs (
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(a) A discussion of the strategy the committee will employ to accomplish its goals and objectives;
(b) A listing, by name and title, of all existing or proposed members of the labor-management committee. The application should also offer a rationale for the selection of the committee members (
(c) A discussion of the number, type, and role of all committee staff persons. Include proposed position descriptions for all staff that will have to be hired as well as resumes for staff already on board; noting, that grant funds may not be used to pay for exisiting employees; and assurance that grant funds will not be used to pay for existing employees;
(d) In addressing the proposed approach, applicants must also present their justification as to why Federal funds are needed to implement the proposed approach;
(e) A statement of how often the committee will meet (we require meetings at least every other month) as well as any plans to form subordinate committees for particular purposes; and
(f) For applications from existing committees, a discussion of past efforts and accomplishments and how they would integrate with the proposed expanded effort.
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(a) The submission of data indicating approximately how many employees will be covered or represented through the labor-management committee;
(b) From existing committees, a copy of the existing staffing levels, a copy of the by-laws (if any), a breakout of annual operating costs and identification of all sources and levels of current financial support;
(c) A detailed budget narrative based on policies and procedures contained in the FMCS Financial and administrative Grants Manual;
(d) An assurance that the labor-management committee will not interfere with any collective bargaining agreements; and
(e) An assurance that committee meetings will be held at least every other month and that written minutes of all committee meetings will be prepared and made available to FMCS.
The following criteria will be used in the scoring and selection of applications for award:
(1) The extent to which the application has clearly identified the problems and justified the needs that the proposed project will address.
(2) The degree to which appropriate and
(3) The feasibility of the approach proposed to attain the goals and objectives of the project and the perceived likelihood of accomplishing the intended project results. This section will also address the degree of innovativeness or uniqueness of the proposed effort.
(4) The appropriateness of committee membership and the degree of commitment of these individuals to the goals of the application as indicated in the letters of support.
(5) The feasibility and thoroughness of the implementation plan in specifying major milestones and target dates.
(6) The cost effectiveness and fiscal soundness of the application's budget request, as well as the application's feasibility vis-a-vis its goals and approach.
(7) The overall feasibility of the proposed project in light of all of the information presented for consideration; and
(8) The value to the government of the application in light of the overall objectives of the Labor-Management Cooperation Act of 1978. This includes such factors as innovativeness, site location, cost, and other qualities that impact upon an applicant's value in encouraging the labor-management committee concept.
Eligible grantees include state and local units of government, labor-management committees (or a labor union, management association, or company on behalf of a committee that will be created through the grant), and certain third-party private non-profit entities on behalf of one or more committees to be created through the grant. Federal government agencies and their employees are not eligible.
Third-party private, non-profit entities that can document that a major purpose or function of their organization is the improvement of labor relations are eligible to apply. However, all funding must be directed to the function of the labor-management committee, and all requirements under Part B must be followed. Applications from third-party entities must document particularly strong support and participation from all labor and management parties with whom the applicant will be working. Applications from third-parties which do not directly support the operation of a new or expanded committee will not be deemed eligible, nor will applications signed by entities such as law firms or other third-parties failing to meet the above criteria.
Successful grantees
Applicants who received funding under this program in the last 6 years for committee operations are not eligible to re-apply. The only exception will be made for grantees that seek funds on behalf of an entirely different committee whose efforts are totally outside of the scope of the original grant.
The FY2005 appropriation for this program is $1,488,000 of which at least $1,000,000 will be available competitively for new applicants. Specific funding levels will not be established for each type of committee. The review process will be conducted in such a manner that when possible and where merited, two awards will be made in each category (company/plant, industry, public sector, and area) depending upon applications submitted. After these applications are considered to award, the remaining applications will be considered according to merit without regard to category.
In addition, to the competitive process identified in the preceding paragraph, FMCS will set aside a sum not to exceed thirty percent of its non-reserved appropriation to be awarded on a non-competitive basis. These funds will be used only to support aplications that have been solicited by the Director of the Service and are not subject to the dollar range noted in Section E. All funds returned to FMCS from a competitive grant award may be awarded on a non-competitive basis in accordance with budgetary requirements.
FMCS reserves the right to retain up to five percent of the FY2005 appropriation to contract for program support purposes (such as evaluation) other than administration.
Awards to expand existing or establish new labor-management committees will be for a period of up to 18 months. If successful progress is made during this initial budget period and all grant funds are not obligated within the specified period, these grants may be extended for up to six months. The dollar range of awards is as follows:
Applicants are reminded that these figures
All applicants must provide at least 10 percent of the total allowable project costs in cash. Matching funds may come from state or local government sources or private sector contributions, but may generally not include other Federal
It is the policy of this program to reject all requests for indirect or overhead costs as well as “in-kind” match contributions. In addition, grant funds must not be used to supplant private or local/state government funds currently spent for committee purposes. Funding requests from existing committees should focus entirely on the costs associated with the expansion efforts. Also, under no circumstances may business or labor officials participating on a labor-management committee be compensated out of grant funds for
The Application for Federal Assistance (SF-424) form must be signed by
All eligible applications will be reviewed and scored preliminarily by one or more Grant Review Boards. The Board(s) will recommend selected applications for rejection or further funding consideration. The Director, Labor-Management Grants Program, will finalize the scoring and selection process. The individual listed as contact person in Item 6 on the application form will generally be the only person with whom FMCS will communicate during the application review process. Please be sure that person is available once the application has been submitted.
All FY2005 grant applicants will be notified of results and all grant awards will be made September 30, 2006. Applications that fail to adhere to eligibility or other major requirements will be administratively rejected by the Director, Labor-Management Grants Program.
Individuals wishing to apply for funding under this program should contact the Federal Mediation and Conciliation Service as soon as possible to obtain an application kit. Please consult the FMCS Web site (
These kits and additional information or clarification can be obtained free of charge by contacting the Federal Mediation and Conciliation Service, Labor-Management Grants Program, 2100 K Street, NW., Washington, DC 20427 at (202) 606-8181, (202) 271-8868 or
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
On the second day the Committee will hear an updated from the Board of Scientific Counselors at the National Center for Health Statistics (NCHS) and reports on two HHS initiatives in geocoding. The Committee with also discuss plans for its annual report to Congress and there will be reports from the Subcommittees and a discussion of agendas for future Committee meetings.
The times shown above are for the full committee meeting. Subcommittee breakout sessions are scheduled for late in the afternoon of the first day and in the morning prior to the full Committee meeting on the second day. Agendas for these breakout sessions will be posted on the NCVHS Web site (URL below) when available.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458-4EEO (4336) as soon as possible.
A notice announcing the availability of fiscal year (FY) 2005 funds for a grant to: (a) provide trainees the opportunity to learn about broad, cross-cutting public health policy and program development at the Federal, state and local government level and (b) make progress toward achieving the prevention objectives of Healthy People 2010 was published in the
The notice is amended as follows: On page 7740, Column 1, First line: change to “Application Deadline: April 1, 2005.” On page 7743, Column 1, Section 1V.5, please include a third bullet that states: Indirect costs cannot exceed 8% of the total direct cost.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified laboratories is published in the
If any laboratory has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1035, 1 Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Pub. L. 100-71. Subpart C of the Mandatory Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines dated April 13, 2004 (69 FR 19644), the following laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
*The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Office of the Secretary, DHS.
Notice of Federal Advisory Committee meeting.
The Homeland Security Advisory Council (HSAC) will hold a meeting for the purposes of receiving reports and briefings, and holding member deliberations. The HSAC will receive reports from: the HSAC Task Force on Intelligence and Information Sharing and State Fusion Centers, Chaired by Governor Mitt Romney, Governor of Massachusetts; the HSAC Task Force on Private Sector Information Sharing, Chaired by Mayor Patrick McCrory, Mayor of Charlotte, North Carolina; the HSAC Task Force on Critical Infrastructure Protection and Resilience, Chaired by Dr. Ruth David, CEO of Analytic Services, Inc.; and the HSAC Task Force on the Prevention of Weapons of Mass Effect Attacks on American Soil, Chaired by Dr. Lydia Thomas, CEO of Mitretek Systems. Additionally, the HSAC will receive detailed briefings covering specific critical infrastructure vulnerabilities, interdependencies, infrastructure resilience, and vulnerability mitigation. The HSAC will also hold roundtable deliberations and discussions among HSAC members.
This meeting will be held in Charlotte, North Carolina on Tuesday, March 22, 2005.
This meeting will be partially closed; the open portions of the meeting for the purpose of receiving the Task Force reports listed above will be held at the Westin Charlotte, 601 South College Street, Charlotte, NC 28202 in
You may submit comments, identified by docket number, by
• EPA Federal Partner EDOCKET Web Site:
• Federal eRulemaking Portal:
• E-mail:
• Fax: (202) 772-9718.
• Mail: Mike Miron, Homeland Security Advisory Council, Department of Homeland Security, Washington, DC 20528.
For additional information concerning the meeting, please contact Mike Miron or an Executive Staff Member of the HSAC via e-mail at
In particular, the administrative portion of the meeting will be conducted “solely to discuss administrative matters of the advisory committee.” Accordingly, it will be closed pursuant to 41 CFR 102-3.160(b).
At portions of the meeting where the committee will be addressing specific critical infrastructure vulnerabilities; interdependencies; infrastructure resilience; vulnerability mitigation; and investigative strategies designed to identify and expose money laundering schemes to prosecution. Discussions will include trade secrets and commercial or financial information that is privileged or confidential, and matters which, if disclosed, would be likely to frustrate significantly the implementation of a proposed agency action which has not been disclosed to the public nor is required by law to be disclosed to the public. Accordingly, the Secretary has determined that these portions of the meeting must be kept closed as well, pursuant to 5 U.S.C. app. 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(9)(B).
Coast Guard, DHS.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of five Information Collection Requests (ICRs). The ICRs comprise (1) 1625-0013, Plan Approval and Records for Load Lines, (2) 1625-0032, Vessel Inspection Related Forms and Reporting Requirements Under Title 46 U.S. Code, (3) 1625-0037, Certificates of Compliance, Boiler/Pressure Vessel Repairs, Cargo Gear Records, and Shipping Papers, (4) 1625-0041, Various International Agreement Pollution Prevention Certificates and Documents, and Equivalency Certificates, and (5) 1625-0042, Requirements for Lightering of Oil and Hazardous Material Cargoes. Before submitting the ICRs to OMB, the Coast Guard is inviting comments on them as described below.
Comments must reach the Coast Guard on or before May 6, 2005.
To make sure that your comments and related material do not enter the docket [USCG-2005-20457] more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation (DOT), room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part
Copies of the complete ICRs are available through this docket on the Internet at
Ms. Barbara Davis, Office of Information Management, telephone 202-267-2326, or fax 202-267-4814 for questions on these documents; or telephone Ms. Andrea M. Jenkins, Program Manager, Docket Operations, 202-366-0271, for questions on the docket.
We encourage you to participate in this request for comment by submitting comments and related materials. We will post all comments received, without change, to
1.
This information collection is required to ensure that certain vessels are not loaded deeper than appropriate for safety. Vessels over 150 gross tons or 79 feet in length engaged in commerce on international or coastwise voyages by sea are required to obtain a Load Line Certificate. This collection also incorporates the Great Lakes load lines rule.
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Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species
Written data, comments or requests must be received by April 6, 2005.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone (703) 358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The applicant requests permits to export three male and two female tigers (
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by April 6, 2005.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone (703) 358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The applicant requests a permit to export one male captive-born tiger
The applicant requests a permit to export biological samples from Northern white rhinoceros
The applicant requests a renewal of their permit to import biological samples from Hawksbill sea turtles
The applicant requests a renewal of their permit to import biological samples from Kemp's ridley sea turtles
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species and/or marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax (703) 358-2281.
Division of Management Authority, telephone (703) 358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by April 6, 2005.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The applicant requests a permit to import the sport-hunted trophy of one male cheetah
The applicant requests a permit to import one captive born male Somali wild ass
The applicant requests a permit to import one male and one female live captive born cheetah
The applicant requests a permit to import the sport-hunted trophy of one male bontebok
The applicant requests a permit to import the sport-hunted trophy of one male bontebok
The applicant requests a permit to export and re-import non-living museum specimens of endangered and threatened species previously accessioned into the applicant's collection for scientific research. This notification covers activities to be conducted by the applicant over a five-year period.
The public is invited to comment on the following application for a permit to conduct certain activities with marine mammals. The application was submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361,
The applicant requests a permit to import a polar bear
Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce; Department of the Army, Corps of Engineers, Defense.
Notice of intent.
Pursuant to the National Environmental Policy Act (NEPA), we, the U.S. Fish and Wildlife Service (Service), are issuing this notice to advise the public that we intend to gather information necessary to prepare, in cooperation with the National Oceanic and Atmospheric Administration's Marine Fisheries Service (NOAA) and U.S. Army Corps of Engineers (Corps), an Environmental Impact Statement (EIS) and Environmental Impact Report (EIR) for the proposed Placer County Conservation Plan (PCCP). The Service is the lead agency for this EIS, and NOAA and the Corps are cooperating agencies.
Placer County Planning Department, the Resource Conservation District, the City of Lincoln, the Placer County Water Agency, and the South Placer Regional Transportation Authority (Applicants) intend to apply to the Service and NOAA for 50-year Endangered Species Act (ESA) permits. The permits are needed to authorize the incidental take of species that could occur as a result of implementation activities proposed to be covered under the PCCP.
The Service, in cooperation with NOAA and the Corps, provides this notice to: (1) Describe the proposed action and possible alternatives; (2) advise other Federal and State agencies, affected Tribes, and the public of our intent to prepare an EIS/EIR; (3) announce the initiation of a public scoping period; and (4) obtain suggestions and information on the scope of issues and alternatives to be included in the EIS/EIR.
Written comments should be received on or before April 6, 2005. Public meetings will be held on: Tuesday, March 15, 2005, from 6 p.m. to 8 p.m.; Wednesday, March 16, 2005, from 6 p.m. to 8 p.m.; and, Thursday, March 17, 2005, from 7:30 p.m. to 9:30 p.m.
The public meetings will be held at the following locations: (1) Tuesday, March 15, 2005, at the City of Roseville Corporation Yard, Rooms 2 and 3, 2005 Hilltop Circle, Roseville, CA 95747; (2) Wednesday, March 16, 2005, at Placer County Planning Commission Chambers, 11414 B Avenue, Auburn, CA 95603; and, (3) Thursday, March 17, 2005, at City of Lincoln McBean Pavilion, 65 McBean Park Drive, Lincoln, CA 95648.
Information, written comments, or questions related to the preparation of the EIS/EIR and NEPA process should be submitted to Lori Rinek, Chief, Conservation Planning and Recovery Division, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, California 95825; FAX (916) 414-6713.
Jesse Wild, Fish and Wildlife Biologist, or Lori Rinek, Chief, Conservation Planning and Recovery Division at the Sacramento Fish and Wildlife Office at (916) 414-6600.
Persons needing reasonable accommodations in order to attend and participate in the public meeting should contact Lori Rinek as soon as possible (
Section 9 of the ESA and Federal regulations prohibit the “take” of a fish and wildlife species listed as endangered or threatened. Under the ESA, the following activities are defined as take: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animal species, or attempt to engage in such conduct (16 U.S.C. 1538). However, under section 10(a) of the ESA, we may issue permits to authorize “incidental take” of listed species. “Incidental take” is defined by the ESA as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations
Take of listed plant species is not prohibited under the ESA and cannot be authorized under a section 10 permit. We propose to include plant species on the permit in recognition of the conservation benefits provided for them under the PCCP. All species included on the permit would receive assurances under the Service's “No Surprises” regulation, if at the time of issuance of the incidental take permit the “No Surprises” regulation is in effect (63 FR 8859).
Currently, the Applicants intend to request permits authorizing the incidental take of 29 animal species (8 federally listed and 21 unlisted animal species) for 50 years during the course of conducting otherwise lawful land use or development activities on public and private land in Western Placer County. The permit would also cover 5 currently unlisted plants. Listed species proposed to be covered that are administered by the Service are the federally-endangered vernal pool tadpole shrimp (
The 25 unlisted species (20 animal and 5 plant species) proposed to be covered under the PCCP that fall within the Service's jurisdiction are the State-threatened Swainson's hawk (
The planning area that the PCCP proposes to cover consists of approximately 270,000 acres in Western Placer County, California. Western Placer County is bordered on the north by Yuba and Nevada Counties, on the west by Sutter County, on the south by Sacramento County, and on the east by the upper boundaries of the watersheds which contain the eastern limits of the City of Auburn. Excluded areas include the cities of Roseville, Rocklin, Loomis, and Auburn. Infill and new growth in these areas are not proposed to be covered by the permits based on the PCCP. The PCCP would be the first of three independently viable conservation plans that together encompass all of Placer County. We anticipate that planning for the two other conservation plans will be initiated beginning in Spring 2005; however, the conservation strategies in this PCCP will not rely on the other two.
Proposed implementation activities that may be covered under the PCCP include direct actions by Applicants and indirect actions by Applicants that would authorize or induce urban development and associated infrastructure, such as County and/or city projects related to road maintenance/construction, water delivery infrastructure, drainage, flood control, sanitary systems, solid waste management, and new capital facility construction. Other proposed covered activities may include fuel load management, resource management plan implementation, habitat restoration activities, and recreational projects (such as parks, trails, boat ramps). Impacts to agriculture may also be included in the EIS/EIR, because the agencies may be asked to cover some aspects of agricultural practices in the proposed permits if the actions are associated with those of the Applicants.
Under the PCCP, the effects of proposed covered activities on covered species are expected to be minimized and mitigated through participation in a conservation program, which would be fully described in the PCCP. Covered activities would be carried out in accordance with the PCCP which includes a program designed to ensure the continued conservation of natural communities and threatened and endangered species in Western Placer County, and to resolve potential conflicts between otherwise lawful activities and the conservation of habitats and species on non-Federal land in Western Placer County. Components of this conservation program are now under consideration by the Service, NOAA, and the Applicants. These components will likely include avoidance and minimization measures, monitoring, adaptive management, and mitigation measures consisting of preservation, restoration, and enhancement of habitat.
Although other public and private entities or individuals have participated in development of the PCCP and may benefit by the issuance of incidental take permits, Placer County has accepted responsibility for coordinating the preparation of the PCCP, submission of the permit applications, and preparation of an EIS, under the Service's supervision, for Service and Cooperating Agency review and approval. As a Cooperating Agency, NOAA may use the EIS analysis for the purposes of supporting a decision as to whether to issue an incidental take permit to the Applicants based on the proposed PCCP. Development of the PCCP has involved a public input process that has included open meetings of a Biological Stakeholder Working Group and public workshops with the Placer County Board of Supervisors. It is anticipated that the PCCP will be implemented through the incidental take permit and an Implementation Agreement.
The Applicants are expected to apply to the Corps for a Clean Water Act (CWA) Section 404 Programmatic General Permit (PGP). As a Cooperating Agency, the Corps may use the EIS analysis for the purposes of supporting the decision whether to issue the proposed PGP. Section 404 of the CWA regulates and requires Corps authorization for certain discharges of dredged or fill material into waters of the United States (33 CFR 323.3). A PGP is among the types of general permits
A Natural Community Conservation Plan (NCCP) is being incorporated into the PCCP in coordination with the California Department of Fish and Game (CDFG) under the State of California's Natural Community Conservation Planning Act (NCCPA). The Applicants are expected to pursue an incidental take authorization from CDFG in accordance with section 2835 of the NCCPA. The California Endangered Species Act (CESA) prohibits the “take” of wildlife species listed as endangered or threatened by the California Fish and Game Commission (California Fish and Game Code, section 2080). The CESA defines the term “take” as: Hunt, pursue, catch, capture or kill, or attempt to engage in such conduct (California Fish and Game Code, section 86). Pursuant to section 2835 of the NCCPA (California Fish and Game Code section 2835), CDFG may issue a permit that authorizes the take of any CESA listed species or other species whose conservation and management is provided for in a CDFG-approved NCCP.
The Applicants are also expected to apply to CDFG for a Master Streambed Alteration Agreement (California Fish and Game Code, section 1600); and to apply to the Regional Water Quality Control Board for CWA Section 401 water quality certification in compliance with the California Porter-Cologne Water Quality Control Act.
Although the EIS will analyze the environmental impacts associated with all of the activities in the PCCP, the focus of our decision based on this EIS will be effects to proposed covered species and the issuance of the Services' ESA permits. Pursuant to the California Environmental Quality Act (CEQA), a separate Notice of Preparation for the EIR will be posted by the County and issued through the California State Clearinghouse concurrently with this Notice.
Jones and Stokes Associates has been selected to prepare the EIS/EIR. The joint document will be prepared in compliance with NEPA and CEQA. Although Jones and Stokes Associates will prepare the EIS/EIR, the Service, as the NEPA Lead Agency, will be responsible for the purpose, need, scope and content of the document for NEPA purposes, and the Corps and NOAA will be Cooperating Agencies for NEPA. The County, as the CEQA Lead Agency, will be responsible for the scope and content of the document for CEQA purposes. Responsible Agencies for CEQA purposes include CDFG, the permitting entity pursuant to California Fish and Game Codes 1600 and 2835, and Regional Water Quality Control Board, the permitting entity pursuant to Section 401 of the CWA.
The EIS/EIR will consider the proposed action, the issuance of an ESA incidental take permit, no action (no permit), and a reasonable range of alternatives. A detailed description of the proposed action and alternatives will be included in the EIS/EIR. The alternatives to be considered for analysis in the EIS/EIR may include: Variations of the geographical coverage of the permits, variations in the amount and type of conservation; variations of the scope or type of covered activities or covered species; variations in permit duration; variations on the types of Federal and State permits issued under the program; no project/no action; or, a combination of these elements.
The EIS/EIR will also identify potentially significant impacts on biological resources, land use, air quality, water quality, mineral resources, water resources, economics, and other environmental resource issues that could occur directly or indirectly with implementation of the proposed action and alternatives. For all potentially significant impacts, the EIS/EIR will identify mitigation measures where feasible to reduce these impacts to a level below significance.
The following primary issues are to be addressed during the scoping and planning process for the PCCP and EIS/EIR: (1) The determination of potential effects of each alternative on species and natural communities covered under the proposed HCP/NCCP; (2) consideration of whether the level and extent of urban development defined under each alternative can be adequately mitigated within the lands in the conservation opportunity area; (3) consideration of whether an adequate system of reserves can be established in the conservation area and whether such a reserve system will support habitat of covered species equal to or greater than the habitat lost from urban development; (4) determination of whether the direct and indirect impacts of covered urban development and other activities will be adequately mitigated (issues to be addressed will include land use, traffic, air quality, cultural resources, water resources, and biological resources); and (5) consideration of cumulative impacts.
Environmental review of the PCCP will be conducted in accordance with the requirements of NEPA (42 U.S.C. 4321
Bureau of Indian Affairs, Interior.
Notice.
In accordance with the Surface Transportation and Uniform Relocation Assistance Act of 1987, and as authorized by the Secretary of Transportation, the Bureau of Indian Affairs intends to make funds available to federally-recognized Indian tribes on an annual basis for implementing traffic safety projects, which are designed to reduce the number of traffic crashes, deaths, injuries and property damage within Indian country. Because of the limited funding available for this
Requests for funds must be received by May 1 of each program year. Requests not received in the office of the Indian Highway Safety Program by close of business on May 1 will not be considered. The information packets will be distributed by the end of January of each program year.
Each tribe must submit their request to the Bureau of Indian Affairs, Division of Safety and Risk Management, Attention: Indian Highway Safety Program Coordinator, 201 3rd Street, NW., Suite 310, Albuquerque, NM 87102.
Tribes should direct questions on the grant program to Patricia Abeyta, Coordinator, Indian Highway Safety Program or to Charles L. Jaynes, Program Administrator, Bureau of Indian Affairs, 201 3rd Street, NW., Suite 310, Albuquerque, New Mexico 87102; Telephone: (505) 245-2104.
The Federal-Aid Highway Act of 1973 (Pub. L. 93-87) provides for U.S. Department of Transportation (DOT) funding to assist Indian tribes in implementing Highway Safety projects. The projects must be designed to reduce the number of traffic crashes and their resulting fatalities, injuries, and property damage within Indian reservations. All federally-recognized Indian tribes on Indian reservations are eligible to receive this assistance. All tribes receiving awards of program funds are reimbursed for eligible costs incurred under the terms of 23 U.S.C. 402 and subsequent amendments.
For purposes of application of the Act, Indian reservations are collectively considered a “State” and the Secretary of the Interior is considered the “Governor of a State.” The Secretary of the Interior delegated the authority to administer the programs for all the Indian Nations in the United States to the Assistant Secretary—Indian Affairs. The Assistant Secretary—Indian Affairs further delegated the responsibility for administration of the Indian Highway Safety Program to the Central Office, Division of Safety and Risk Management (DSRM), located in Albuquerque, New Mexico. The Chief, DSRM, as Program Administrator of the Indian Highway Safety Program, has staff members available to provide program and technical assistance to the Indian tribes. The Indian Highway Safety Program maintains contacts with the DOT with respect to program approval, funding and receiving technical assistance. DOT, through the National Highway Traffic Safety Administration (NHTSA), is responsible for ensuring that the Indian Highway Safety Program is carried out in accordance with 23 CFR part 1200 and other applicable Federal statutes and regulations.
The following highway safety program areas have been identified as eligible for funding under 23 CFR part 1205 based on an identifiable traffic safety problem on tribal lands:
• Alcohol Countermeasures.
• Police Traffic Services.
• Occupant Protection.
• Traffic Records.
• Emergency Medical Services.
• Safe Communities.
• Motorcycle Safety.
• Pedestrian and Bicycle Safety.
• Speed Control.
Proposals are being solicited for the following program areas:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
BIA will send information packets to the Tribal Leader of each federally-recognized Indian tribe by the end of January of each program year. On receiving the information packet, each tribe, to be eligible, must prepare a proposed project based on the following guidelines:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Each tribe must send its funding request to the BIA Indian Highway Safety Program office in Albuquerque, New Mexico. The Indian Highway Safety Program office must receive the request by close of business
Each funding request will be reviewed and evaluated by the BIA's Indian Highway Safety Program, Law Enforcement, Department of Education, Office of Alcohol and Substance Abuse, and Division of Transportation staff. Each staff member, by assigning points to the following five criteria, will rank each of the proposals based on the following criteria:
Criteria 1, the strength of the problem identification based on verifiable, current and applicable documentation of the traffic safety problem (40 points maximum).
Criteria 2, the quality of the proposed solution plan based on aggressive but attainable performance measures, time-framed action plan, cost eligibility, amount, if any, of in-kind funding/support provided by the tribe, and necessity and reasonableness of the budget (30 points maximum).
Criteria 3, details on how the tribe will evaluate and show progress on its performance measures regarding the Evaluation component (20 points maximum).
Criteria 4, supporting documentation of the submitting tribe's qualifications, commitment, and community involvement in traffic safety (10 points maximum).
Criteria 5, tribes are eligible for bonus points (up to 10 extra points) if all reporting requirements have been met in previous years.
The tribes selected to participate will be notified by letter. Upon notification, each tribe selected must provide a duly authorized tribal resolution. The certification and resolution must be on file before grant funds for the tribe can be released.
The Program Administrator will notify each tribe of non-selection. The tribe will be provided the reason for non-selection. Non-selected proposals may be retained, with score sheets, for 90 days.
Uniform grant administration procedures have been established on a national basis for all grant-in-aid programs by DOT/NHTSA under 49 CFR part 18, “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.” NHTSA and FHWA have codified uniform procedures for State Highway Safety Programs in 23 CFR parts 1200, 1205 and 1251. OMB Circular A-87 and the “Highway Safety Grant Funding Policy for NHTSA/FHWA Field-Administered Grants” are the established cost principles applicable to grants and contracts through BIA and with tribal governments. It is the responsibility of BIA's Indian Highway Safety Program office to establish operating procedures consistent with the applicable provisions of these rules.
Tribal financial systems must provide:
(1) Current and complete disclosure of project activities.
(2) Accurate and timely recordkeeping.
(3) Accountability and control of all grant funds and equipment.
(4) Comparison of actual expenditures with budgeted amounts.
(5) Documentation of accounting records.
(6) Appropriate auditing of Highway Safety Projects, which will be included in the Tribal A-133 single audit requirement.
Tribes will provide monthly program status reports and a corresponding reimbursement claim to the Coordinator, BIA Indian Highway Safety Program, 201 3rd Street, NW., Suite 310, Albuquerque, New Mexico 87102. These will be submitted no later than 10 work days beyond the reporting month.
During the program year, it is the responsibility of the BIA Indian Highway Safety Program office to review the implementation of tribal traffic safety plans and programs, monitor the progress of their activities and expenditures, and provide technical assistance as needed.
BIA will conduct an annual performance evaluation for each Highway Safety Project. The evaluation will measure the actual accomplishments to the planned activity. BIA will evaluate the project
Bureau of Indian Affairs, Interior.
Notice of Class III Gaming Compact taking effect.
Notice is given that the Tribal-State Gaming Compact between the Seneca-Cayuga Tribe and the State of Oklahoma is considered approved and is in effect.
March 7, 2005.
George T. Skibine, Director, Office of Indian Gaming Management, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under Section 11 (d)(7)(D) of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior must publish in the
Bureau of Indian Affairs, Interior.
Notice of Class III Gaming Amendment taking effect.
Notice is given that the Amendment to the Tribal-State Compact between the St. Regis Mohawk Tribe and the State of New York is considered to have been approved and is in effect.
March 7, 2005.
George T. Skibine, Director, Office of Indian Gaming Management, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under Section 11 (d)(7)(D) of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior must publish in the
Minerals Management Service (MMS), Interior.
Notice of a revision of a currently approved information collection (OMB Control Number 1010-0119).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The title of this information collection request (ICR) is “30 CFR 208—Sale of Federal Royalty Oil; Sale of Federal Royalty Gas; and Commercial Contracts (Forms MMS-4070, Application for the Purchase of Royalty Oil; MMS-4071, Letter of Credit; and MMS-4072, Royalty-in-Kind Contract Surety Bond).” We changed the title of this ICR to clarify the regulatory language we are covering under 30 CFR part 208 and the Royalty-in-Kind (RIK) 5-Year Business Plan, and to reflect OMB consolidation approval of five RIK-related ICRs. Those ICRs were titled:
•
•
•
•
•
In the five ICRs, much of the general information was repeated and cross referenced. This consolidated ICR 1010-0119 eliminates that duplication of effort and redundancy of data. It also provides for all RIK information-collection requirements to be reviewed on a MMS RIK operational program-wide basis.
Submit written comments on or before May 6, 2005.
Submit written comments to Sharron L. Gebhardt, Lead Regulatory
Sharron L. Gebhardt, telephone (303) 231-3211, fax (303) 231-3781, or e-mail
The MMS is responsible for ensuring that all revenues from Federal and Indian mineral leases are accurately collected, accounted for, and disbursed to recipients. Historically, most of these revenues have been received in the form of cash royalty payments,
The Federal Government's MMS RIK pilot program has become a permanent operational program after several years of pilot project testing. The MMS RIK operational program takes payment from mineral lessees “in kind” in the form of produced crude oil and natural gas volumes, rather than in cash payments. The lessee transfers the title of the oil or gas to the Federal Government, and MMS sells the received product (oil or gas) to agents in the marketplace and disburses revenues as prescribed by law. The MMS sells some product competitively in the unrestricted marketplace, and other RIK product is sold competitively to eligible refiners (a small and independent refiner, as defined in 30 CFR 208.2). Additionally, when directed, MMS delivers the RIK product to other Federal Agencies, as has been the case during the fill of the Strategic Petroleum Reserve (SPR), directed by the President in 2001, with scheduled completion in 2005. Specifically, within the MMS RIK operational program, RIK conducts the eligible refiner program and the SPR program, in addition to the Wyoming crude oil, offshore unrestricted crude oil, and offshore natural gas programs.
The MMS has consolidated and revised existing procedures and policies guiding the sale of onshore and offshore royalty crude oil and natural gas to establish uniformity within the regulatory and operational framework, to provide industry with a more efficient and responsive MMS RIK operational program, and to improve the Federal Government's administration of this program. For example, several of the reporting requirements for eligible refiners under 30 CFR part 208 have been combined with reporting requirements for other RIK purchasers. However, due to the unique nature of the sale of crude oil to eligible refiners, certain requirements pertain only to that eligible refiner program.
Applicable citations of the laws pertaining to the taking and selling of the Federal Government's royalty share of mineral leases in the form of production (royalties “in kind”) include 30 CFR part 208; Mineral Leasing Act of 1920, section 36, as amended (30 U.S.C. 192); Outer Continental Shelf Lands Act of 1953, section 27, as amended (43 U.S.C. 1353); 30 U.S.C. 189 pertaining to Public Lands; 30 U.S.C. 359 pertaining to Acquired Lands; and 43 U.S.C. 1334 pertaining to OCS Lands. These citations, as well as specific language in the actual lease documents, authorize the Secretary to sell royalty oil and gas accruing to the United States. The standard lease terms state that royalties are due in amount or in value. In addition, these citations authorize the Secretary to prescribe proper rules and regulations and to do any and all things necessary to accomplish the purpose of applicable laws. The MMS directs communications between MMS operators and RIK purchasers through commercial contracts, situation-specific “Dear Operator” letters, or in the case of eligible refiners, through regulations at 30 CFR part 208. Proprietary information submitted to MMS under this collection is protected, and no items of a sensitive nature are collected.
When the Secretary determines that eligible refiners do not have access to adequate supplies of oil, the Secretary may dispose of any royalty oil taken by conducting a sale of such oil, through an allocation process to eligible refiners. For the eligible refiners to participate in the eligible refiner RIK program, according to 30 CFR 208.4(a) and (b), MMS periodically completes a needs assessment to determine if eligible refiners continue to require access to domestic crude oil at competitive prices. The most recent assessment was completed in early 2004. The first step in this process is to issue a
Under 30 CFR 208.4(c), the MMS, on behalf of the Secretary, performs a Determination of Need prior to issuing a notice of availability of sale in the
The eligible refiners interested in purchasing royalty oil must submit Form MMS-4070, Application for the Purchase of Royalty Oil, in accordance with instructions in the Determination of Need notice and instructions issued by MMS for completion of the form. The Federal Government's administration of the eligible refiner program is aided significantly by the collection of information requested on Form MMS-4070. The MMS uses the information collected on Form MMS-4070 to determine the eligibility of refiners wanting to enter into contracts to purchase royalty oil and to provide a basis for the allocation of available royalty oil among eligible refiners, when necessary; that is, they meet the small refiner eligibility requirements issued by the Small Business Administration, as explained under 30 CFR 208.6. Under 30 CFR 208.10(e), eligible refiners who
Collection of RIK oil and gas for eligible refiners and other RIK purchasers requires communication between MMS and the operators of a lease to ensure accurate and timely delivery of MMS's royalty share of production volumes. In order to take MMS's crude oil or natural gas in kind, MMS, as the responsible steward of oil and gas royalties, must direct operators of affected MMS leases to provide three types of communication:
• Report information about the projected volumes and qualities of RIK crude oil or natural gas production the operator expects to make available for delivery in the following month, and report corrections to those projected volumes and qualities for previous months, submitting monthly no later than 10 days before the first day of following month;
• Report cost/invoicing information about transportation charges incurred for delivering the RIK product to the delivery point, when applicable; and
• Report month-end summary information (lease imbalance statement) regarding total RIK crude oil or natural gas volumes and qualities needed to carry over to the next month to resolve aggregated imbalances that have occurred in prior months of RIK deliveries.
These information requirements are standard business practices in the oil and gas industry.
In marketing the product, information received through MMS's directed communication is essential for MMS to ensure the delivery and acceptance of verifiable quantities and qualities of oil and gas. In cases when MMS is directed to deliver the product to other Federal Agencies, these types of information are necessary so that exchange contractors can arrange to timely accept accurate amounts and qualities of royalty oil that will be delivered by MMS's exchange partner and for MMS to verify timely fulfillment of operators' and lessees' royalty obligations to the Federal Government.
Title 30 CFR 208.9 requires that eligible refiners who purchase royalty oil must submit to MMS two copies of any written third-party agreements, or two copies of a complete written explanation of any oral third-party agreements, relating to the method and costs of delivery of royalty oil, or crude oil exchanged for the royalty oil, from the point of delivery under the contract to the purchaser's refinery. Also, this section requires that the purchaser must submit copies of agreements pertaining to quality differentials that may occur between the lease(s) and the delivery point(s). However, in practice MMS does not currently require the eligible refiners to submit these agreements.
The Secretary is obligated to hold competition when selling to the public to protect actual RIK production before, during, and after any sale, and to obtain a fair return on royalty production sold. The MMS must fulfill those obligations for the Secretary. The reporting requirements are (1) actual offers that potential purchasers will submit when MMS offers production for competitive sale; (2) offerors' statements of financial qualification; and (3) surety instruments, such as a Letter of Credit (LOC), bond, prepayment, or parent guaranty when financial qualification is not sufficient.
The MMS will evaluate offers, which competing potential purchasers may choose to submit, in response to a variety of types of offerings in the MMS RIK operational program. The format for offers will be specified in the offering and may vary among offerings. The MMS may offer royalty oil and gas production by Invitation for Offers (IFOs). The IFO will be open only to offerors who have previously established their qualifications. The MMS will evaluate all offers to determine which combination of price and other terms comprises the best return to the Federal Treasury and to any affected State.
The MMS may request that a bidder submit its public-available statement of its financial condition (brought briefly up to date, if needed) or other related qualification information. The MMS evaluates the qualification information to determine whether bidders are reliable to follow through on payment of the dollar amount (or delivery of exchange production) offered as they bid, and to determine their ability to timely perform activities attendant to the taking of oil and/or gas. The MMS performs this step to reduce the risk to the Federal Government in these transactions.
Under MMS's current practice, eligible refiners are subject to the same requirements as other RIK purchasers regarding MMS-acceptable surety instruments and qualification information. Reporting requirements in 30 CFR 208.11 discuss surety instruments for eligible refiners. Surety instruments include the broad field of financial instruments that may be collected, such as bonds, prepayments, and parent guaranties. When required, eligible refiners and other RIK purchasers must provide surety documents to protect the Federal Government's interest, such as but not limited to, Form MMS-4071, Letter of Credit; Form MMS-4072, Royalty-In-Kind Contract Surety Bond; or other acceptable commercial surety, within 5 business days prior to the first delivery under the contract. For bonds, MMS requires a specific MMS-approved format.
We are revising this ICR to include reporting requirements that were overlooked in the previous renewal, and we have adjusted the burden hours accordingly. The following chart shows the breakdown of the estimated burden hours by CFR section and paragraph.
The PRA also requires agencies to estimate the total annual reporting “non-hour cost” burden to respondents or recordkeepers resulting from the collection of information. We have not identified non-hour cost burdens for this information collection. If you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information; monitoring, sampling, and testing equipment; and record storage facilities. Generally, your estimates should not include equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our ICR submission for OMB approval, including appropriate adjustments to the estimated burden. We will provide a copy of the ICR to you without charge upon request. The ICR also will be posted on our Web site at
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on November 2, 2004, Norac, Inc., 405 S. Motor Avenue, PO Box 577, Azusa, California 91702, made application by renewal to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of THC Tetrahydrocannabinols (7370), a basic class of controlled substance listed in Schedule I.
The company plans to manufacture the listed controlled substances in bulk for formulation into the pharmaceutical controlled substance marinol.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: Federal Register Representative, Liaison and Policy Section (ODL) or any being sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, Virginia 22301; and must be filed no later than May 6, 2005.
Medicare Payment Advisory Commission.
Notice of meeting.
The Commission will hold its next public meeting on Thursday, March 10, 2005, and Friday, March 11, 2005, at the Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Avenue, NW., Washington, DC. The meeting is tentatively scheduled to begin at 9:30 a.m. on March 10, and at 9 a.m. on March 11.
Topics for discussion include findings on congressionally mandated studies on critical access hospitals and risk adjustment and other issues related to the adjusted average per capita cost (AAPCC). The Commission will also discuss Medicare Advantage plans, implementation issues with the new Medicare Part D benefit, outpatient pharmacy services in hospitals, and reform issues for various post-acute care settings. The Commission will also host a panel on the use of clinical- and cost-effectiveness information by Medicare.
Agendas will be e-mailed approximately one week prior to the meeting. The final agenda will be available on the Commission's Web site (
MedPAC's address is: 601 New Jersey Avenue, NW., Suite 9000, Washington, DC 2001. The telephone number is (202) 220-3700.
Diane Ellison, Office Manager, (202) 220-3700.
Millennium Challenge Corporation.
10 a.m.-12 p.m., Monday, March 14, 2005.
Department of State, C Street Entrance, Washington, DC 20520.
Information on the meeting may be
Meeting will be closed to the public.
The Board of Directors (the “Board”) of the Millennium Challenge Corporation (“MCC”) will hold a quarterly meeting of the Board to discuss and consider a proposed Millennium Challenge Account (“MCA”) Compact under the provisions of Section 605(a) of the Millennium Challenge Act, codified at 22 U.S.C. 7706(a); other information relating to Compact development efforts with other MCA-eligible countries; the MCC Threshold Program; and certain administrative matters. The meeting will be closed to the public because it is expected to involve the consideration of classified information and information relating to the internal personnel practices of MCC.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council, Aeronautics Research Advisory Committee (ARAC).
Wednesday, March 23, 2005, 8:30 a.m. to 5:15 p.m.
National Aeronautics and Space Administration, 300 E Street, SW., Room 6H46, Washington, DC 20546.
Mrs. Mary-Ellen McGrath, Office of Aeronautics Research, National Aeronautics and Space Administration, Washington, DC 20546, (202) 358-4729.
The meeting will be open to the public up to the seating capacity of the room. The agenda for the meeting is as follows:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide the following information: full name; gender; date/place of birth; citizenship; visa/green card information (number, type, expiration date); employer/affiliation information (name of institution, address, county, phone); and title/position of attendee. To expedite admittance, attendees can provide identifying information in advance by contacting Mary-Ellen McGrath via e-mail at
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Solar System Exploration Strategic Roadmap Committee.
Monday, March 21, 2005, 8 a.m. to 5 p.m., Tuesday, March 22, 2005, 8 a.m. to 5 p.m., Mountain Standard Time.
Hilton Tucson El Conquistador, 10000 North Oracle Road, Tucson, AZ 85737.
Dr. Carl Pilcher 202-358-0291.
The meeting will be open to the public up to the seating capacity of the meeting room. Attendees will be requested to sign a register.
The agenda for the meeting is as follows:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that two meetings of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC, 20506.as follows:
These meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of April 30, 2003, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
Further information with reference to this meeting can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506, or call 202/682-5691.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following NSF-NASA Astronomy and Astrophysics Advisory Committee (#13883) meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from 10 CFR Part 50, Appendix J for Facility Operating Licenses Nos. DPR-71 and DPR-62 issued to the Carolina Power & Light Company (the licensee, also doing business as Progress Energy Carolinas, Inc.) for operation of the Brunswick Steam Electric Plant, Unit Nos. 1 and 2 located in Brunswick County, North Carolina.
The proposed action would exempt the licensee from requirements to include main steam isolation valve (MSIV) leakage in the overall integrated leakage rate test measurement required by Section III.A of Appendix J, Option B.
The proposed action is in accordance with the licensee's application dated October 6, 2004, for exemption from certain requirements of Title 10 of the Code of Federal Regulations (10 CFR), Part 50, Appendix J.
Section 50.54(o) of 10 CFR Part 50 requires that primary reactor containments for water-cooled power reactors be subject to the requirements of Appendix J to 10 CFR Part 50. Appendix J specifies the leakage test requirements, schedules, and acceptance criteria for tests of the leaktight integrity of the primary reactor containment and systems and components that penetrate the containment. Option B, Section III.A requires that the overall integrated leak rate must not exceed the allowable leakage (La) with margin, as specified in the Technical Specifications (TS). The overall integrated leak rate, as specified in the 10 CFR Part 50, Appendix J definitions, includes the contribution from MSIV leakage. By letter dated October 6, 2004, the licensee has requested an exemption from Option B, Section III.A requirements to permit exclusion of MSIV leakage from the overall integrated leak rate test measurement.
The above-cited requirement of Appendix J requires that MSIV leakage measurements be grouped with the leakage measurements of other containment penetrations when containment leakage tests are performed. These requirements are inconsistent with the design of the Brunswick facilities and the analytical models used to calculate the radiological consequences of design-basis accidents. At Brunswick and similar facilities, the leakage from primary containment penetrations under accident conditions is collected and treated by the secondary containment system or would bypass the secondary containment. However, the leakage from MSIVs is collected and treated via an Alternative Leakage Treatment (ALT) path having different mitigation characteristics. In performing accident analyses, it is appropriate to group various leakage effluents according to the treatment they receive before being released to the environment, i.e., bypass leakage is grouped, leakage into secondary containment is grouped, and ALT leakage is grouped, with specific limits for each group defined in the TS. The proposed exemption would permit ALT path leakage to be independently grouped with its unique leakage limits.
The proposed action will not significantly increase the probability or consequences of accidents. The NRC staff has completed its evaluation of the
The proposed action does not affect non-radiological plant effluents or historical sites and has no other environmental impact. Therefore, there are no significant non-radiological impacts associated with the proposed exemption.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
This action does not involve the use of any resources not previously considered in the Final Environmental Statement dated January 1974 for the Brunswick Steam Electric Plant, Unit Nos. 1 and 2.
In accordance with its stated policy, on March 1, 2005, the NRC staff consulted with the North Carolina State official, Ms. Wendy Tingle of the North Carolina Department of Environmental and Natural Resources, Division of Radiation Protection, regarding the environmental impact of the proposed action. Ms. Tingle had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated October 6, 2004. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of issuance.
The Nuclear Regulatory Commission (NRC) has issued Bulletin (BL) 2005-01 to all holders of operating licenses for nuclear power reactors, decommissioning nuclear power reactor sites storing spent fuel in a pool, and wet spent fuel storage sites. This bulletin contains sensitive information relating to material control and accounting (MC&A) programs and is, therefore, being withheld from public disclosure in accordance with 10 CFR 2.390. The bulletin is being provided to only those licensees needing to respond to it.
The bulletin was issued on February 11, 2005.
Not applicable.
Martha Williams, at 301-415-7878, Glenn Tuttle, at 301-415-7644, or Dori Votolato, at 301-415-7633.
For the Nuclear Regulatory Commission.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Railroad Retirement Board (RRB) has submitted the following proposal(s) for the collection of information to the Office of Management and Budget for review and approval.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611-2092 or
A closed meeting will be held on Wednesday, March 9, 2005, at 4 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), (9)(B), and (10) and 17 CFR 200.402(a)(5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the closed meeting.
Commissioner Atkins, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the closed meeting scheduled for Wednesday, March 9, 2005, will be:
Institution and settlement of injunctive actions; and
Institution and settlement of administrative proceedings of an enforcement nature.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of CMKM Diamonds, Inc. (“CMKM Diamonds”) (Pink Sheets symbol “CMKX”), a Nevada corporation also known as Casavant Mining Kimberlite International, Inc. Questions have been raised about the adequacy of publicly available information concerning, among other things, CMKM Diamonds' assets and liabilities, mining and other business activities, share structure and stock issuances, and corporate management. Since the fiscal year ending December 31, 2002, CMKM Diamonds has been delinquent in its periodic filing obligations under Section 13(a) of the Securities Exchange Act of 1934. The Commission is concerned that CMKM Diamonds may have unjustifiably relied on a Form S-8 to issue unrestricted securities. The Commission is also concerned that CMKM Diamonds and/or certain of its shareholders may have unjustifiably relied on Rule 144(k) of the Securities Act of 1933 (“Securities Act”) in conducting an unlawful distribution of its securities that failed to comply with the resale restrictions of Rules 144 and 145 of the Securities Act.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the above listed company is suspended for the period from 9:30 a.m. E.S.T., March 3, 2005, through 11:59 p.m. E.S.T., on March 16, 2005.
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to clarify members' obligations to report the cancellation of trades previously submitted to the Nasdaq Market Center. Pursuant to Section 19(b)(3)(A)(i) of the Act
The text of the proposed rule change is below. Proposed new language is
With the exception of trades cancelled by Nasdaq staff in accordance with Rule 11890, members shall report to the Nasdaq Market Center the cancellation of any trade previously submitted to the Nasdaq Market Center. The member responsible under Rule 5430(b) for submitting the original trade report shall submit the cancellation report in accordance with the procedures set forth in paragraph (g)(2). For trades executed through a Nasdaq system that automatically reports trades to the
(A) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(B) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(C) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(D) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(E) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(F) For any trade
With the exception of trades cancelled by Nasdaq staff in accordance with Rule 11890, members shall report to the Nasdaq Market Center the cancellation of any trade previously submitted to the Nasdaq Market Center. The member responsible under Rule 5430(b) for submitting the original trade report shall submit the cancellation report in accordance with the procedures set forth in paragraph (g)(2). For trades executed through a Nasdaq system that automatically reports trades to the Nasdaq Market Center, the member that would have been required by Rule 5430(b) to report the trade (but for the trade being reported automatically by the Nasdaq system) shall submit the cancellation report in accordance with the procedures set forth in paragraph (g)(2).
(A) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(B) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(C) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(D) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(E) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(F) For any trade
With the exception of trades cancelled by Nasdaq staff in accordance with Rule 11890, members shall report to the Nasdaq Market Center the cancellation of any trade previously submitted to the Nasdaq Market Center. The member responsible under Rule 5430(b) for submitting the original trade report shall submit the cancellation report in accordance with the procedures set forth in paragraph (g)(2). For trades executed through a Nasdaq system that automatically reports trades to the Nasdaq Market Center, the member that would have been required by Rule 5430(b) to report the trade (but for the trade being reported automatically by the Nasdaq system) shall submit the cancellation report in accordance with the procedures set forth in paragraph (g)(2).
(A) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(B) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(C) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(D) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(E) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(F) For any trade
With the exception of trades cancelled by Nasdaq staff in accordance with Rule 11890, members shall report to the Nasdaq Market Center the cancellation of any trade previously submitted to the Nasdaq Market Center. The member responsible under Rule 6420 for submitting the original trade report shall submit the cancellation report in accordance with the procedures set forth in paragraph (f)(2). For trades executed through a Nasdaq system that automatically reports trades to the Nasdaq Market Center, the member that would have been required by Rule 6420 to report the trade (but for the trade being reported automatically by the Nasdaq system) shall submit the cancellation report in accordance with the procedures set forth in paragraph (f)(2).
(A) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(B) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(C) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(D) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(E) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(F) For any trade
With the exception of trades cancelled by Nasdaq staff in accordance with Rule 11890, members shall report to the Nasdaq Market Center the cancellation of any trade previously submitted to the Nasdaq Market Center. The member responsible under Rule 6620 for submitting the original trade report shall submit the cancellation report in accordance with the procedures set forth in paragraph (f)(2). For trades executed through a Nasdaq system that automatically reports trades to the Nasdaq Market Center, the member that would have been required by Rule 6620 to report the trade (but for the trade being reported automatically by the Nasdaq system) shall submit the cancellation report in accordance with the procedures set forth in paragraph (f)(2).
(A) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(B) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(C) For trades executed between 9:30 a.m. and 4 p.m. Eastern Time and
(D) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(E) For trades executed outside the hours of 9:30 a.m. to 4 p.m. Eastern Time and
(F) For any trade cancelled [for which the decision to cancel occurs] on any date after the date of execution, the member responsible under paragraph (f)(1) shall report the cancellation (i) [if the decision to cancel occurs before 6:30 p.m., then] by 6:30 p.m. on the date of cancellation if the trade is cancelled before 6:30 p.m. [when the decision to cancel occurs], or (ii) [if the decision to cancel occurs at or after 6:30 p.m., then] by 6:30 p.m. on the following business day if the trade is cancelled at or after 6:30 p.m.
On July 22, 2004, the Commission approved a proposed rule change requiring members to report to Nasdaq the cancellation of any trade previously reported to Nasdaq, unless the trade is cancelled by Nasdaq staff.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed,
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-NASD-2005-027. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Proposed new Exchange Rule 401A (“Customer Complaints”) would require members and member organizations (the “Membership” or “Member Firms”) to send acknowledgement of any customer complaint subject to the reporting requirements of Rule 351(d) within 15 business days of receiving such complaint, and to respond to the issues raised in such complaint within a reasonable period of time. The proposed corresponding amendment to Rule 476A (“Imposition of Fines for Minor Violations of Rules”) would allow the Exchange to sanction the Membership's less serious violations of the acknowledgement provisions of proposed new Rule 401A pursuant to the minor fine provisions of Rule 476A. Below is the text of the proposed rule change. Proposed new language is
(Rule 476A (a) through (e) unchanged)
Rule 387 requirements for customer COD/POD transactions
Rule 392 notification requirements
Rule 407 requirements for transactions of employees of the Exchange, members or member organizations
Rule 407A reporting and notification requirements for members
In its filing with the Commission, NYSE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NYSE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Proposed new Rule 401A and the corresponding amendment to NYSE Rule 476A are consistent with the requirements of Section 6(b)(5)
The Exchange believes that the proposal does not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609.
All submissions should refer to File Number SR-NYSE-2004-59. This file number should be included on the
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submission should refer to File Number SR-NYSE-2004-59 and should be submitted on or before March 28, 2005.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given that Telesoft Partners II SBIC, L.P., 1450 Fashion Island Blvd., Suite 610, San Mateo, CA 94404, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and § 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). Telesoft Partners II SBIC, L.P. proposes to provide equity/debt security financing to LogLogic, Inc. The financing is contemplated for working capital and general corporate purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Telesoft Partners II QP, L.P., Telesoft Partners II, L.P. and Telesoft NP Employee Fund, LLC, all Associates of Telesoft Partners II SBIC, L.P., own more than ten percent of LogLogic, Inc.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
The Small Business Administration Region V Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a Public Hearing on Thursday, March 24, 2005 at 8:30 a.m. at the Marion County Public Library at Glendale Mall, 6101 N. Keystone Avenue, Indianapolis, IN 46220, to receive comments and testimony from small business owners, small government entities, and small non-profit organizations concerning regulatory enforcement and compliance actions taken by federal agencies.
Anyone wishing to attend or to make a presentation must contact Francine Protogere in writing or by fax, in order to be put on the agenda. Francine Protogere, District Counsel, SBA Indiana District Office, 429 N. Pennsylvania Street, Suite 100, Indianapolis, IN 46204, phone (317) 226-7272 Ext. 270, fax (317) 226-7259, e-mail:
For more information, see our Web site at
Pursuant to Section 301 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (22 U.S.C. 4831
I have appointed Edward G. Lanpher, a retired U.S. ambassador, as Chair of the Board. He will be assisted by M. Bart Flaherty, Frederick Mecke, Mike Absher, Laurie Tracy and by Executive Secretary to the Board, Bruce Thomas. They bring to their deliberations distinguished backgrounds in government service and/or in the private sector.
The Board will submit its conclusions and recommendations to me within 60 days of its first meeting, unless the Chair determines a need for additional time. Appropriate action will be taken and reports submitted to Congress on any recommendations made by the Board.
Anyone with information relevant to the Board's examination of this incident should contact the Board promptly at (202) 203-7149 or send a fax to the Board at (202) 203-7143.
This notice shall be published in the
Office of the Secretary, Department of Transportation (DOT).
Notice.
Beginning on March 7, 2005, the Federal Aviation Administration (FAA) will be assisting the Office of the Secretary (OST) in verifying that the aircraft accessibility requirements of the Air Carrier Access Act (ACAA) and its implementing regulations, 14 CFR Part 382 (Part 382), are being met by U.S. certificated and commuter air carriers. FAA inspectors, in the normal course of their duties, will be performing on-site inspections of U.S. airline aircraft that are subject to the design requirements of the ACAA and Part 382, which prohibit discrimination against disabled air travelers in air transportation. The FAA will also take steps to verify that these requirements are met when new aircraft enter the U.S. airline fleet.
Blane A. Workie, Office of the General Counsel, 400 7th Street, SW., Room 4116, Washington, DC 20590, (202) 366-9342 (voice), (202) 366-7152 (Fax),
Full compliance with the mandates of Part 382 is a priority of the Department of Transportation (Department or DOT). Part 382 is intended to promote accessibility and prohibit discrimination for air travelers with disabilities. This notice concerns those portions of Part 382 that require that carriers order or modify aircraft to improve accessibility. The requirements regarding aircraft accessibility are covered by 14 CFR 382.21.
The requirements of § 382.21 are tied to the number of seats or aisles on an aircraft. They apply to all aircraft operated under 14 CFR part 121 ordered after the effective date of Part 382 (April 5, 1990) or delivered to an air carrier after April 5, 1992. Part 121 contains the FAA's rules on air carrier certification and the operation of large aircraft by carriers certificated under that Part. Section 382.21 requires carriers to provide:
(1) Movable armrests on at least one half of the aisle seats on aircraft with 30 or more seats (382.21(a)(1));
(2) A priority storage area for a passenger's folding wheelchair on aircraft with 100 or more seats (382.21(a)(2));
(3) An accessible lavatory on aircraft with more than one aisle (382.21(a)(3)); and
(4) A carrier-supplied on-board wheelchair in certain instances (382.21(a)(4) and (b)(2)).
The rule does not require retrofitting of aircraft that were in service on or before the effective date of the rule with the following two exceptions: first, a carrier must, under certain conditions, provide an on-board wheelchair on aircraft with more than 60 seats (
The Department wishes to ascertain the current compliance status of air carriers with respect to these requirements. The Department's Office of the Assistant General Counsel for Aviation Enforcement and Proceedings (Enforcement Office) began several investigations into compliance with section 382.21 in 2002, and most of these investigations have culminated in consent orders assessing civil penalties and requiring that air carriers take action to comply with the requirements of section 382.21. The Enforcement Office continues to investigate air carriers that it believes may be operating aircraft that are non-compliant. However, in addition to the continued enforcement efforts, the Department believes that having FAA inspectors check new aircraft being added to carrier fleets as well as aircraft already in service that are subject to the rule, in connection with their regular air carrier safety monitoring activities, would assist in ensuring that air carriers fulfill their nondiscrimination and accessibility responsibilities towards passengers with disabilities.
It is important to note that the FAA's involvement would be limited to conducting inspections to verify that aircraft meet the ACAA and Part 382 design requirements. Enforcement responsibilities with regard to the ACAA and Part 382 would remain in the Enforcement Office. The results of the FAA inspections of aircraft would be forwarded to the Enforcement Office for follow-up with the airlines involved in instances where it appears that the carrier's aircraft may not be in compliance with the ACAA and Part 382.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the application.
Federal Aviation Administration (FAA), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 6, 2005. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received and of dispositions of prior petitions.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR, dispositions of certain petitions previously received, and corrections. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before March 14, 2005.
You may submit comments (identified by DOT DMS Docket Number FAA-200X-XXXXX) by any of the following methods:
• Web site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to
Tim Adams (202) 267-8033, Sandy Buchanan-Sumter (202) 267-7271, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
This notice announces the bi-annual meeting of the Federal Aviation Administration's Government/Industry Aeronautical Charting Forum (ACF) to discuss informational content and design of aeronautical charts and related products, as well as instrument flight procedures policy and development criteria.
The ACF is separated into two distinct groups. The Instrument Procedures Group will meet May 9 and 10, 2005 from 9 a.m. to 4:30 p.m. The Charting Group will meet May 11 and 12, 2005 from 9 a.m. to 4:30 p.m.
The meeting will be held at the FAA National Aeronautical Charting Office, AVN-500, 1305 East-West highway (SSMC 3, Room 4527), Silver Spring, MD 20910.
For information relating to the Instrument Procedures Group, contact Thomas E. Schneider, Flight Procedures Standards Branch, AFS-420, 650 South MacArthur Blvd., P.O. Box 25082, Oklahoma City, OK 73125; telephone (405) 954-5852; fax: (405) 954-2528. For information relating to the Charting Group, contact Richard V. Powell, Office of System Operations & Safety, ATO-R, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8790, fax: (202) 493-4266.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. II), notice is hereby given of a meeting of the Government/Industry Aeronautical Charting Forum to be held from May 9-12, 2005, from 9 a.m. to 4:30 p.m. at the National Aeronautical Charting Office, AVN-500, 1305 East-West Highway, SSMC 3, Room 4527, Silver Spring, MD 20910.
The Instrument Procedures Group agenda will include briefings and discussions on recommendations regarding pilot procedures for instrument flight, as well as criteria, design, and developmental policy for instrument approach and departure procedures.
The Charting Group agenda will include briefings and discussions regarding recommendations regarding aeronautical charting specifications, flight information products, as well as new aeronautical charting and air traffic control initiatives.
Attendance is open to the interested public, but will be limited to the space available.
The public must make arrangements by April 15, 2005, to present oral statements at the meeting. The public may present written statements and/or new agenda items to the committee by providing a copy to the person listed in the
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
46 CFR part 310 authorizes the Maritime Administrator to grant waivers in cases where there would be undue hardship or impossibility of performance of the provisions of the agreement, due to accident, illness or other justifiable reason. The regulation also allows for deferments in exceptional cases for entry into a maritime-related graduate course of study, or the graduate may seek approval to accept maritime-related shoreside employment after first seeking afloat employment. The Maritime Administration (MARAD) is cognizant of the obligation of graduates as we review waiver and deferral requests. In 2004, MARAD granted 18 employment determination requests for shoreside employment. These employment determinations were granted for maritime-related shoreside employment on the recommendation from the U. S. Merchant Marine Academy, only after the graduates diligently sought afloat employment and were unable to obtain it.
Comments must be submitted on or before April 6, 2005.
Rita Jackson, Maritime Administration, 400 7th Street SW., Washington, DC 20590. Telephone: (202) 366-0284; fax: (202) 366-7403; or e-mail:
Maritime Administration (MARAD).
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention MARAD Desk Officer.
49 CFR 1.66.
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 6, 2005.
Patricia Thomas, Maritime Administration, Office of Sealift Support, 400 7th Street, SW., Washington, DC 20590. Telephone: (202) 366-2646; fax: (202) 493-2180, or e-mail:
49 CFR 1.66.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel TYPHOON.
As authorized by Pub. L. 105-383 and Pub. L. 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket 2005-20377 at
Submit comments on or before April 6, 2005.
Comments should refer to docket number MARAD-2005-20377. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Michael Hokana, U.S. Department of Transportation, Maritime Administration, MAR-830 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone (202) 366-0760.
As described by the applicant the intended service of the vessel TYPHOON is:
By order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 6, 2005.
Tewabe Asebe at the National Highway Traffic Safety Administration (NHTSA), Office of Crashworthiness Standards, (202) 366-2365, 400 Seventh Street, SW., Washington, DC 20590.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
A comment to OMB must be received within 30 days of publication.
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This document describes two collections of information for which NHTSA intends to seek OMB approval.
Comments must be submitted on or before April 6, 2005.
Michael J. Jordan, National Highway Traffic Safety Administration (NVS-216), 400 Seventh Street, SW. (Room 2318), Washington, DC 20590. Mr. Jordan's telephone number is (202) 493-0576.
Consumer complaint information takes the form of a Vehicle Owner's Questionnaire (VOQ), which is a paper, self-addressed mailer that consumers complete. This mailer contains owner information, product information, failed component information, and incident information. It may also take the form of an electronic VOQ containing the same information as identified above, which can be submitted via NHTSA's Internet Web site or by calling the Department of Transportation's Auto Safety Hotline. Or, it may take the form of a consumer letter. All consumer complaint information, in addition to other sources of available information, is reviewed by NHTSA staff to determine whether a safety-related defect trend or catastrophic failure is developing that would warrant the opening of a safety defect investigation.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before April 6, 2005 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, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before April 6, 2005, to be assured of consideration.
Learning about the law or the form—4 min.
Preparing the form—12 min.
Learning about the law or the form—12 min.
Preparing the form—15 min.
Recordkeeping—1 hr., 25 min.
Learning about the law or the form—24 min.
Preparing and sending the form to the IRS—25 min.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 7 committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel (TAP) is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. The TAP will use citizen input to make recommendations to the Internal Revenue Service.
The meeting will be held Thursday, March 24, 2005.
Mary Peterson O'Brien at 1-888-912-1227, or 206-220-6096.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 7 Taxpayer Advocacy Panel will be held Thursday, March 25, 2005 from 12:30 p.m. Pacific Time to 1:30 p.m. Pacific Time via a telephone conference call. The public is invited to make oral comments. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 206-220-6096, or write to Mary Peterson O'Brien, TAP Office, 915 2nd Avenue, MS W-406, Seattle, WA 98174 or you can contact us at
The agenda will include the following: Various IRS issues.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule.
FRA is issuing a performance standard for the development and use of processor-based signal and train control systems. The rule also covers systems which interact with highway-rail grade-crossing warning systems. The rule establishes requirements for notifying FRA prior to installation and for training and recordkeeping. FRA is issuing these standards to promote the safe operation of trains on railroads using processor-based signal and train control equipment.
This rule is effective June 6, 2005. The incorporation by reference of a certain publication listed in the rule is approved by the Director of the Federal Register as of June 6, 2005.
Except for good cause shown, any petition for reconsideration of any part of this rule must be submitted not later than May 6, 2005. Any petition for reconsideration should reference FRA Docket No. FRA-2001-10160 and be submitted in triplicate to the Docket Clerk, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590. Petitions, received by the FRA Docket Clerk will be sent to the DOT Docket Management System (DMS) located on the Plaza level of the Nassif Building at the Department of Transportation. You can review public dockets, including any petitions for reconsideration received there between the hours of 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You can also review any petition for reconsideration on-line at the DMS Web site at
Tom McFarlin, Staff Director, Signal and Train Control Division, Office of Safety, FRA, 1120 Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6203); or Melissa Porter, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone: 202-493-6034).
FRA is issuing a performance standard for processor-based signal and train control systems. FRA began the process of developing a rule in 1997 when its Railroad Safety Advisory Committee (RSAC) was tasked with developing a proposed rule for FRA's consideration. RSAC made consensus recommendations to FRA on a proposed rule; FRA agreed to these recommendations and published them as a notice of proposed rulemaking (NPRM) on August 10, 2001 (66 FR 42352). FRA received quite a few public comments on the NPRM. This notice responds to comments on the NPRM and issues the final rule. The standards grew out of the proposed rule requiring that processor-based signal and train control systems meet or exceed the safety level of the traditional signal systems they replace. The preamble discusses the statutory background, the regulatory background, the RSAC proceedings, the alternatives considered and the rationale for the option selected, the proceedings to date, as well as the comments and conclusions on general issues. Other comments and resolutions are discussed within the corresponding section-by-section analysis.
FRA has broad statutory authority to regulate all areas of railroad safety. 49 U.S.C. 20103(a); 49 CFR 1.49. The Federal Railroad Safety Act of 1970, Public Law 91-458, contained this broad grant of authority and supplemented the older rail safety laws then in existence. The older safety laws had been enacted in a piecemeal approach and addressed specific fields of railroad safety. For instance, the Signal Inspection Act, 49 U.S.C. 26 (recodified at 49 U.S.C. 20502
Pursuant to its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address the safety of railroad track, signal systems, railroad communications, rolling stock, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. In the area of railroad signal and train control systems, FRA has issued regulations, found at 49 CFR part 236 (“part 236”), addressing topics such as the security of signal apparatus housings against unauthorized entry (49 CFR 236.3), location of roadway signals (49 CFR 236.21), and the testing of relays (49 CFR 236.106). Hereafter all references to parts and sections shall be parts and sections located in Title 49 of the Code of Federal Regulations.
FRA continually reviews its regulations and revises them as needed to keep up with emerging technology. FRA's need to review its regulatory
(6) The status of advanced train control systems that are being developed, and the implications of such systems for effective railroad communications; and
(7) The need for minimum Federal standards to ensure that such systems provide for positive train separation and are compatible nationwide.
FRA conducted the inquiry required by RSERA and submitted a comprehensive Report to Congress on July 8, 1994, entitled
Since 1994, the Congress has appropriated and FRA has committed approximately $40 million through the Next Generation High Speed Rail Program and the Research and Development Program to support development, testing and deployment of PTC prototype systems in Illinois, Alaska, and the Eastern railroads' on-board electronic platforms. As called for in the Action Plan, the FRA also launched an effort to structure an appropriate regulatory framework for facilitating implementation of PTC technology and for evaluating future safety needs and opportunities. For such a task, FRA desired input from the developers, prospective purchasers and operators of this new technology. Thus, in September of 1997, the Federal Railroad Administrator asked RSAC to address several issues involving PTC, including the development of performance standards for PTC systems. RSAC's involvement in this rulemaking will be discussed later in the preamble.
Since the issuance of FRA's 1994 PTC Report, Congress has twice requested the Secretary of Transportation to submit additional reports on PTC; first in 1994, and more recently in 2003. In 1994, Congress directed the Secretary to submit a progress report.
The Secretary of Transportation shall submit a report to the Congress on the development, deployment, and demonstration of positive train control systems by December 31, 1995.
The 1999 RSAC Report confirmed the core PTC safety functions described in the 1994 PTC Report (prevent train-to-train collisions; enforce speed restrictions and temporary slow orders; and provide protection for roadway workers and their equipment operating under specific authorities). It also referred to additional safety functions that might be included in some PTC architecture (
The 1999 RSAC Report found that railroad safety benefits of PTC could not support the investments necessary to deploy the system. The report estimated that PTC deployment on the Class 1 railroads would cost about $1.2 billion to equip the lines with a level 1 type PTC system (address core PTC functions only), and about $7.8 billion to equip the lines with a level 4 type PTC system (increased functionality addressing additional safety monitoring systems and enhanced traffic management capabilities). These costs are total discounted life cycle costs, including procurement, installation, and maintenance, over 20 years. The 20 year total discounted benefits from avoided accidents ranged from about $500 million for a level 1 PTC system, to about $850 million for a level 4 PTC system. The Committee was not able to reach conclusions regarding the non-safety benefits of PTC-related technologies.
As part of the FRA appropriations for fiscal year 2003, Congress requested FRA to update cost/benefit numbers contained in the 2000 PTC Report to Congress. The Conference Report on the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7) provided in pertinent part as follows:
H.R. Rep. No. 108-10, 108th Cong. 1st Sess. 1286-7. FRA submitted the requested PTC letter report to Congress on August 18, 2004 and a copy of the report is in the docket of this rulemaking. The report indicates that substantial public benefits would likely flow from the installation of PTC systems on the railroad system, although the total amount of these benefits is subject to debate. The report reaffirmed the conclusions reached in the 1994 and 2000 PTC Reports that the safety benefits of PTC systems are relatively small in comparison to the huge costs of installing the PTC systems.
In light of the cost/benefit numbers, an immediate regulatory mandate for PTC could not be currently justified based upon normal cost/benefit principles relying on direct railroad safety benefits. FRA has, therefore, chosen to issue a final rule that establishes a performance standard for processor-based train control systems, but does not require that they be installed. PTC systems can enhance the
Part 236 was last amended in 1984. At that time, signal and train control functions were performed principally through use of electrical circuits employing relays as the means of effecting system logic. This approach had proven itself capable of supporting a very high level of safety for over half a century. However, electronic controls were emerging on the scene, and several sections of the regulations were amended to take a more technology-neutral approach to the required functions (
Since that time, FRA has worked with railroads and suppliers to apply the principles embodied in the regulations to emerging technology and to identify and remedy initial weaknesses in some of the new products. As a result, thousands of interlocking controllers and other electronic applications are embedded in traditional signal systems. Further technological advances may provide additional opportunities to increase safety levels and achieve economic benefits as well. For instance, implementation of innovative PTC systems may employ new ways of detecting trains, establishing secure routes, and processing information. This presents a far greater challenge to both signal and train control system developers and FRA. This challenge involves retaining a corporate memory of the intricate logic associated with railway signaling, while daring to use whole new approaches to implement that logic—at the same time stretching the technology to address risk reduction opportunities that previously were not available. For FRA, the challenge is to continue to be prepared to make safety-based decisions regarding this new technology, without impairing the development of this field. Providing general standards for the development and implementation of products utilizing this new technology is necessary to facilitate realization of the potential of electronic control systems and for safety and efficiency.
FRA has already used its safety authority to grant waivers and issue orders to support innovation in the field of train control technology. FRA has granted test waivers for the Union Pacific Railroad Company (UP)/Burlington Northern and Santa Fe Railway Company (BNSF) Positive Train Separation (PTS) project in the Pacific Northwest, the National Railroad Passenger Corporation (Amtrak) Incremental Train Control System (ITCS) in the State of Michigan, the CSX Transportation, Inc. (CSXT) Communication-Based Train Management (CBTM) project in South Carolina and Georgia, and the Alaska Railroad PTC project. On September 19, 1996 FRA granted conditional revenue demonstration authority for ITCS. In 1998, FRA issued a final order for the installation of the Advanced Civil Speed Enforcement System (ACSES) on the Northeast Corridor (63 FR 39343, Aug. 21, 1998). See also 64 FR 54410, Oct. 6, 1999 (delaying effective date of such order).
Although FRA expects to continue its support for these current projects, the need for controlling principles in this area has become patently obvious. This rulemaking has provided a forum for identifying and codifying those principles.
In March 1996, FRA established the RSAC, which provides a forum for consensual rulemaking and program development. The Committee includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows:
On September 30, 1997, the RSAC accepted a task (No. 97-6) entitled “Standards for New Train Control Systems.” The purpose of this task was defined as follows: “To facilitate the implementation of software based signal and operating systems by discussing potential revisions to the Rules, Standards and Instructions (Part 236) to address processor-based technology and communication-based operating architectures.” The task called for the formation of a working group to include consideration of the following:
• Disarrangement of microprocessor-based interlockings;
• Performance standards for PTC systems at various levels of functionalities (safety-related capabilities); and
• Procedures for introduction and validation of new systems.
FRA gratefully acknowledges the participation and leadership of representatives of the following organizations who served on the PTC Working Group (hereafter Working Group):
In order to efficiently accomplish the three tasks assigned to it involving PTC issues, the Working Group empowered two task forces to work concurrently: The Data and Implementation Task Force, which handled tasks 97-4 and 97-5, and the Standards Task Force, which handled task 97-6.
The Data and Implementation Task Force finalized a report on the future of PTC systems and presented it, with the approval of RSAC, to the Administrator in September of 1999. Report of the Railroad Safety Advisory Committee to the Federal Railroad Administrator, “Implementation of Positive Train Control Systems” (September 8, 1999).
The Working Group also employed several teams, comprised of representatives from RSAC member organizations, who provided invaluable assistance. An Operating Rules Team was charged with working to ensure that appropriate railroad operating rules are part of any PTC implementation process, and a Human Factors Team was charged with evaluating human factor aspects of PTC systems. Members of these teams serve on both the PTC Standards Task Force and the Data and Implementation Task Force, and additional team members were drawn from the railroad community.
FRA staff and staff from the Volpe National Transportation Systems Center (the Volpe Center) worked with the Working Group and its subgroups. FRA responded to a consensus request from the Standards Task Force by contracting for assistance from the Center for Safety-Critical Systems at the University of Virginia.
The NPRM describes the role the Standards Task Force played in developing its recommendations to the Working Group and RSAC, which were in turn recommended to FRA by RSAC and formed the basis for the proposed rule. The Standards Task Force ceased to meet and exist after publication of the NPRM. References to the Standards Task Force and Working Group are reiterated here to provide a historical perspective regarding development of the RSAC recommendations on which the NPRM was based. These points are discussed to show the origin of certain issues and the course of discussion on these issues at the Task Force and Working Group levels. We believe this helps illuminate the factors FRA weighed in making its regulatory decisions at the NPRM stage, and the logic behind those decisions, most of which are still embodied in this final rule.
As previously noted, RSAC recommended to FRA that it adopt the proposed rule recommended to RSAC by the Working Group. FRA concluded that the recommended proposed rule would satisfy its regulatory goals and issued an NPRM that tracked the RSAC recommendation on all major issues. Subsequent to the publication of the NPRM and the close of the comment period, informative discussions were had at the RSAC Working Group meetings regarding issues and concerns raised by written comments. These discussions contributed greatly to FRA's knowledge and understanding of the relevant subject matter, but, as discussed below, RSAC was ultimately unable to reach consensus on recommendations regarding the final rule.
In this final rule, FRA has carried forward the basic principles and structure and in many cases the language of the proposed rule with few or no changes, as initially recommended by the RSAC at the NPRM stage. The text of the final rule is substantially different from the NPRM in only a few ways. First, FRA is adding a provision delineating the responsibilities of railroads and suppliers regarding software hazards; second, FRA is providing alternatives for the abbreviated risk assessment; third, FRA is providing criteria for adjustment to the base case where changes are planned in the subject operation's speed and density; fourth, FRA is adding a provision as notice that entities may be subject to criminal penalties in accordance with 49 U.S.C. 21311; and last, FRA is adding an appendix with a schedule of civil penalties. In addition, minor edits for improved clarity and consistency have been added. Each of these substantive changes will be addressed in the section-by-section analysis of the rule text to which it applies. However, given the failure of RSAC to reach consensus at the final rule stage, FRA has determined the contents of the final rule, without the benefit of a formal RSAC recommendation, based on the agency's best judgment (informed, in many cases, by the excellent discussion of the issues within the Working Group).
During early discussions in the advisory process, FRA noted that the existing “Rules, Standards and Instructions” (part 236) take a performance-oriented approach at the functional level, although—by virtue of the historical context in which they were initially prepared—they most often reference older technology. During the last decade and a half, this performance-oriented approach to specified functions has permitted the growth of electronic systems within signal and train control
Carrier representatives found the FRA draft to be unduly constricting, and asked thatthe group pursue higher-level performance standards. Supplier and labor representatives agreed to this approach, and FRA endeavored to support the Standards Task Force in pursuing it.
The group heard from representatives of the Research and Special Programs Administration, Federal Highway Administration's Office of Motor Carrier Safety (now Federal Motor Carrier Safety Administration), and APTA. FRA distributed a guidance document entitled “Performance Standards: A Practical Guide to the Use of Performance Standards as a Regulatory Alternative,” (Project on Alternative Regulatory Approaches, September 1981), a copy of which has been placed in the docket of this rulemaking.
In brief overview, the term “performance standard” has been variously applied to describe many different forms of regulatory approaches that avoid design specifications and other prescriptive requirements, such as mandates that actions be taken in a particular sequence, or in a particular manner, by the regulated entity. At the most permissive extreme, a performance standard for a railroad operating system might specify an “acceptable” level of safety performance (
The least permissive performance standards include such approaches as requiring that a metal skin on the front of a locomotive have penetration resistance equivalent to that of a given thickness of a specified steel. In this example, the choice of material is left to the designer, but the options are not extensive. See,
In the middle range of permissiveness, a performance standard might address acceptable performance parameters for a particular, mandated device, in lieu of a fixed physical description. For instance, FRA requirements for railroad tank cars carrying flammable compressed gas require the application of high temperature thermal protection that can be accomplished using a variety of materials, together with pressure relief valve capacity requirements adequate to permit safe evacuation and burn-off of the car's contents prior to catastrophic failure of the vessel in a fire environment (part 179, Appendix B (qualification test procedure)). This combination of regulatory requirements has been highly effective in preventing loss of life from violent detonation of tank cars involved in derailments (although compliance issues have been presented by disintegration of insulation blankets that could not be readily detected under the outer jacket of a car).
Some of the safety statutes administered by FRA contain performance-based criteria. For instance, the Signal Inspection Act, as codified at 49 U.S.C. 20502(b), states:
A railroad carrier may allow a signal system to be used on its railroad line only when the system, including its controlling and operating appurtenances * * * may be operated safely without unnecessary risk of personal injury.
The NPRM identified a variety of considerations relevant to whether, and in what form, performance standards should be employed in this and other settings. After review of the public comments on the NPRM, FRA is satisfied that, as a general matter, the performance standard contained in the final rule should be suitable for this context. That is—
• The standard is stated as a practical goal;
• It will be enforceable;
• It will be usable by small entities;
• It can be shown to yield safety that is equivalent to that required under the existing Rules, Standards and Instructions (RS&I) issued by FRA's predecessor the Interstate Commerce Commission (ICC) and carried forward by FRA in part 236;
• Its cost is reasonable;
• It provides means of determining compliance before safety is endangered; and
• As adapted in this final rule, analytical techniques needed to verify compliance are available.
This last point bears further mention. FRA expressed concern in the NPRM that a risk assessment technique, the Axiomatic Safety-Critical Assurance Process(ASACP), intended to provide an important toolset to establish compliance with the performance standard was still under development. Although that continued to be the case as FRA was preparing this final rule and submitting it for review and clearance, FRA has made appropriate changes to this final rule emphasizing FRA's conclusion that more than one type of risk assessment is acceptable.
FRA had also identified several desirable criteria with respect to promulgating a performance standard specifically for processor-based signal and train control technologies: Simplicity, relevancy, reliability, cost, and objectivity.
This final rule presents the highest level performance requirements ever attempted by FRA. In the NPRM, FRA discussed at length both the reasons to pursue such a course and concerns perceived by the agency regarding its wisdom.
Since issuance of the NPRM, FRA has continued its inquiries into the advantages and limitations of high-level performance standards and the current utility of available risk assessment techniques to determine compliance with such standards. See,
FRA remains concerned that the performance-based approach of this final rule may not ensure progressive improvements in safety. Risk management practitioners typically set goals for incremental improvements in safety in connection with use of performance standards. By contrast, this final rule makes current risk levels the floor for future performance. However, if reductions in risk levels do not occur as part of the natural progression from application of the rule's performance based standards, the improvement in risk levels can be achieved by regulatory mandate. FRA refers in the final rule to the prerogative of the agency to order improvements in safety where they are supported by appropriate analysis.
In the NPRM, FRA also expressed doubt regarding whether the relevant technical, scientific, and railroad signaling communities are fully prepared to support implementation of the proposed rule. Although commenters did not appear to question the fact that the field of safety-critical systems is relatively new and undergoing a process of maturation, they did question some of FRA's assertions. For instance, a major signal supplier noted that suppliers do provide quantitative information concerning life-cycle safety performance in the transit market. The same supplier stated that the concept of product validation is much better settled than suggested by FRA in the NPRM and questioned FRA's suggestion that quantifying risk with respect to electronic systems was somehow more difficult than with electro-mechanical systems. Notably, however, the supplier was addressing this topic from the context of design and production of systems utilizing traditional safety concepts. The same commenter noted that much more challenging issues associated with less conventional systems (including those relying upon complex commercial off-the-shelf hardware or software for which source code is not available to the designer and where changes may be introduced without notice).
Commenters generally did not question the difficulty associated with assigning values to human factor risk, and FRA's consideration of the issues as informed by intervening discussions of the Working Group (including presentation and discussion of various risk assessment topics) has done nothing to call into question FRA's original concerns regarding the complexity of safety proofs at the system level, particularly where human factors or non-conventional electronic systems are involved.
Neither did commenters effectively reassure FRA regarding the danger that risk assessment could become an “after the fact” justification for a system already constructed. This concern could be exacerbated by the difficulty of conducting risk assessments in parallel with product development against tight time deadlines. Under such circumstances, the tendency is to assign each subsystem of the electronic system a “risk budget,” after which the temptation to stay within budget could have the tendency to skew estimates. FRA has removed a sentence from the appendix on risk assessment that could be read to endorse this approach; but there is, of course, no reasonable way to prevent it from occurring. Rather, FRA will need to be alert to this procedure; and, where it is used, it may be appropriate to require a third party assessment of the verification and validation process that yielded the compliant estimates.
As reported in the NPRM, recognizing the need to advance the state of the art with respect to analysis of risk specifically associated with various methods of operations and train control technologies, the Standards Task Force established a team to support development of a ASCAP. At the request of the Standards Task Force, FRA engaged the University of Virginia (UVA) to develop the ASCAP model as a risk assessment “toolkit” for use in implementing the PTC rule then under development. The initial challenge for the ASCAP team and contractor was to describe the level of risk associated with the current method of operation on a CSXT line, which is operated without a signal system using direct traffic control system rules (the “base case”). The first comparison case was to be the operations on the same line should a traffic control system be installed. The second comparison case was to be implementation of the proposed Communications Based Train Management (CBTM) system, an innovative technology that addresses the PTC core functions.
As the effort progressed, the traffic control case was eliminated and the effort focused on CBTM. This “dry run” for ASCAP resulted in development of important elements of the technique, including a relatively sophisticated train management algorithm. The CBTM exercise was then suspended due to the need for the University to focus on the safety case for the Illinois DOT Project under contract to System Designer and Integrator for the North American Joint Positive Train Control Program (NAJPTC). When UVA last briefed the RSAC Working Group on this effort in March of 2003, it was clear that the method had been greatly enriched; however, neither the adjusted base case nor the PTC case had yet been finalized. Due to the difficulty of obtaining useful human factors data, that element of the analysis appeared to be the portion of the work still subject to review and potential redirection.
FRA reiterates that the ASCAP approach appears to have significant value for distinguishing risk between the previous condition and proposed systems. However, in developing this final rule, FRA has necessarily taken notice of the fact that constructing the method has proved much more difficult than initially predicted; and nothing approaching validation of the method has yet been undertaken. As a result, the application of recognized alternative risk assessment methods used in other industries is anticipated. These traditional methods will be accepted on a case-by-case basis, after technical review by the Associate Administrator for Safety.
FRA adopts the performance standard contained in the NPRM, which is basically that the new condition be at least as safe as the previous condition. In the preamble to the proposed rule, FRA acknowledged that this is a static level of safety.
Following issuance of the NPRM, the agency focused further on the problem of how to characterize the base case. FRA noted that, in cases where no adjustment of the previous condition was necessary, the rule might actually result in uneven outcomes depending upon the level of safety on the particular railroad and particular territory. Very often the level of safety is affected significantly by intangibles such as specific provisions of the operating rules, training, degree of supervisory oversight, and degree of professionalism of the work force. A railroad with a good safety record could, in effect, be constrained in terms of future options by its own good performance. Such a railroad would likely have a commitment to continuous improvement, and FRA did not want to create the opportunity for safety to decline. On the other side of the ledger, it is a positive thing that safety would be improved through investments in signals or train control in an area where risk had been relatively higher; however, FRA did not want to “set the bar too high” lest needed improvements be discouraged.
FRA embraces this concept of progressive improvement and realizes that actual safety outcomes do differ, despite every attempt to maintain minimum standards. FRA notes that, in cases where adjustment of the base case is required, reliance on average numbers for similar territory may be required, which may have the effect of leveling the playing field over time.
In the NPRM, FRA described a series of options for demonstrating compliance with the performance standard and explained that the option selected could be best described as a Bayesian belief network. A Bayesian Network is a special type of mathematical construct called an “ acyclic directed graph” that represents relationships between logical propositions consisting of a set of assumptions called variables. A simple example of an “acyclic directed graph” is the elimination tree used in many sporting events. Each variable in the logical proposition is independent of other variables that it does not share a common parent with. The joint probability over all variables, which is the probability of the events represented by the graph, occurring is represented in terms of local probabilities associated with each of the individual variables. Its principal limitation is that it may not appear totally objective. It asks that the railroad demonstrate “to a high degree of confidence,” that the proposed product would result in no loss of safety. The railroad would be required to make this finding initially. The NPRM attempted to make it clear that, in any case where approval was required, FRA would determine the sufficiency of the safety case. However, the manner in which that would be done was not made clear, since the definition of “high degree of confidence” embodied a “reasonable decision-maker” standard that would be employed to determine compliance, and the railroad had a duty (carried forward in this final rule) to make an initial determination that the safety case was sufficient.
Since issuance of the NPRM, which pointed out the technical challenges associated with issues underlying administration of a performance standard, FRA has noted slow (albeit demonstrable) progress toward resolution of those issues. Accordingly, FRA is concerned that, given the subjectivity inherent in the “reasonable decision maker” finding (which would increase in proportion to the weight of the safety case derived from assumptions and judgments, as opposed to quantified empirical evidence), and given the range of decisions “reasonable decision-makers” might make, the proposed structure of the NPRM could prove problematic. In particular, FRA wishes to achieve consistency in outcomes for comparable Product Safety Plans (PSPs), promoting fairness for all parties and predictability in terms of what will be acceptable.
FRA notes that most PSPs will be handled in accordance with the informational filing procedures, and in that context judgments by railroads will be accepted at face value if the necessary analysis has been completed and incorporated into the PSP. However, where FRA is faced with the need to make a decision whether to approve a PSP that is taken for review—given the degree of uncertainty associated with much of the underlying analysis associated with a complex processor-based system—it is important that FRA's judgment be applied. Other provisions of the proposed rule appear to anticipate that this will be done.
Accordingly, in this final rule FRA makes clear that, in any case where approval is required, FRA will make the decision
The primary goal of the risk assessment required by this rule is to give an objective measure of the levels of safety risk involved for comparison purposes. As such, FRA believes the focus of the risk assessment ought to be the determination of relative risk levels, rather than absolute risk levels. Thus, like the proposed rule, the final rule attempts to emphasize the determination of relative risk.
The Standards Task Force realized that risk assessments may be performed using a variety of methods, so its recommendation to the Working Group and the Working Group's recommendation to RSAC, in connection with the NPRM, proposed the creation of certain guidelines to be followed when conducting risk assessments. FRA feels that these guidelines, captured in § 236.909(e) and Appendix B, adequately state the objectives and major considerations of any risk assessment it would expect to see submitted per subpart H. FRA also feels that these guidelines allow sufficient flexibility in the conduct of risk assessments, yet provide sufficient uniformity by helping to ensure final results are presented in familiar units of measurement.
One of the major characteristics of a risk assessment is whether it is performed using qualitative methods or quantitative methods. Initially, the Standards Task Force considered proposing that only quantitative risk assessment methods be used to facilitate relative risk comparison. However, suppliers noted that certain risks, such as software coding errors, cannot be fairly or easily quantified, and that the industry practice is to assess such risks qualitatively. As suggested by RSAC at
Regardless of the risk assessment method used, FRA prefers the same method to be used for both previous condition (base case) calculations and calculations of risk associated with the proposed product. FRA prefers similar if not identical methods to be used so that meaningful comparisons can be made. However, the final rule does not mandate that identical methods be used in every case. FRA is aware that some types of risk are more amenable to measurement by using certain methods rather than others because of the type and amount of data available. For example, in almost all situations where advanced train control technology will be economically viable, safety risk data and accident histories will often be more abundant for the previous condition than for operation with the proposed product. The latter calculation will normally be based on supplier data about the product and modeling of how it is intended to be used on the railroad. Because FRA is interested in ensuring that each relative risk determination is accurate, the final rule does not outright mandate that the same assessment method be used. If a railroad does elect to use two different risk assessment methods, FRA will consider this as a factor for PSP approval (see § 236.913(g)). Also, in such cases, when the margin of uncertainty has been inadequately described, FRA will be more likely to require an independent third party assessment (see § 236.913(h)).
On August 10, 2001, FRA published the NPRM concerning the establishment of performance standards for development and use of Processor-Based Signal and Train Control systems (66 FR 42352). As noted above, the NPRM was based on the extensive work of the Standards Task Force and additional input from the entire PTC Working Group. The recommendations of the Working Group, which included those of the Task Force, were recommended by the full RSAC to FRA. Much of the information presented here was published in the NPRM. Since most readers will not have the benefit of consulting both the NPRM and the final rule together, FRA feels that republication of pertinent background and explanatory material in one document is appropriate.
The publication of the NPRM engendered much response. FRA extended the deadline for written comments in response to specific requests for additional time, and to ensure that all commenters had an opportunity to fully develop their observations (66 FR 51362 ). FRA received a total of 27 comments to the NPRM which can be found in the public docket of the rulemaking. FRA did not receive a request for a hearing and did not hold a hearing.
The comments ranged from observations regarding the historical accuracy of the origin of the practices now codified at part 236 and observations concerning the RSAC process to technical commentary regarding the risk assessment methodology proposed in the rule. The Working Group met December 4-6 of 2001 in San Antonio, Texas to consider comments that had been submitted as of that date. Additional comments were received after the initial Working Group meeting and have also been addressed in this notice. Although the later comments were received long after the deadline for comment submission, FRA has attempted to address those comments, as well.
FRA found the discussions at the December 2001 meeting useful and extremely informative. Many of the commenters were present at the meeting and contributed to the discussion, of comments. Concerns raised by public comments were ultimately resolved by FRA, yet the resolutions were informed by insights obtained in the Working Group discussions. (Minutes of these discussions are in the docket of this rule.) The most challenging issues presented by commenters required additional research and analysis by FRA staff and contractors to the agency.
As noted above, the discussions at San Antonio left open the question of when and how the base case should be adjusted. This issue was pursued by a Working Group team and addressed at the Working Group meeting of July 2003. No consensus on the subject was reached at the 2003 Working Group meeting.
At the July 2003 Working Group meeting, the Working Group did achieve consensus on several recommendations for resolution of other comments on the proposed rule and reported those recommendations to the full RSAC. During August of 2003, the RSAC reviewed the written report of the Working Group and voted by mail ballot. Those recommendations were circulated to the full RSAC for mail ballot, and responses were requested by August 14, 2003. A majority of RSAC members either voted to return the recommendations to the Working Group for reconsideration or non-concurred in the recommendations. Under RSAC procedures, the effect of this vote is to conclude RSAC action on the topic without an RSAC recommendation being to FRA. (Under RSAC procedures, any vote to return consensus recommendations to the working group must be unanimous, or the vote is scored as “non-concur.”) In any event, FRA's schedule for completion of this rulemaking could not accommodate further months of deliberation on recommendations.
FRA continued to refine the principles of this final rule in light of emerging experience with processor-based systems and risk assessment techniques until the time this final rule was submitted for review and clearance within the Executive Branch in September 2003. FRA has benefitted from the active discussion of the issues in this proceeding, including written comments and deliberations of the RSAC. Although the final resolution of the issues reflects insights gained in discussions of the Working Group and in the NPRM, FRA's final disposition of these issues is the responsibility of the agency and was based on its independent judgment.
The agency is addressing general comments in this introductory portion of the preamble to the rule. However, the majority of the comments are addressed in the section-by-section analysis of the rule text to which they apply.
One commenter wanted to clarify the history of the standards codified in part 236. This comment correctly identifies FRA's predecessor agency, the Interstate Commerce Commission (ICC), as having previously issued the same rules and noted that these regulations were based on the internal rules and practices of various railroads prior to World War II.
Most commenters favorably regarded the RSAC process. One comment suggested continuing the work of the RSAC by developing sample Railroad Safety Program Plans (RSPPs) and PSPs. FRA has decided to continue the work of the Working Group by involving the members in monitoring the Illinois Project and serving as a sounding board for implementation of this rule and for other PTC efforts. Although the work of the group will continue, for reasons discussed later, FRA has determined that the agency will not be involved with the creation of sample documents. A reviewed RSPP draft for the Illinois Project is already available for consideration, and RSPPs are intended to be general documents that may take a similar form on most railroads. This final rule provides a detailed outline of required PSP elements, and the wide variety of products within the scope of the rule will require a range of adaptations in the format and content of PSPs. Other comments probed the membership of the PTC Working Group and inquired about the records kept for meetings and voting. Working Group minutes after publication of the NPRM are available in the public docket. Detailed voting records indicating the way in which various parties voted are not available, since a consensus process was utilized. The Working Group and task forces operated by unanimous consensus, whereby all participants supported the recommendations of the group. This process frequently entailed the presentation of issues and vigorous debate among the four stake holder groups. In many instances, stakeholders advocated opposing views, but were persuaded to either compromise or support the opposite view to attain consensus. The minutes reflect the nature and character of the debate demonstrating various options considered and key points impacting the consensus, when consensus was achieved by the group. The consensus product was then presented to the full RSAC which had the option of accepting or rejecting the Working Group's recommendations by a majority vote. The Working Group reached consensus on the recommendations comprising the NPRM, but could not reach consensus on recommendations for the final rule. Although ballots from the full RSAC are available to the public, these typically only show support or non-concurrence for the final product, not positions on the individual issues that ultimately comprise the final rule. FRA has not kept and therefore has no avenue for providing the voting records on each issue. However, as previously noted, the text of the final rule differs in only a few major respects from the NPRM, which was based on the consensus recommendation of RSAC. In addition, FRA has attempted to note throughout the preamble issues where there were strong discussions and vigorous debate at the working group level.
FRA has decided to pursue a performance-based standard. FRA did not receive strong comments in support of or against its decision to use a performance-based approach. Comments seem to imply a need for a performance-based approach with some prescriptive elements, in lieu of a pure performance-based approach.
Among the comments on the risk assessment methodology was a filing from a noted signal expert who faulted the NPRM for, among other things, failing to recognize the capabilities of existing signal technology. The point was that it is incorrect to compare new technology with the rules for older technology (as in the proposed rule's construct for the “previous condition”), to the extent the rules do not fully mirror that technology's inherent advantages. Rather, the commenter would have FRA recognize the actual capabilities of existing technology built to exceed existing minimum standards in terms of its actual functions. Any other course, it was implied, could lead to a reduction in safety. The commenter cited the example that cab signal systems respond to changes in track occupancy and route conditions almost immediately as an integral characteristic of their design, even though there is no explicit requirement that they do so. By contrast, communication-based technology may experience longer delays in response due to processing time and delays along the communications path. (Note: In FRA's experience, the extent of any difference in time for response to changed conditions may vary significantly from system to system, depending upon the overall architecture of the system, system priorities, communication protocols, communication capacity, and other factors.)
Taking the commenter's point, FRA posed to the Working Group the need to recognize “best practices” under traditional signal design principles in constructing any adjusted base case. This resulted in alarm among some members, who viewed the notion as entirely open-ended and as posing the potential that the standard embodied in the rule might become increasingly strict over time. Such a case, they noted, could discourage innovation by holding new systems to an unrealistically high standard based on the existence of little-utilized but theoretically superior technology.
FRA agrees with the commenter that the previous condition should include consideration of the actual functioning of an existing signal technology in place. Indeed, this has never been in dispute with respect to a situation in which no adjustment to the base case is required. Where adjustment to the base case is needed (the contingency most prominent in the commenter's concern), FRA again agrees that the inherent functioning of industry standard technology consistent with subparts A-G of part 236 must be considered in order to avoid the potential for a decline in the actual safety of operations subject to subpart H of part 236.
However, FRA also appreciates the concern that emerged during the December 2001 Working Group discussions that an open-ended standard is not appropriate. Accordingly, FRA wants to make clear that any adjustment should be made using signal technology that is (i) standard practice in the railroad industry (or on the particular railroad, if so desired) as of publication of this final rule and (ii) compliant with subparts A-G of part 236 as amended in this final rule. FRA will accept base case scenarios that utilize this approach, without any attempt to explore what may have been “best practice” from some overall industry point of view. Further, the concept of standard technology is one that will be fixed as of a date certain, so “regulatory creep” will not occur.
During discussions with the Working Group following the NPRM, it was clear that disagreement existed regarding how best to adjust base case scenarios to accomplish the required risk assessment. Although from time to time it appeared to FRA that differing views reflected in Working Group discussions were converging to produce a clear consensus on a recommendation addressing how to proceed, the problem persisted through the December 2001, 2002, and 2003 Working Group deliberations. Despite FRA's efforts to get full consensus on a recommended resolution to the issue of the adjusted base case, which is admittedly quite complex, the Working Group could not reach consensus on a resolution to recommend to the RSAC on the issue. The Working Group tasked the issue to a team with representation from major stakeholders who met, heard the report of a contractor employed by FRA to review and improve data flows for analysis, considered a report on risk analysis that determined the effect of speed, train density and method of operation on safety risk, and apparently reached agreement on language for approval by the full Working Group. See discussion of § 236.903(e). At the final meeting of the Working Group in July 2003, the group failed to reach consensus on the recommendation proposed by the team. FRA acknowledged the need to resolve the issue on its own. Accordingly, as further detailed in the preamble, FRA has included in the final rule language resolving the issue of “triggers” for adjustment of the base case. This language is substantially refined from the general concepts embodied in the NPRM and should provide very objective guidance regarding the circumstances under which the base case must be adjusted.
At the Working Group meeting in December 2001, it also became clear that the issue of train control, as opposed to signal technology, presents a special problem. The regulatory structure for train control is essentially unchanged from issuance of the ICC's RS&I in 1937. The RS&I had its roots in ICC orders beginning in 1922, and since FRA's creation in 1967, the RS&I has been carried forward in part 236.
Realistically, for operations in excess of 79 mph (see § 236.0) FRA applies the current regulations only to existing systems. Existing systems have not been extended to additional territories in part because of the costs involved. Identified safety needs have been addressed by FRA orders. For instance, following the Chase, Maryland, collision of January 4, 1987, FRA was required by law to order installation of speed control (ATC) on all freight and commuter trains operating on the Northeast Corridor (NEC), complementing the cab signal systems already in use. Section 9, Public Law 100-342; 52 FR 44510 (Nov. 19, 1987); 53 FR 1433 (Jan. 9, 1988); 53 FR 39834 (Oct. 12, 1988). As higher speed operations came to the NEC and European signal technology provided the opportunity to achieve full PTC functions, FRA required installation of the ACSES on initial territories, noting the potential for application corridor-wide at an appropriate time. 63 FR 39343 (July 22, 1998).
When Amtrak planned higher speed operations on its Michigan line, FRA supported installation of the Incremental Train Control System (ITCS), providing a limited waiver for system characteristics that differ from traditional signaling technology. ITCS provides positive stop capability as well as speed control and can be utilized to protect work zones. Although a commenter in this proceeding questioned whether ITCS provides the same level of safety as a cab-signal based system, there can be no doubt that it far exceeds the safety provided by an intermittent train stop system. In summary, while existing rules still apply to existing systems, new higher speed operations have been subjected to higher standards.
During Working Group discussions following issuance of the NPRM, FRA considered providing generic guidance for construction of adjusted base cases for PSPs involving planned speeds that exceed 79 mph. FRA further considered participating in consultation with respect to the appropriateness of alternative approaches, based upon the facts in particular cases. FRA has concluded such guidance is necessary and has provided that guidance in the final rule. Of course, FRA cannot relinquish its responsibility ultimately to determine whether the performance standard has been met. In order to provide meaningful flexibility to utilize approaches grounded in systems now in use, optimizing use of public and private resources, FRA is prepared to consider use of base cases employing cab signals and continuous train stop, where that is commercially and operationally realistic and within a reasonable speed range. FRA does not believe that the allowance in existing regulations for intermittent train stop technology would be appropriate for extension to the new performance-based rule. While that technology has an acceptable record under existing conditions of operations, it deviates from the fail-safe requirements applicable to other signal and train control systems and has clear vulnerabilities that have been realized in practice. By the same token, consideration of systems exceeding ACS/ATC is appropriate where train speeds exceed 110 mph, based on determinations FRA has made concerning the NEC, as noted above.
Accordingly, the guidance for adjustment of base cases that is set forth in § 236.909(e) of this final rule also addresses cases involving higher speed operations. In that guidance, FRA emphasizes that high speed rail passenger service should be supported by highly competent train control technology. In view of safety concerns attendant to passenger service and the fact that much of the cost of rail passenger service is met out of public sources, FRA will, where appropriate, examine new high speed passenger rail projects and propose appropriate orders setting a floor for safety for the new systems.
With respect to the base case for the NAJPTC problem, FRA indicated a willingness to make a provisional decision on revenue service for the Illinois PTC system based upon the risk assessment approach described above. Given the configuration of that system and the scope of operations involved, FRA believes that the information under development should be sufficient to permit FRA to estimate whether the PTC system is fully adequate from a safety point of view, particularly as to the fixed block operations planned for revenue service. FRA will make available funding for a required follow-on assessment, utilizing ACS/ATC as the method of operation, so that a more complete and precise record is available to guide deployment of that technology elsewhere on the national rail system. This is particularly important because the project goals include demonstration of (i) “moving” block operations which was not contemplated by previous rules and (ii) provisions for “non-communicating” (unequipped) trains, which was contemplated but not allowed by previous rules.
The earliest train control systems were electro-mechanical systems that were independent of the discrete pneumatic and mechanical control systems used by the locomotive engineer for normal throttle and braking functions. Examples of these train control systems included cab signals and ACS/ATC appliances. These systems included a separate antenna for
Nevertheless, as the price of microprocessors decreased, and their capability increased, the original equipment manufactures (OEMs) of the various components making up the locomotive and the train control systems began individually repackaging the individual components using the enhanced microprocessor capabilities and eliminating parts and system function control points access. Access to control functions became increasingly restricted to the processor interfaces using proprietary software. While this resulted in significant simplification of the previously complex discrete pneumatic and mechanical control train and locomotive control systems into fewer, more compact and reliable devices, it also eliminated many of the parallel independent control paths previously available to train and locomotive control systems. For example, in the case of pneumatic and mechanical brake system components, the introduction of electronic air brake controllers resulted in the elimination of the mechanical valve previously used for penalty brake applications by the train control system. As a result, penalty application of brakes by the once isolated, totally segregated train control systems could now only occur if the air brakes were actuated through the locomotive electronic air brake controller.
The OEMs also began tapping certain inputs or outputs of the proprietary systems of the individual components for locomotive information. Individual gages displaying operating parameters (such as speed, brake pipe pressure, and amperage) to the engineer were replaced by single integrated electronic displays. These new microprocessor controlled locomotives now respond to operator commands, display system status, and simultaneously make numerous automatic adjustments to locomotive systems to ensure efficient operation. These new locomotive electronic controls, while designed with a high degree of attention to safety, have been built to different design standards and requirements than train control systems and have thus far not been demonstrated to fail safely. In individual cases unsafe failures have occurred. In effect, electronic control of locomotive functions has arisen in recent years without the same degree of regulation as train control functions, and in some cases products have been deployed prior to a level of analysis and testing that would be considered acceptable in a train control system. As a result, locomotive engineers have expressed concern regarding the safety characteristics of certain electronic features. Despite the best efforts of OEMs and suppliers, in some cases engineers have been relegated to use of emergency brake valves in the face of blank screens and uncertain availability of normal control functions.
FRA asked for comment on this issue. GE Transportation Systems responded requesting only that train control circuitry be clearly distinguished from locomotive electronics. GM Electro-Motive (EMD) did not respond until December of 2002, long after the official close of the comment period. EMD asked that the preamble discussion on integration of functions be stricken. EMD felt that requiring isolation of train control functions could drive up costs and slow adoption of PTC. EMD noted that many of the components and subsystems required for PTC are already on board today's locomotives (
Locomotive manufacturers can certainly provide secure locomotive and train controls, and it is important that they do so if locomotives are to function safely in their normal service environment. FRA highly encourages the long-term goal of common platform integration.
As noted in the NPRM, this rule is being prepared against a background of rapid and significant change in locomotive design. This change has direct implications for the future of both train control and locomotive control systems on board locomotives. The net result has been a merging of systems designed to different regulatory standards with differing levels of safety analysis at a single point.
This final rule does not preclude the integration of functions if the overall safety case is made with the required high degree of confidence. It should be noted that for new locomotives in passenger service, 49 CFR “ § 238.105 establishes requirements for fail-safe characteristics or safety redundancy for braking and power functions that are electronically controlled. In the near future, FRA expects to explore further the need for safety criteria for critical locomotive control functions in both passenger and freight service.
FRA is amending this section, as proposed in the NPRM, to clarify existing procedures for requesting confidential treatment for documents provided to the FRA in connection with the agency's enforcement activities. The Standards Task Force was concerned that confidential documents would need to be provided to FRA under parts 234 and 236, and that FRA needed to clearly indicate that it would protect such documents. The NPRM proposed to address this issue by amending paragraph (a) of § 209.11 to indicate that the procedures governing requests for confidential treatment apply to documents provided to the FRA in connection with the agency's enforcement of both the railroad safety statutes and the railroad safety implementing regulations.
FRA received several comments on this section. One commenter suggested that no information submitted to the FRA should be treated as confidential. FRA disagrees, and notes that the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Trade Secrets Act (18 U.S.C. 1905) protect confidential information from public disclosure. Another commenter suggested that FRA confirm that information will be accorded confidential treatment. FRA cannot make any flat pronouncements about the confidentiality of information
Section 234.275 contains standards for highway-rail grade crossing warning systems using new or novel technology or providing safety-critical data to any product governed by subpart H of part 236. Currently part 234 provides requirements for the maintenance, inspection, and testing of highway-rail grade crossing warning systems. In September 1994, FRA issued a final rule on part 234 (Grade Crossing Signal System Safety, 59 FR 50,086, Sep. 30, 1994), but the final rule did not address processor-based warning systems which are integrated with signal and train control systems. FRA felt it was necessary for these types of systems to be addressed in subpart H because of the potential for their integration or interaction with processor-based signal and train control systems. With the large number of processor-based warning systems currently installed at the nation's highway-rail grade crossings, however, it would be unrealistic to attempt to bring all of those within the scope of subpart H. The processor-based warning systems currently in use and meeting the maintenance, inspection, and testing requirements of part 234 do an admirable job of warning highway users. The Standards Task Force formed a team of its members (prior to publication of the NPRM) to identify such items as PTC system data to be transmitted to and integrated with highway traffic control/information systems (future capability). See “Implementation of Positive Train Control Systems,” page viii (September 8, 1999). The team's focus captured the potential uses of Intelligent Transportation System (ITS) technology at highway-rail grade crossings. This section identifies which processor-based highway-rail grade crossing warning systems are subject to the requirements of subpart H of part 236.
Paragraph (a) provides that relevant definitions of part 236, subpart H, apply to this section.
Paragraph (b) provides a standard for whether a highway-rail grade crossing warning system must meet the requirements of subpart H. “New or novel technology” is defined in the third sentence of the paragraph. FRA envisions new or novel technology to include such technology as that incorporated in new designs which do not use conventional track circuits. For instance, ITS contemplates intelligent controllers that utilize data provided through advanced signal and train control systems to warn motor vehicle drivers of approaching trains. FRA does not intend for new or novel technology to include any technology used in current systems (as of the effective date of this rule), which is consistent with the approach recommended by the Standards Task Force for the NPRM.
Paragraph (c) contains requirements for equipment subject to this section. These are additional requirements which must be included in the PSP.
Paragraph (d)(1) confirms that this section in no way authorizes deviation from the requirements of the Federal Highway Administration's Manual for Uniform Traffic Control Devices (MUTCD). Current “wayside” warning devices are standardized by the MUTCD. The MUTCD sets forth the basic principles that govern the design and usage of traffic control devices for all streets and highways open to public travel regardless of type of class or the governmental agency having jurisdiction. Part VIII of the MUTCD applies to traffic control systems for highway-rail grade crossings. Traffic control systems for such crossings include all signs, signals, markings and illumination devices along highways approaching and at crossings. Traffic control systems are required to be consistent with the design and application of the standards contained within the MUTCD.
FRA received one comment generally supporting this section. The commenter concurred with the language proposed in the NPRM for this section as necessary to ensure the safety and integrity of the system throughout its life cycle.
As a general matter, this final rule applies to all railroads, with two exceptions. First, railroads which operate only on track that is not part of the general railroad system of transportation are excepted from all requirements of part 236. Second, rapid transit operations in an urban area which are not connected to the general railroad system of transportation are unaffected by the requirements of part 236. FRA changed this language solely to standardize the application of all of the Federal regulations related to railroad safety. For additional information on the extent and exercise of FRA's safety jurisdiction, see 49 CFR part 209 Appendix A as amended on July 10, 2000 (65 FR 42544).
FRA also added a provision noting that a person may be subject to criminal penalties for violating the provisions of 49 U.S.C. 21311. FRA has similar provisions in its other regulations requiring persons or entities to report information to FRA for safety data purposes. FRA's intention here is to emphasize the importance of truthful recordkeeping and reporting, and the possible penalties for failure to do so.
This section requires that all railroads adopt a software management control plan to assure that software used in processor-based signal and train control equipment in service is the version intended by the railroad to be in service at each location. Simply put, a software management control plan is an inventory of software at each equipment location. As a processor-based signal and train control system ages and experiences modifications (i.e., changing operating conditions or upgrades in hardware and software), the software management control plan should be updated accordingly, providing traceability to previous versions of software. One should always be able to determine from the software management control plan precisely what software is installed at each equipment location in the field. This requirement provides an audit trail to determine if the correct software is installed at the correct locations for all processor-based signal and train control systems on a railroad.
FRA is requiring this plan because for a considerable time after the introduction to the railroad industry of processor-based equipment in signaling systems, components of such systems were not handled responsibly. It was
With the proliferation of processor-based equipment and use of PROMS with both erasable and non-erasable memory, it is no longer practical to require the soldering of PROMS on PC boards. A software management plan will track the version of software which should be and is in use at all equipment locations on a signal and train control system. Therefore, a requirement for software management control plans provides adequate assurance that processor-based equipment is programmed with the correct software version.
The inventory should identify, among other things, the software by version number. FRA expects the software management control plan to identify and document for each equipment location the executive or application software name, software version number, software revision number, date of software revision, and a description of the cyclic redundancy check for verifying PROM contents. Prior to the issuance of the NPRM, the Task Force had initially considered a requirement that railroads adopt configuration management plans for existing systems, which would cover both software and hardware dealing with safety-critical aspects of processor-based signal and train control systems. Railroads expressed concern during discussions of the Working Group that such a requirement would be unduly burdensome since there is no current configuration management requirement in place, and that certainly simple one-for-one hardware changes need not be tracked. As a practical matter, FRA envisions a limited amount of hardware tracking as a necessary element of software management, since software can reside in portable hardware elements. FRA invited comment on this issue in the NPRM and received several in favor of requiring a hardware and software management control plan. These comments expressly stated that hardware tracking is a necessary element of software management. As previously noted, the subject of configuration management was contemplated by the Standards Task Force (pre-NPRM), but the group opted to recommend to the Working Group that the tracking for existing systems be limited to a software management plan. RSAC made the sure recommendation to FRA, which FRA embodied in the NPRM. FRA has noted the concerns of commenters, but FRA agrees with the decision of the Standards Task Force, pursuant to the reasoning articulated above about the undue burden such a provision would entail, not to include hardware in the software management control plan.
There is currently no recognized industry standard for software management; however FRA is aware that other computerized systems on railroads such as accounting and communications systems use configuration management control principles. FRA believes that a requirement for software management control plans on signal and train control equipment will enhance the safety of these systems and ultimately provide other benefits to the railroad as well.
Under this section, railroads are responsible for all changes to the software configuration of their products in use, including both changes resulting from maintenance and engineering control changes, which result from manufacturer modifications to the product. In FRA's view, both of these types of changes carry significant safety implications, and should be tracked by the railroad. FRA is aware that most maintenance changes involve replacement of PC boards or software on PROMS, and that changes such as replacement of resistors on PC boards are not normally made by the railroad, but rather the product manufacturer. FRA feels that it would be appropriate for the railroad to track changes no deeper than at the PROM software levels; however, it would be unrealistic and cumbersome to expect the railroad to document changes such as replacement of resistors on PC boards.
The NPRM recognized that the proposed section imposed a strict liability standard on the railroads regardless of culpability, and that railroads may be penalized in situations where they receive inaccurate information from the product manufacturer concerning manufacturer modifications which may pose a safety risk. While railroads should be entitled to rely on the manufacturers' product information, since manufacturers obviously know much more about the specifics of their products, FRA intended to hold the railroads responsible since they are primarily responsible for the safety of their operations. On the other hand, a supplier that provide inaccurate information or provides information in an untimely way would cause the railroad to be in violation of its obligation to implement a plan that contains current and accurate information. Under § 236.0(f), any person that causes a violation of part 236 is liable for a civil penalty. With regard to PSPs, the final rule requires that the railroad disclose contractual relationships with the software supplier to ensure such timely notification of safety critical changes. See § 236.907(c)(3). Product suppliers entering into contractual arrangements for product support described in a PSP must promptly report any safety-relevant failures and previously unidentified hazards to each railroad using the product. See § 236.907(c)(4).
FRA invited comments addressing the issue of whether railroads and suppliers ought to share responsibility for the duty of maintaining proper software configuration, and if so, how such responsibility can be effectively delineated. FRA received comments suggesting that the supplier should be responsible for supplying initial software configuration information with the exception of embedded proprietary software and provide software configuration information for changes impacting safety. Another commenter provided a more detailed scenario for assigning responsibility where the suppliers providing the product directly to the railroad would be responsible for verifying the safety of the executive software and the version control of that software. The software version control would clearly identify safety related changes, required supporting hardware, and the compatible interfaces. The railroad would be responsible for maintaining version control of site specific application software for products or systems, and verify the compatibility of all component interfaces.
FRA clearly intends to hold railroads responsible as they are primarily responsible for the safety of their operations, but recognizes the extreme importance to be accorded the supplier or manufacturer. In fact, FRA acknowledged the importance of the
Paragraph (a) of § 236.18 discusses the application of this requirement to all railroads within 6 months of the date that the final rule is published and also discusses how it applies to railroads not in operation as of the effective date of this rule. FRA intends for this requirement to apply to all systems which would be specifically excluded by § 236.911 in subpart H. For subpart H products, configuration management for each product must be specified in the PSP and the Operations and Maintenance Manual, as required by §§ 236.907(a)(13) and 236.919(b). These specifications must comply with the railroad's RSPP.
Although the issue of allowing time for compliance was not covered by the Standards Task Force, FRA proposed a 24-month time period as sufficient. FRA sought comment on this issue and received comments both in support and against the proposed 24 months. Comments seeking more time concluded that a 24-month period may not be sufficient due to the significant impact on the development processes, documentation requirements, and product development cycle for products already being designed. The Working Group favorably discussed recommending 30 months for implementation of the software management plan following its completion. Of course, the full RSAC did not make consensus recommendations to FRA on how to resolve comments on the NPRM. Nevertheless, FRA is persuaded by the rationale suggesting the need for extension of the implementation period. FRA has decided to change the language from the NPRM to allow a longer implementation period. In essence, the change extends the previously proposed period of 24 months to 36 months, with 6 months allowed to develop and adopt the plan and 30 months allowed to implement it.
Paragraph (c) replaces the language originally proposed as paragraph (b). FRA received a comment stressing the need to revise the language to require a description of the process to ensure proper configuration in lieu of the previous language which required the identification of the actual testing procedures used to confirm proper configuration. The commenter appropriately distinguished the testing procedures which would be tailored to a particular product from the overall process which could be applied to numerous products. FRA agrees with this distinction and has incorporated the suggested change. As revised, the paragraph requires software management control plans, and further requires that the plan describe the process for identifying and confirming proper configuration when any type of change occurs.
FRA is modifying existing § 236.110 to include record keeping requirements for processor-based signal and train control systems under part 236, subpart H, and to make it consistent with current agency policy concerning record keeping. As modified, § 236.110 would incorporate in four paragraphs new language and language from current § 236.110.
Paragraph (a) outlines four primary changes. First, FRA is adding a new section to the list of sections to which § 236.110 applies: § 236.917(a), applies to processor-based equipment covered by subpart H. Currently, there is no established safety record or performance history for these new types of systems.
Second, paragraph (a) allows for electronic record keeping. This policy is consistent with FRA's policy of encouraging electronic record keeping. FRA is requiring that carriers adopting electronic means to record results of tests first obtain FRA's approval through an application process. Requiring FRA approval will establish a process whereby FRA can ensure all the proper information (prescribed in proposed paragraph (a)) is recorded. FRA will also be able to determine where and how the electronic records are available for inspection. FRA notes that if tests are performed by Automated Test Equipment (ATE), the test equipment shall be identified by a unique number, and the test record must reflect that number.
Third, FRA is changing § 236.110 to make clear that records filed with a railroad supervisory officer with jurisdiction are subject to inspection and replication by FRA and FRA certified state inspectors. Railroad supervisory officer is intended to mean an assistant signal supervisor, signal supervisor, or any responsible divisional officer. If a railroad receives approval for electronic record keeping, the railroad shall inform FRA how and where the electronic records will be available for inspection during normal business hours. However, in the case of life cycle records required by proposed § 236.110 (c) (1), the railroad shall inform FRA of the office location(s) where these life cycle records will be kept. If electronic record keeping (in accordance with paragraph (e)) is not used for train control test records, then these records must be kept at the locomotive office nearest the test point location(s).
Fourth, paragraph (a) corrects a misprint in current § 236.110, concerning the list of sections to which it applies. The paragraph lists in proper numerical order the sections to which § 236.110 applies.
Paragraphs (b), (c), and (d) provide requirements for how long such records specified in paragraph (a) are to be maintained. Paragraph (b) simply restates a current requirement of § 236.110 (fourth sentence).
Paragraph (c) provides a requirement specifying the length of time records made in compliance with § 236.917(a) are to be kept. Paragraph (c)(1) requires that all railroads maintain records for results of tests conducted when a processor-based signal or train control system is installed or modified. These records must be retained for the life cycle of the equipment. FRA feels tracking modifications to processor-based equipment is necessary, because such changes, especially those concerning software, are not often readily apparent, yet may lead to hazardous conditions. Whenever processor-based equipment or software is modified or revised, it must be tested to ensure it is still functioning as intended. FRA believes these records will also provide valuable information to the railroad and manufacturer pertaining to the reliability of the equipment.
Paragraph (c)(2) deals with maintenance and repair records. The NPRM proposed requiring the records to be maintained for one year, or until the next record is made. There were two reasons for this requirement. First, a subset of these records (those involving hazardous events) will be tracked in the product's hazard log (see § 236.907(a)(6)). Second, many repairs to signal and train control equipment are not performed by the railroad, but rather by contractors. It would be burdensome for repair records to be tracked by the railroad for the lifetime of the product when different contractors might be performing the actual repair work over the product's
Paragraph (d) simply restates a current requirement of § 236.110 (fifth sentence).
Paragraph (e) allows electronic recordkeeping in lieu of preprinted paper forms.
FRA inserted this definition to aid in standardizing the application provisions of its regulations.
This section describes both the purpose and the scope of subpart H.
FRA received a number of comments suggesting new definitions, as well as comments addressing various definitions included in the NPRM. Among the comments suggesting new definitions was a recommendation that the final rule include a definition for the term “application software.” The commenter, however, did not propose a definition for consideration by the agency. Although the comment was considered, FRA could not recommend a definition for the term that would provide clarity to the concept.
Other commenters requested the term “train control” be defined in the rule. FRA received two suggestions for definitions of train control. One definition stated,
Train control means the primary system that instructs the train operator or other track occupant on speed or authority limits and/or automatically restricts the train or other vehicle to the speed or authority limit.
The other suggested definition stated,
Train control is a part of a system interlinked from wayside to track vehicle that automatically warns and enforces against violation of track speeds and authority limits.
The underlying concern presented by these commenters is to ensure the final rule is not misconstrued to cover systems that are not train control systems. The commenters stress the distinction between systems that can initiate enforcement and actually control the train and systems that merely provide information to those individuals controlling the train. In particular, the commenters do not want train pacing systems, alerters and End of Train Devices (EOTs) considered train control systems for purposes of this rule.
FRA agrees and realizes that historically, there was an understanding among parties in the railroad industry regarding what constitutes a train control system. FRA further recognizes that evolving technology will change the nature of what is traditionally considered train control. FRA has decided that an attempt to craft a clear definition or even a laundry list of what systems or features are considered train control or components of train control systems may actually confuse the issue. Since the technology supporting these systems is continuously evolving any list would undoubtedly be outdated at its inception or shortly thereafter. The purpose and scope provision of this rule found at § 236.901 clearly limits the rules application to “safety critical products.” FRA believes the definition of “safety critical” excludes systems that merely provide information. In lieu of attempting to craft a definition of train control, FRA has clearly articulated that pacing systems, alerters, and EOTs are not train control systems, which appears to address the immediate concern of these comments. Having satisfied the immediate concerns and given the difficulty of crafting a definition, FRA has decided to leave the term “train control” undefined.
“Train control” is, among other things, a statutory term; and FRA is keenly aware that evolving electronic architectures will present a variety of questions with respect to the applicability of subpart H. FRA believes these challenges should be considered on their merits, rather than through adoption in the present proceeding of a definition that is over- or under-inclusive.
In the definition of “safety-critical,” FRA has already said that the reach of this proceeding extends to systems that are overlaid on existing methods of operations without being integrated into those systems. Such systems monitor compliance and intervene as necessary to prevent accidents and casualties, and in the future some existing signal systems may be removed because of the safety net they will provide. Other systems providing safety-relevant information on which crews are expected to rely will also fall within this term.
In particular, FRA wishes to emphasize that systems that deliver mandatory directives in text or graphic format are also train control systems. These systems have been excepted from part 220 (Radio Communications) specifically because it was understood that special attention would need to be given to the safety and security of such systems. In light of the events of September 11, 2001, it is particularly important that oversight be provided for implementation of these systems (which FRA encourages and will seek to facilitate).
In referring to overlay systems and systems for the digital transmission of mandatory directives as train control systems, FRA recognizes the reality that both safety and operational efficiency will almost inevitably be implicated in these new technologies. Communications capability will be relied upon to move trains more efficiently, and more or less subtle changes to the underlying methods of operation will emerge. Employees will come to rely on information provided by the systems (including negative cues garnered from the lack of intervention). FRA does not object to these changes, but it is important that the changes be summed into a PSP for analysis so that pluses and minuses can be accounted for and the overall safety impact of the changes can be evaluated.
In addition to suggestions for new definitions, comments were submitted addressing various definitions proposed in the NPRM. These comments will be discussed with the corresponding explanation of each term.
The term “component” is intended to signify an identifiable part of a larger program or construction. A component usually provides a particular function or group of related functions. By requiring such a definition, FRA does not intend to overburden railroads or suppliers by requiring safety performance data and analysis on the least significant of these identifiable parts. Rather, FRA encourages railroads to take advantage of supplier data, which is normally readily available for off-the-shelf components. FRA assumes that railroads and suppliers will use discretion to appropriately define components at levels not quite as simple as a resistor, but also not quite so complex that they could not be readily replaced. For instance, FRA envisions components defined no more specifically than at the printed circuit board level, or E-PROM level.
FRA has added a definition of the term “employer.” The term employer means a railroad, or a contractor to a railroad, that directly employs or compensates individuals to perform the duties specified in § 236.921(a). This definition is needed as a result of the change in the language of § 236.921 to make clear that railroad contractors, as well as the railroads are responsible for
The term “executive software” is intended to encompass that software which affects the overall structure of a signal or train control system and the nature of the interfaces between its various subsystems and components. Executive software typically remains the same from installation to installation; the design is not changed and it is not recompiled. Executive software only changes when the manufacturer issues a revision or new version/upgrade.
The term “full automatic operation” is defined per recommendation from the Standards Task Force. This definition was crafted with respect to the railroad industry, which involves both freight and passenger operations. Other definitions come from the transit industry and involve such nuances as door control. The definition captures the notion that locomotive engineers/operators may act as both passive monitors and active controllers in an full automatic operating mode.
This rule is not designed to address all of the various safety issues which would accompany full automatic operation. Indeed, FRA would anticipate the need for further rulemaking to address the wide range of issues that would be presented should automatic operation be seriously contemplated. However, insofar as skills maintenance of the operator is concerned, the rule offers standards in § 236.927.
The term “high degree of confidence” was defined in the NPRM to mean “there exists credible safety analysis which is sufficient to persuade a reasonable decision-maker that the likelihood of the proposed condition associated with the new product being less safe than the previous condition is very small (remote).” This proposed definition was addressed by several commenters, who concluded that the term was subjective, but provided no alternative suggestion. One commenter acknowledged there is no standard that would not be subjective and noted that they could live with the inherent subjectivity of the term and concept. FRA, however, found the term's application inappropriate for subsystem and component level estimates. FRA is therefore changing the definition proposed in the NPRM to indicate that the term is to apply only at the highest level of aggregation of processor based components. FRA received one final comment addressing this term, contending the parenthetical at the end of the definition “(remote)” does not enhance or provide clarity to the concept. The word “small” is already used within the definition and needs no further explanation. In addition the word “remote” may actually add confusion instead of clarity as it has a specific meaning in the risk assessment area. FRA is changing the proposed definition by striking the parenthetical. Further, for reasons detailed above under the discussion of the performance standard, FRA is removing the language concerning the “reasonable decision-maker.” The final definition reads as follows:
The term “human factors” refers to the limitations in human performance, abilities, and characteristics that designers should consider when designing subpart H products. FRA believes that designers can improve the safety of products by considering human factors as early as possible in the design process. Design that does not account for human factors, however, can degrade safety.
The term “human-machine interface” refers to the way an operator interacts with the product. FRA feels designers who incorporate human factors design principles in a human-machine interface can increase system safety and performance.
The term “Mean Time to Hazardous Event” (MTTHE) is used to capture the parameter widely accepted in the safety/reliability engineering discipline as a scientifically based prediction of the measure of time likely to pass before the occurrence of a hazardous event. Railroads have indicated objection to the use of the term “average” or “expected” in the definition of MTTHE. FRA invited comment on this specific issue. FRA received comments generally in favor of the use of the words “average” or “expected” in the definition. Other comments addressed the term MTTHE generally. One commenter considered the concept of a mean time to a potential hazard troublesome, arguing that if a potential hazard is recognized it should be fixed. This concern and others are not likely to be addressed by a change in the definition and will be discussed with comments on the risk assessment. Another commenter objected to the use of MTTHE as confusing when there is already a commonly used term “Mean Time Between Hazardous Events” (MTBHE) that captures the concept. The commenter encouraged consideration of the IEEE definition of MTBHE to prevent confusion and encourage consistency, yet seemed comfortable with the other term and expressed no objection to the use of the words “average” or “expected” as part of the MTTHE definition. FRA believes the difference between the terms MTTHE and MTBHE is minor, and renders similar if not identical numerical values. The latter implies there has been a previous hazardous event and provides an exponential number representing some unit of time (
The term “new or next-generation train control system” is intended to capture the notion of a train control system utilizing a relatively new technology or new generation of technology, not currently in use in revenue service. Under this definition, a significant change in the way signal and train control systems work, such as that brought about by Locomotive Speed Limiter (LSL), could trigger classification as a new or next-generation train control system. Other factors, such as the relative maturity of the product brought to market, may be relevant to this determination.
The term “predefined change” is intended to signify any change likely to have an effect on the risk assessment for the product. FRA imagines that predefined changes will include: Additions, removals, or other changes in hardware, software, or firmware to safety-critical products, application software, or physical configuration description data, under circumstances capable of being anticipated when the initial PSP is developed. FRA wants to clarify that these changes would include not only changes made directly to the product, but changes in the product's use.
FRA urges parties developing PSPs to consider all likely configurations for the product, and include such considerations in the risk assessment. This will reduce the likelihood of being
The term “preliminary safety analysis” is intended to signify the process used to develop a comprehensive listing of all safety-enhancing or safety-preserving functions which safety-critical products will perform. This listing should address the requirements currently used to provide for safety of train movements in the RS&I (part 236). It should also be consistent with those requirements derived from laws of physics, such as minimum required braking distances, and provide guidance as to how such requirements should be met. FRA received one comment indicating that the term is mistakenly listed as “preliminary safety analysis” in the definition section as well as in the rule text. FRA understands that the term preliminary hazard analysis is a more common term in system safety work, but the usage in § 236.905(b) connotes a much broader scope of inquiry. Accordingly, while the term is far from ideal for this application, it has been carried forward as proposed. (The term “preliminary hazard analysis” (PHA) refers to a discrete step in the safety assessment process (specifically verification and validation) that follows or is performed in conjunction with the initial description of system requirements and leads to the creation of a hazard log. Although the term is not used in the PSP section of the rule, a PHA will typically be performed as part of the PSP development process.)
The term “product” is intended to encompass all signal or train control equipment which is processor-based, including: (i) A processor-based component of a signal or train control system, and (ii) a processor-based subsystem of a signal or train control system, or (iii) the system itself, if processor-based.
The term “safety-critical” is intended to apply to any function or system the correct performance of which is essential to the safety of personnel and/or equipment, or the incorrect performance of which could cause a hazardous condition, or allow a hazardous condition which was intended to be prevented by the function or system to exist. An example of the latter would be an “overlay” system that does not constitute any part of the method of operation, but maintains safe system operation should any one of the safety-critical functions be omitted or not performed correctly (
The term “subsystem” is intended to mean, for purposes of this rule, any defined portion of a system. Subsystems will normally have distinct functions, and may constitute systems themselves.
The term “system” is intended to mean a composite of people, procedures and equipment which are integrated to control signals or train movement within a railroad. (Adapted from Roland, Harold E. and Moriarty, Brian, “System Safety Engineering and Management,” Second Edition, John Wiley and Sons, Inc., 1990, p. 6.)
The term “system safety precedence” is intended to capture the concept of a priority of means for hazard elimination or mitigation, as stated in Military Standard 882C, “System Safety Program Requirements” (U.S. Department of Defense; January 18, 1993).
The term “validation” is slightly modified from the IEEE definition to incorporate the notion that validation procedures do not end with the end of the development cycle. Validation can be performed at any stage of a product's life cycle, including and especially after modifications are made to it. One supplier indicated that this definition ought to be modified to exclude references to what stages in a product's life-cycle validation is performed. Comments were solicited on this issue and most commenters concurred with the definition proposed in the NPRM. The dissenting commenter stressed the need to use existing definitions thereby advocating the use of the IEEE definition of validation. The commenter favors the IEEE definition because it was developed by a professional organization comprised of experts in the field, but finds nothing inherently wrong with the definition proposed by FRA. FRA notes the commenter's concern for consistency and the use of existing definitions, but is still inclined to use the definition proposed in the NPRM. Accordingly, the definition of validation does not change.
The system approach to safety is used pervasively in a variety of industries to reduce the risk of accidents and injuries. FRA has discussed the need for this approach to safety in three previous rulemakings: FOX High Speed Rail Safety Standards, NPRM, 62 FR 65478, (Dec. 12, 1997); Passenger Train Emergency Preparedness, final rule, 63 FR 24630, (May 4, 1998); and Passenger Equipment Safety Standards, final rule, 64 FR 25540, (May 12, 1999). System safety means the application of design, operating, technical, and management techniques and principles throughout the life cycle of a system to reduce hazards and unsafe conditions to the lowest level possible, through the most effective use of available resources. The system safety approach requires an organization to identify and evaluate safety hazards that exist in any portion of the organization's “system,” including those caused by interrelationships between various subsystems or components of that system. The organization then creates a plan designed to eliminate or mitigate those hazards. Where possible, the development of a system safety plan precedes the design, implementation, and operation of the system, so that potential risks are eliminated at the earliest possible opportunity. System safety plans are viewed as living documents, which should be updated as circumstances or safety priorities change or new information becomes available.
This section requires that railroads implement FRA-approved system safety plans known as Railroad Safety Program Plans (RSPP), enforce them, and update them as necessary. In this process, the railroad is required to implement their RSPP to identify and manage safety risks, and generate data for use in making safety decisions. Based on the philosophy of system safety planning, FRA believes that initiating this process prior to design and implementation of products covered by subpart H is necessary for development of safety-critical processor-based signal and train control systems.
Paragraph (a) requires the railroad to adopt an RSPP. FRA envisions that the RSPP will be a living document that evolves as new information and knowledge become available. Due to the critical role that the RSPP plays in this final rule, FRA is requiring the railroad to submit its initial plan for FRA review and approval prior to implementation of safety-critical products. Since the development of many safety-critical features in products will be guided by the RSPP, FRA believes that its review and approval is essential. FRA feels this role is a logical and necessary outgrowth of its responsibility to promulgate clear, enforceable, and effective safety standards. This paragraph also requires the railroad to submit its initial RSPP to FRA. FRA believes that the RSPP must be used as a guide in the earliest conceptual stages of a project.
FRA received general comments addressing the system safety approach suggesting that FRA provide sample documents or templates detailing format for the RSPP, as well as other documents required by the rule. FRA has decided that providing samples or
Paragraph (b) requires that the RSPP address minimum requirements for development of safety-critical products. It provides minimum requirements which the RSPP must address. FRA intends the plan to be a formal step-by-step process which covers: identification of all safety requirements that govern the operation of a system; evaluation of the total system to identify known or potential safety hazards that may arise over the life cycle of the system; identification of all safety issues during the design phase of the process; elimination or reduction of the risk posed by the hazards identified; resolution of safety issues presented; development of a process to track progress; and development of a program of testing and analysis to demonstrate that safety requirements are met. These minimum requirements are addressed in paragraphs (b)(1) through (b)(4).
FRA received general comments contending that much of the information requested in paragraph (b) is information that does not typically reside with the railroad but is normally information the developer or supplier maintains. The comments further explain that railroads, as the users of various systems, are not realistically expected to know the design criteria requested in paragraph (b). Although FRA understands and appreciates the commenter's concerns, FRA has decided that railroads will remain primarily responsible for providing the requested information, as railroads have the primary responsibility for the safety of their operations. Railroads should make the necessary arrangements to ensure this information is readily available from the supplier for submission to the agency.
Paragraph (b)(1) requires that the RSPP provide a detailed description of the tasks to be completed during the preliminary hazard analysis for every safety-critical product developed for use on the railroad. Paragraphs (b)(1)(i) through (b)(1)(iv) list several types of tasks which must be included in the RSPP. Railroads have indicated that requirement (iv), the identification of the safety assessment process, appears to duplicate (ii), the complete description of risk assessment procedures. FRA intends the risk assessment to be a measurement tool, used to benchmark safety levels and hopefully to provide valuable safety insight to designers. FRA views the safety assessment process as a more comprehensive process in which safety concerns are effectively identified and addressed at all stages of product development.
FRA sought comment on the railroads' claim and FRA's distinction. FRA received several comments concluding that the two concepts were confusing, as presented. One comment proposed language to further clarify the distinction. The commenter proposed that (b)(ii) be revised to read, “A complete description of risk assessment procedures used to benchmark safety/risk levels.” The commenter offered a revision of (b)(iv) which would read, “The identification of the complete safety assessment process used to identify and address all safety concerns at all stages of product development.” FRA did not find the language particularly enhancing or clarifying and has decided not to adopt the language for the final rule. Another commenter suggested that requiring a complete description of the risk assessment procedures may actually work in opposition to the goal of using the latest evaluation techniques. The commenter recommended a summary description of the risk assessment procedure which references a complete description of either a recognized standard or detailed procedure be included in the RSPP. Although FRA understands the commenter's point, FRA has decided to allow the rule text to remain the same. FRA believes the discussion noted above has served to clarify the distinction between the risk assessment and safety assessment. Although the commenters suggested the rule text was confusing, each commenter correctly described the two concepts and their differences. FRA does not believe a rule text change is necessary or helpful here.
Paragraph (b)(2) addresses how the RSPP identifies validation and verification methods for the initial design/development process and future changes, including any standards to be complied with in the validation and verification process. The objective is that a railroad create and maintain documentation which will facilitate an independent third party assessment, if required (see § 236.915(h)). FRA believes this process will also help to refine and standardize validation and verification processes for each railroad. FRA received one comment addressing this paragraph. The commenter suggested that an internal supplier's standards and procedures related to design verification and validation be exempt from this requirement. FRA believes that the approving agency, as well as a third party reviewer may have a need to see the actual standard. FRA has decided to make a slight change in the rule text to accommodate the commenter's concern. The last sentence of paragraph (b)(2) is revised to read, “The RSPP must require that references to any non-published standards be included in the PSP.” This change allows FRA the flexibility to require the supplier to provide a copy of the standard if necessary.
Paragraph (b)(3) requires that the RSPP contain a description of the process used during product development to identify and consider the human-machine interfaces (HMIs) which affect safety. The requirements set forth in this paragraph and in Appendix E attempt to mandate design consideration of, among other concerns, sound ergonomic design practices for cab layout in order to minimize the risk of human error, attention loss, and operator fatigue. FRA believes it is necessary for railroads/product manufacturers to be able to demonstrate how their human factors design requirements are developed and that they are developed at an early stage in the product development process.
Paragraph (b)(4) explains how the RSPP identifies configuration management requirements for products subject to subpart H. FRA believes that this requirement is necessary to help railroads maintain consistency in the configuration management of the products they use.
Paragraph (c) describes the initial review and approval procedures FRA will utilize when considering each railroad's RSPP. Paragraph (c)(1) indicates that the petition must be delivered to the Associate Administrator for Safety, for his or her respective action. Paragraph (c)(2) establishes the timing of the petition process. FRA normally responds in some fashion within 180 days with one of the responses listed (granting the petition, denying the petition, or requesting additional information). However, there may be circumstances in which FRA is unable to respond as planned. Consequently, paragraph (c)(3) indicates that inaction by FRA within the 180-day period means the petition will remain pending. The petition is not approved until the railroad receives an affirmative grant from FRA.
FRA invited and received comments addressing FRA's handling of RSPP petitions beyond 180 days after filing.
Paragraph (c)(4) provides that FRA be able to reopen consideration for any previously-approved petition for cause. This will help ensure that FRA has the ability to preempt problems erupting as a result of widely disparate safety priorities being implemented throughout the industry. Commenters who expressed concerns regarding paragraph (c)(3) also expressed concerns about paragraph (c)(4), citing similar reasons. These comments contend that the ability to reopen approved petitions for further review on the basis of unspecified criteria would only further delay implementation and in some cases may actually disrupt service. FRA disagrees with this comment as well, as this measure will be used in only rare cases. FRA has imposed a requirement upon itself to provide the railroad with specific reasons for such actions. This measure requires the agency to be able to provide clearly articulated reasons, not vague concerns for reopening the petitions. As noted with paragraph (c)(3), FRA foresees reopening petitions for cause in only the most problematic cases where any delay, cost or potential disruption in service will be balanced by FRA's responsibility to ensure safety.
Paragraph (d) establishes requirements for how and when RSPPs can be modified. First, FRA believes railroads can and should modify their RSPPs at any time. However, when RSPP modifications related to safety-critical PSP requirements are involved, FRA feels its approval is necessary. Paragraph (d)(1) requires that railroads obtain FRA approval in these cases. In any other case, the railroad would be able to implement the modification without FRA approval. Paragraph (d)(2) explains that procedures for obtaining FRA approval of RSPP modifications are the same for those used to obtain initial FRA approval, with the added requirements that the petition identify the proposed modifications, the reason for the modifications, and the effect of the modifications on safety.
This section describes the contents of the Product Safety Plan (PSP) that must be developed to govern each product. The provisions of this section require each PSP to include all the elements and practices listed in this section to assure these products are developed consistent with generally-accepted principles and risk-oriented proof of safety methods surrounding this technology. Further, each PSP must include acceptable procedures for the implementation, testing, and maintenance of the product.
FRA's existing regulations covering signal and train control systems do not include requirements of such detail since they are based on minimum design standards of long standing application that are recognized as appropriate to achieve the expected level of performance. As a result of the industry's desire to move to “performance-based standards” for signal and train control systems, FRA believes it is necessary to include the provisions contained in this section in order to assure safety of railroad employees, the public, and the movement of trains. In addition, FRA must ensure that key elements in the development of products correlate with the concepts of proven standards for existing signal and train control systems.
FRA sought comments on whether the elements contained in this section are adequate or whether there are other requirements that should be included to assure safety. FRA received one comment concluding that no additional requirements were necessary to ensure safety. FRA received another comment which did not explore the PSP requirements and their relationship to safety, but looked at their relationship to cost. The commenter concluded that generally, much of the information required in this section is not currently required for processor-based systems, as they are typically designed independent of railroad operational characteristics. The comment further reasoned that requiring an analysis of the system inclusive of these operating characteristics will increase the cost of development. FRA believes that suppliers and railroads will develop generic PSPs for most products that adequately address the requirements of the new subpart without substantial additional expense. It is true that the use of general purpose processors and their associated software brings about the availability of a large number of additional features and capabilities that may or may not be used in support of the primary intended function of the designer. As part of the design and evaluation process it is essential to ensure that an adequate analysis of the features and capabilities is made to minimize the possibility that conflicts may result by the use of features resulting in a software fault. Since this analysis is a normal cost of software engineering development, we do not believe it imposes a significant cost beyond what should already be done when developing safety critical software.
Paragraph (a)(1) requires that the PSP include system specifications that describe the overall product and identify each component and its physical relationship in the system. FRA will not dictate a specific product architecture but will examine each to fully understand how various parts relate to one another within a system. Safety-critical functions in particular will be reviewed to determine whether they are designed on the fail-safe principle. FRA believes this provision is an important element that can be applied to determine whether safety is maximized and maintainability can be achieved. During early discussions, prior to publication of the NPRM, concern emerged regarding the level of detail required in describing the product. FRA requested but received no comments on this issue. Accordingly, the rule language will remain the same.
Paragraph (a)(2) requires a description of the operation where the product will be used. FRA is essentially attempting to determine the type of operation on which the product is designed to be used. One signal system supplier noted that this paragraph may not be applicable to products which are independent of some or all of the railroad operation characteristics described in this paragraph. FRA requested comment on this issue and one commenter gave an example of a product where one (or potentially several) of the operational characteristics would not apply. The example cited was an interlocking controller where gross tonnage would not be relevant. In this instance, FRA would expect a short statement indicating which operational characteristics did not apply and why they were not applicable.
Paragraph (a)(3) requires the PSP to include a concepts of operations
Paragraph (a)(4) requires that the PSP include a safety requirements document that identifies and describes each safety-critical function of the product. FRA intends to use this information to determine that appropriate safety concepts have been incorporated into the proposed product. For example, existing regulations require that when a route has been cleared for a train movement it cannot be changed until the governing signal has been caused to display its most restrictive indication and a predetermined time interval has expired where time locking is used or where a train is in approach to the location where approach locking is used. FRA will apply this concept, among others, to determine whether all the safety-critical functions are included. Where such functionalities are not clearly determined to exist as a result of technology development, FRA will expect the reasoning to be stated and a justification provided describing how that technology provides equivalent or greater safety. Where FRA identifies a void in safety-critical functions, FRA will expect remedial action prior to use of the system. FRA received no comments specifically addressing the adequacy of this process for preserving railroad safety and has not changed the rule text.
Paragraph (a)(5) requires the PSP to contain a document demonstrating that the product architecture satisfies the safety requirements. The product architecture is expected to cover both hardware and software aspects which identify the protection developed against random hardware faults and systematic errors. Further, the document should identify the extent to which the architecture is fault tolerant. This provision may be included in the requirements of paragraph (a)(1).
Paragraph (a)(6) requires that a hazard log be included in the PSP. This log consists of a comprehensive description of all hazards to be addressed during the life-cycle of the product, including maximum threshold limits for each hazard (for unidentified hazards, the threshold shall be exceeded at one occurrence). The hazard log addresses safety-relevant hazards, or incidents/failures which affect the safety and risk assumptions of the product. Safety-relevant hazards include events such as false proceed signal indications and false restrictive signal indications. If false restrictive signal indications happen with any type of frequency, they could cause train crew members or other users (roadway workers, dispatchers, etc.) to develop a lackadaisical attitude towards complying with signal indications or instructions from the product, creating human factors problems. Incidents in which stop indications are inappropriately displayed may also necessitate sudden brake applications that may involve risk of derailment due to in-train forces. Other unsafe or wrong-side failures which affect the safety of the product will be recorded on the hazard log. The intent of this paragraph is to identify all possible safety-relevant hazards which would have a negative effect on the safety of the product. Right-side failures, or product failures which have no adverse effect on the safety of the product (
FRA received a comment suggesting that FRA's reference to threshold limits in the hazard log is essentially the same as quantitative risk assessment. This commenter recommended use of the MIIL-STD-882 classifications. This issue was addressed in discussions at the San Antonio meeting of the Working Group. Opposition to the use of the MIL-STD-882 was articulated, as well as concern that the comment was not really applicable to the section. FRA has decided that the MIL-STD-882 is not appropriate here and accordingly, the text will remain the same.
Paragraph (a)(7) requires that a risk assessment be included in the PSP. FRA will use this information as a basis to confirm compliance with the minimum performance standard.
Paragraph (a)(8) requires that a hazard mitigation analysis be included in the PSP. The hazard mitigation analysis must identify the techniques used to investigate the consequences of various hazards and list all hazards addressed in the system hardware and software including failure mode, possible cause, effect of failure, and remedial actions. A safety-critical system must satisfy certain specific safety requirements. Leveson, Nancy G., “Safeware: System Safety and Computers,” Addison-Wesley Publishing Company, 1995. To determine if these requirements are satisfied, the safety assessor must review and assess the results of the following tasks:
1. Hazards associated with the system have been comprehensively identified.
2. Hazards have been appropriately categorized according to risk (likelihood and severity).
3. Appropriate techniques for mitigating the hazards have been identified.
4. Hazard mitigation techniques have been effectively applied.
FRA does not expect that the safety assessment will prove that a product is absolutely safe. However, the safety assessment should provide evidence that risks associated with the product have been carefully considered and that steps have been taken to eliminate or mitigate them. Hazards associated with product use need to be identified, with particular focus on those hazards found to have significant safety effects. Then, the designer must take steps to remove them or mitigate their effects. Hazard analysis methods are employed to identify, eliminate and mitigate hazards. Under certain circumstances, these methods will be required to be reviewed by an independent third party for FRA approval.
FRA received a general comment indicating that the requirements of paragraphs (a)(6) and (a)(8) should be combined and required as one document. The concern presented here is similar to one echoed in several comments regarding the format for both the RSPP and PSP. Some comments requested sample documents to be used as templates by the railroads. FRA is not dictating the format in which the information should be submitted, as the variation in railroad and product will likely drive the outcome of the document. However, FRA believes that documents submitted for the North American Joint PTC Illinois project can be looked to as examples, but are not intended to be a template for submissions. FRA believes the issue of combining the requirements of
Paragraph (a)(9) also requires that the PSP address safety verification and validation procedures. FRA believes verification and validation for safety are vital parts of the development of products. Verification and validation requires forward planning and, consequently, the PSP should identify the test planning at each stage of development and the levels of rigor applied during the testing process. FRA will use this information to assure the adequacy and coverage of the tests are appropriate.
Paragraph (a)(10) requires the PSP to include the results of the safety assessment process by analysis that identifies each potential hazard and an evaluation of the events leading to the hazard; identification of safety-critical subsystems; the safety integrity level of each safety-critical subsystem; design of each safety-critical subsystem; results of a safety integrity analysis to assess the safety integrity level achieved by the safety-critical subsystems; and ensure from the analysis that the safety integrity levels have been achieved. FRA expects the safety assessment process to be clearly stated and thorough according to the complexity of the product. FRA realizes that paragraphs (a)(9) and (a)(10) may overlap in terms of requirements, and considered consolidation of the concepts required in these two paragraphs. FRA decided to leave the rule language unchanged. The agency has an expectation of some repetition in the railroad's submissions.
Paragraph (a)(11) requires a human factors analysis which addresses all human-machine interfaces (HMI's) and all product functions to be performed by humans to enhance or preserve safety. FRA expects this analysis to place special emphasis on human factors coverage of safety-critical hazards including the consequences of human failure to perform. Each HMI is to be addressed including the basis of assumptions used for selecting each such interface, its effect upon safety and identification of potential hazards associated with each interface. Where more than one employee is expected to perform duties dependent upon the output of, or input to, the HMI, the analysis must address the consequences of human failure to perform singly or in multiple. FRA uses this information to determine the HMI's effect upon the safety of railroad operations. The human factors analysis must address all criteria listed in Appendix E, unless approval is obtained from the Associate Administrator for Safety to use other equally suitable criteria. FRA believes that designers must have this flexibility.
Paragraph (a)(12) requires the railroad to include in its PSP the training, qualification, and designation program for workers whether or not railroad employees who will perform inspection, testing, and maintenance tasks involving the product. FRA believes many benefits accrue from the investment in comprehensive training programs which, among other things, are fundamental to creating a safe workforce. Effective training programs can result in fewer instances of human casualties and defective equipment, leading to increased operating efficiencies, less troubleshooting, and decreased costs. FRA expects any training program to include employees, supervisors and contractors engaged in railroad operations, installation, repair, modification, testing, or maintenance of equipment and structures associated with the product.
Paragraph (a)(13) requires the PSP to identify specific procedures and test equipment necessary to ensure the safe operation, installation, repair, modification and testing of the product. Requirements for operation of the system must be succinct in every respect. The procedures must be specific about the methodology to be employed for each test to be performed that is required for installation, repair, or modification including documenting the results thereof. FRA will review and compare the repair and test procedures for adequacy against existing similar requirements prescribed for signal and train control systems. FRA will use this information to ascertain whether the product will be properly installed, maintained, and tested.
Paragraph (a)(14) provides that products may be so designed that existing requirements contained in part 236, subparts A, B, C, D, E, and F are not applicable. In this event, the PSP must identify each pertinent requirement considered to be inapplicable, fully describe the alternative method used that equates to that requirement and explain how the alternative method fulfills or exceeds the provisions of the requirement. FRA notes that certain sections of part 236 may always be applicable to subpart H products. For example, § 236.0 prescribes, among other requirements, the conditions and speeds for which block signal systems and automatic cab signal, train stop, and train control systems must be installed. These are benchmark safety levels related to operational considerations against which the safety performance of innovative newer systems will be compared. Further, FRA will determine whether the product fully embodies the concepts of proven standards for existing signal and train control systems, as captured by subparts A-G of part 236.
Paragraph (a)(15) requires the PSP to include a description of the security measures necessary to meet the specifications for each product. Security is an important element in the design and development of products and covers issues such as developing measures to prevent hackers from gaining access to software and developing measures to preclude sudden system shutdown. The description should identify the formal method used in development of the system software, identify each hazard and its consequence in event of failure that was mitigated by using the formal method, and indicate the results of the formal proofs of correctness of the design. Where two or more subsystems or components within a system have differing specifications, the description should address the safety measures for each subsystem or component and how the correctness of the relationships between the different specifications was verified. Where two formal methods are used in developing safety-critical software from the same specification, the description should explain why the more rigorous method was not used throughout development process and the effect on the design and implementation.
FRA received several comments on paragraph (a)(15), including one that suggested refining the concept of “security measures.” FRA is reluctant to modify the text or refine the concept, as FRA is concerned about all dimensions of security.
Paragraph (a)(16) requires warnings to ensure safety is addressed in the Operations and Maintenance Manual and warning labels placed on the equipment of each product as necessary. Such warnings include, but are not limited to, means to prevent unauthorized access to the system; warnings of electrical shock hazards; cautionary notices about improper usage, testing or operation; and configuration management of memory and databases. The PSP should provide an explanation justifying each such warning and an explanation of why there are no alternatives that would mitigate or eliminate the hazard for which the warning is placed.
Paragraph (a)(17) requires the railroad to develop comprehensive plans and
Paragraph (a)(18)(i) requires the railroad to provide a complete description of the particulars concerning measures required to assure products, once implemented, continue to provide the expected safety level without degradation or variation over their life cycles. The measures must be specific regarding prescribed intervals and criteria for testing; scheduled preventive maintenance requirements; procedures for configuration management; and procedures for modifications, repair, replacement and adjustment of equipment. FRA intends to use this information, among other data, to monitor the product to assure it continues to function as intended.
Paragraph (a)(18)(ii) provides a PSP requirement to include a description of each record concerning safe operation. Recordkeeping requirements for each product are discussed in § 236.917.
Paragraph (a)(19) requires that the PSP include a description of all backup methods of operation and safety critical assumptions regarding availability of the product. FRA believes this information is essential for making determinations about the safety of a product and both the immediate and long-term effect of its failure. Railroads have indicated concern that product availability is not in itself a safety function, and that therefore this requirement may be too broad. FRA has contended that availability is directly related to safety to the extent the backup means of controlling operations involves greater risk (either inherently or because it is infrequently practiced). FRA invited comment on this issue but received none.
Paragraph (a)(20) requires that the PSP include a complete description of all incremental and predefined changes.
Paragraph (b) addresses predefined changes. PSPs must identify the various configurable applications of the product, since this rule mandates use of the product only in the manner described in its PSP (see § 236.915(d)). FRA recognizes that railroads' rights-of-way vary with regard to the number of tracks and layouts of interlockings, junctions and stations over which train movements are made at various speeds and density. Products may contain identical subsystems or components having configurable features to provide the capability of controlling a variety of track layout schemes. The PSP must clearly set forth those attributes in such equipment that may be employed or expunged without degradation or variation of safety over the life cycle of the system, as well as the impact such changes may have in the risk assessment. Satisfaction of the minimum performance standard must be demonstrated for each predefined change. Also, the PSP must fully describe the procedures to be followed for each change and the inspections and tests necessary to assure the system functions as intended.
Paragraph (c) addresses incremental and maintenance changes and changes classified as safety-critical software upgrades, patches, or revisions. The term “incremental change” is intended to capture the concept of planned version changes to a product, usually software-type changes. FRA believes these changes will be necessary in order for products to acquire capabilities to perform added functions as safety requirements change. The goal of this paragraph is to encourage as many subsequent product modifications as possible to be considered by initial designers during the product development stage, in order to avoid, to the extent possible, changes made by persons with no link to initial safety design considerations.
The NPRM recognized that hardware and software suppliers were in the best position to know about problems with the products used by the railroads. Commenters indicated that much of the information generally needed for compliance with this rule typically resides with the supplier. Suppliers will likely have information regarding problems with their products. Given the importance of proper configuration management in safety critical systems, FRA believes it is essential that railroads learn of and take appropriate action to address all safety critical software upgrades, patches or revisions for their processor-based system, subsystem, or component, whether or not the railroads have experienced a failure of their system, subsystem, or component. At the same time, FRA recognizes the complexity of the electronics market. Some software will be provided by non-railroad suppliers, often embedded in hardware. Other software may be imported from non-railroad applications; and neither the railroad nor the system integrator (supplier to the railroad) may have access to all information regarding coding errors or hardware failures. Business failures will occur, and competent supply houses may lose their technical edge over time.
FRA seeks to encourage commercial relationships that will contribute to product support over the long term; however, what is perhaps more critical to FRA's oversight role is obtaining a clear understanding of the robustness of the information network available to the railroad for life cycle product maintenance and thus of the residual risk associated with any gaps in that network.
Accordingly, FRA is responding to such comments in the area of configuration management by adding text to the rule requiring railroads disclose arrangements with their suppliers for product support, which would typically include immediate notification of all safety critical software upgrades, patches, or revisions for their processor-based system, subsystem, or component. FRA will be looking for evidence of this arrangement between railroad and supplier in its review in accordance with § 236.909(b). Failure to have such an agreement with a supplier will likely impact FRA's determination with a high degree of confidence that introduction of the new system will not result in a degradation of safety.
Upon such notification and provision of software changes, the upgrade, patch, or revision must be installed without undue delay. Until the software upgrade, patch, or revision has been installed, a railroad must treat the product as if a safety critical hazard exists and take the appropriate action specified in the PSP and by the supplier. FRA believes this is necessary to ensure that any component changes that, if left uncorrected would increase risk or interfere with the safety of train operations, are promptly addressed and that a common safety baseline is maintained.
In particular, FRA believes it is the responsibility of the railroads to either develop a mutually acceptable external contractual relationship with software developers capable of providing the required timely software support or to demonstrate they have in-house software development capability to provide the necessary support . FRA would expect that this support would include providing the necessary safety software upgrade, patch or revisions after determination of a need, identification of the specific product and software version involved, the nature of the risk, any recommended mitigation pending assurance of the corrected software, and any necessary regression testing. Lack of such a fundamental life cycle software support
The final rule requires railroads to disclose these relationships. FRA intends to look for these relationships in its PSP reviews. FRA will intervene in accordance with § 236.913(g)(5) by reopening consideration of a PSP petition for cause, if there is a breakdown in communications that could adversely affect public safety. FRA will attempt to facilitate communications between the parties involved prior to formally reopening review. In the event that the need for a modification to safety critical software is identified, and the product developer is no longer in business or is unwilling to support the product, FRA will work with the affected railroads and supplier trade organizations in determining an appropriate course of action taking into consideration the extent and severity of the situation, and the availability of the original source code.
Since not all railroads may experience the same software faults or hardware failures, the developer's software development, configuration management, and fault reporting tracking system play a crucial role in the ability of the railroad and the FRA to be able to determine and fully understand the risks and their implications. Without an effective configuration management tracking system in place it is difficult, if not impossible, to fairly evaluate risks associated with a product over the life of the product. FRA expects railroads to enter into contractual arrangements with the software suppliers to ensure that the railroad is made aware of problems occurring with the software they use.
The new language also places a direct obligation on suppliers to report safety-relevant failures, which would include “wrong-side” failures and failures significantly impacting on availability where the PSP indicates availability to be a material issue in the safety performance of the larger railroad system. Suppliers would take on this responsibility under contract to the railroad (as disclosed in the PSP). The provision is necessary to ensure public safety in any case where a commercial dispute (
FRA is issuing a substantive standard which is performance-based rather than prescriptive. In short, FRA desires to establish what level of performance must be achieved, but not how it must be achieved. The objective of the minimum performance standard FRA requires is simple: new processor-based signal and train control systems must be at least as safe as the systems they would replace. The challenge inherent in this performance-based standard is measuring performance levels. For FRA, this challenge becomes one of being able to confirm compliance.
Paragraph (a) establishes the performance standard for all products to be covered by this rule. The railroad must establish with a high degree of confidence through its safety analysis that introduction of the system will not result in a safety risk level that exceeds the level of safety risk in the previous condition. In short, the railroad must prove that safety is not degraded. This standard places the burden on the railroad to demonstrate that the safety analysis provides a high degree of confidence. Under this regulatory scheme, FRA will have access to the railroads' analyses, and will be likely to detect obvious shortcomings in them.
Paragraph (b) indicates that the FRA Associate Administrator for Safety will rely on the factors listed in § 236.913(g)(2) when assessing whether the petitioner has met the performance standard for the product through employment of sufficient safety analysis. “FRA review of PSP” is intended to apply to both FRA review of petitions for approval and FRA review of informational filings, which, for good cause, are treated as petitions for approval. Railroads have indicated concern that this proposal does not provide for an administrative appeals procedure. FRA believes that final agency determinations under this subpart should be made at the technical level, rather than the policy level, due to the complex and sometimes esoteric subject matter. FRA sought comment on the concern and its view and received one comment in agreement with the agency view of an administrative appeals process. FRA has not changed the rule text.
Paragraphs (c) and (d) establish standards for the scope of the risk assessment to be conducted. Unless criteria for an abbreviated risk assessment are met, a full risk assessment would be required for each product.
Paragraph (c) describes the scope for a full risk assessment. The risk assessment need only address risks relevant to safety of the product. For instance, the risk of injury due to a broken handhold on a freight car would not be affected by implementation of a new signal and train control system, and therefore need not be included in the risk assessment. However, any risk which is affected by introduction, modification, replacement or enhancement of the product must be accounted for. The standard further explains that these risks can be broken down into three categories to include: New risks, eliminated risks, and risks neither new nor eliminated whose nature (probability of occurrence or severity) has changed. FRA understands that many of the affected risks relate to very low probability events with severe consequences. These risks might be overwhelmed if analyzed in combination with other, more probable risks, which would not be affected by the change.
Paragraph (d) establishes a simpler approach to demonstrate compliance with the performance standard for less complex changes such as replacement of certain signal and train control system components. FRA is allowing this simpler approach when the type of change is sufficiently basic. This proposed class of changes is defined as one which does not introduce any new hazards into the railroad operation (that is, different from the previous method of operation) and which maintains the same (or lower) levels of risk exposure and severity for hazards associated with the previous condition. FRA felt comfortable with this distinction since no new hazards are introduced with introduction of the product, and hazards which were present in the original operation are sufficiently contained (not increased in severity or exposure thereto). An example of this type of change would be replacement of a component in a signal and train control system with a newer-generation processor-based component which performs the same function. No new hazards would likely be introduced that weren't already there, original hazards would not be subject to higher exposure, and original hazards would not be subject to an increase in severity. Unless introduction of the new product is accompanied by changes in operation, the hazards encountered by the new product (which will normally be a component of the system) would be identical in both severity and exposure.
FRA received a comment indicating that the text as drafted in the NPRM did not clearly express the concept. The proposed text stated,
An abbreviated risk assessment demonstrates that the resulting MTTHE for the proposed product is greater than the MTTHE for the product or methods performing the same function in the previous condition.
An abbreviated risk assessment supports the finding required by paragraph (a) of this section if it establishes that the resulting MTTHE for the proposed product is greater than or equal to the MTTHE for the system component or method performing the same function in the previous condition.
If in the above equation the hazard severity is kept constant, hazard probability remains directly proportional to the risk. This is true only if the exposure to the risk, which is related primarily to railroad operating practices (
During early Working Group discussions, prior to publication of the NPRM, suppliers requested that severity not be locked into place in order to fit into this exception, but also to allow for cases where introduction of the product may bring about a reduction in hazard severity. Although an example might be difficult to imagine, FRA is confident that in such case it is mathematically impossible for safety risk levels to increase. Under these conditions, the FRA feels that MTTHE is a sufficient indication of risk, thereby warranting a simplified risk assessment. If a more complex risk assessment is more advantageous to the supplier or railroad, the rule permits that approach.
FRA invited comments on whether this exception from the full rigors of the risk assessment is appropriate, and if not, to what extent the required analysis should become more rigorous as the complexity of the proposed system increases. FRA received one comment asking for guidance regarding the level of proof necessary to fall into this exception. Despite informative discussion on this comment, FRA could not develop language that would further clarify this point. FRA has further reviewed the language and found the requirements of paragraph (d) have sufficient detail to provide the necessary guidance. FRA has no interest in preventing use of the abbreviated risk assessment, when appropriate.
FRA has reviewed paragraph (d) in an effort to create some additional flexibility and to improve clarity. The paragraph has been revised from the NPRM to place the explanation of when an abbreviated risk assessment may be used, at the beginning. In addition, FRA also endeavored to respond to a comment from the supplier community seeking an opportunity to utilize traditional methods as an alternative approach for analysis. To address this need, a new paragraph (d)(3) has been added that permits satisfaction of the performance standard by reference to safety criteria stated in a specified industry standard recently adopted by the American Railway Engineering and Maintenance Association (AREMA). That criterion is stated in Part 17.3.5 of the AREMA Communications & Signaling Manual (AREMA Manual) and involves the application of safety principles and procedures in the design of railway signal equipment. This alternative test also requires compliance with the principles set forth in Appendix C and with two additional named AREMA standards, AREMA Manual Part 17.3.1 and AREMA Manual Part 17.3.3. These new product development standards specify a Safety Assurance Program for Electronic/Software Based Products, Practices for Hardware Analysis, and Procedures for Hazard Identification and Management. Recognition of compliance with these standards, in conjunction with the design principles set forth in Appendix C, extends the advantages of a performance-based standard to traditional signal or train control products. In the final rule, FRA incorporates the AREMA standard by reference.
The basis for this alternative standard was suggested by railroad signal suppliers, during the final Working Group discussions on recommendations for a final rule, as a means of satisfying concerns expressed in the public comments regarding the need to hold down costs of safety analysis for traditional products built on fail safe principles. Suppliers noted that great confusion and delay could result under the proposed rule should a traditional signal or train control product be offered as a replacement for a similar product. In such a case, inconsistent supplier approaches to making estimates of unsafe failures could unnecessarily complicate safety analysis. FRA agrees that introduction of new products should not be complicated by paper exercises over small differences in theoretical risk when both the new product and the product to be replaced have been engineered to strictly limit the possibility of unsafe failures.
FRA has added new language calling for adherence to safety principles set forth in Appendix C and the new AREMA standard and permits qualification of a product even if it is not possible to achieve a high degree of confidence on the evidence that the MTTHE of the proposed product is equal to or greater than the product it is replacing. Such a case could arise in a variety of circumstances. For instance, it might prove extremely difficult to establish comparability for the new product under subpart H where replacing a similar product developed under the previous rule. In another case, the safety analysis methods of two different suppliers might not permit direct comparison of the degree to which MTTHE estimates are well founded, or the very high mean time estimates of both suppliers might render largely academic any differences. Paragraph (d) provides a solution to these conundrums.
FRA also notes there are times when differences in theoretical risk, while “large”, are of such a nature as to have no practical effect upon the situation. In many cases, changes to these risk value can be done with little impact, because the failure in question is so unlikely to occur within the life of the product. Paragraph (d)(3) is intended to provide flexibility where there is no reason to believe that differences in MTTHE estimates reflect the potential for an actual degradation of safety.
Paragraph (e) establishes general principles for the conduct of risk assessments and which methods may be used. Paragraph (e)(2) contains general criteria for each risk calculation. FRA has identified three variables which must be provided with risk calculations: accident frequency, severity, and
Risk exposure may be indicated by the total number of train miles traveled per year or total passenger miles traveled per year, if passenger operations are involved. FRA believes risk to operations involving passengers is highly relevant, since advanced train control technology will most certainly find uses on such lines. NTSB has specifically recommended application of advanced train control technology to lines with passenger traffic. NTSB/Railroad Accident Report-93/01. FRA believes any change should not adversely affect the safety of passenger operations. However, a risk assessment method which does not account separately for passenger miles could, in theory, obscure an increase in risk for passengers that was offset by a reduction in freight-related damages.
In early drafts of the NPRM, FRA had proposed to the Standards Task Force that risk measurements be adjusted for exposure in units of train-miles per year, passenger-miles per year or ton-miles per year, but that the units not be mandated in the rule. Most freight railroads keep safety data in terms of train-miles, employee hours, and in some cases gross ton-miles. Since train-mile data must be reported to FRA under part 225, FRA does not believe railroads will burden themselves additionally by maintaining other data for purposes of this requirement. Passenger-miles should be readily available from entities providing the service.
The FRA sought comment on the NPRM's proposed requirement to account for exposure in the units mentioned above, specifically regarding the appropriateness of this approach and other possible approaches. FRA received comments from suppliers indicating that railroads should have more flexibility in determining what risk parameter is appropriate. The comments indicated the use of train-miles or hours should be acceptable and the use of the MIL-STD-882 should be acceptable for severity. Discussions of this comment within the Working Group left FRA satisfied that railroads who will be required to comply with this rule will be comfortable with train-miles or passenger-miles. FRA has decided to modify the risk exposure metric for passenger operations to use passenger-miles as a measure of exposure in passenger operations, but will otherwise leave the NPRM language unchanged.
Paragraph (e)(2) also covers a requirement for risk severity measurements. FRA is allowing railroads to measure risk severity either in terms of total accident costs, including property damage, injuries and fatalities, or in simpler terms of expected fatalities only. FRA allows the two alternatives in order to allow flexibility, and to permit the railroads to avoid metrics which could be misconstrued as trading dollars for lives, when in fact they would be more comprehensive in avoiding accident consequences.
FRA wishes to make clear that the sole purpose of the risk assessment in this rule is to require railroads to produce certain safety risk data which will allow the agency to make informed decisions concerning projected safety costs and benefits. FRA feels this is a necessary component of the performance standard in order for FRA to be able to effectively carry out its statutory duties as a regulatory agency. By establishing a requirement for a risk assessment, FRA does not intend to create a presumptive amount of damages for tort liability after an accident occurs. In order to help maintain the safety focus of this requirement, FRA is allowing railroads to use only predicted fatalities as the risk metric (except in the case where passenger service is provided). FRA believes that for the types of safety risks involving signal and train control, total accident costs and total fatalities correspond closely enough to allow an accurate view. Thus FRA believes that allowing the alternative measure would not change substantially the risk assessment.
Paragraph (e)(3) involves the issue of concurrent changes in railroad operations. Railroads intending to implement products covered by subpart H may intend to change operational characteristics at the same time to take advantage of the benefits of the new technology. FRA envisions increased train volumes, passenger volumes, or operating speeds, or all three, to be likely changes to accompany implementation of subpart H products. The rule requires the railroad to analyze the total change in risk, then separately identify and distinguish risk changes associated with the use of the product itself from risk changes due to changes in operating practices (
The second sentence of paragraph (e)(3) concerns changes in operating speeds related to required signal and train control systems for passenger and freight traffic. In such case, the provisions of § 236.0 normally apply, mandating the use of certain technologies/operating methods. Thus, for changes to operating speeds, the previous condition calculation must be made according to the assumption that such systems required by § 236.0(c) (and § 236.0(d), if applicable) are in use. This requirement ensures that a minimum level of safety set by § 236.0, which otherwise normally applies, is respected and not circumvented.
In addition to including an adjustment in the previous condition to account for increases in train speeds as addressed in § 236.0, FRA also intends that even where § 236.0 would not require upgraded systems due to speed increases, an adjustment be made if necessary to take into consideration the need for fluid traffic management. For instance, if the railroad proposed to implement a non-vital overlay train control system in dark territory in connection with major projected increases in traffic, the previous condition would need to be adjusted to assume installation of a traffic control system (which, under the options available under current part 236, would be needed as a practical matter to move the increased numbers of train across the territory). This provision was offered in the proposed rule as a result of FRA's view that operations in dark territory have a much higher risk of collision than in signal territory (when normalized on a train mile basis); accordingly, it was believed that this adjustment willset the safety baseline at an appropriate level for purpose of making the necessary comparison. FRA reasoned that failure to make this adjustment within the previous
During discussions at the December 2001 Working Group meeting, the concern emerged that a density-linked trigger for adjustment of the base case could inappropriately constrain the ability of railroads to manage traffic flows across their systems and respond to shipper requirements. Questions were raised concerning the empirical basis for FRA's assumption. After independent consideration of the informative discussion, FRA agreed that the issue deserved more detailed consideration.
A small team of stakeholder representatives formed by the RSAC PTC Working Group discussed the issue of adjusting the base case, working from data on the Volpe Center's rail network. Refinements to the traffic flows were required to achieve the necessary fidelity to actual conditions during the study period.
Concern was initially expressed that risk did not go up with train frequency, that instead it appears to go down, so there was not good reason to adjust the base case. FRA maintained that risk increased with train frequency. FRA also maintained that cumulative risk on a line segment was relevant to safety, and that with current technologies railroads could not move increased train densities on most lines without installing systems such as traffic control, which greatly reduce risk. As the traffic density increases the per train-mile cost of providing traffic control systems decreases. Initial discussions promoted the conclusion by some that risk did not vary by method of operation. FRA and other stakeholders agreed that for any system, the risk would tend to increase with train speed. FRA researched the issue, through the Volpe Center and other contractors. FRA presented the research to the team, which agreed on the following:
• Risk per train mile in dark territory (
• Risk doesn't change much with increased speed or frequency in operations already using TCS, ABS and Auto.
• Risk in dark territory does increase with speed and/or frequency.
• The cost per mile of risk from positive train control preventable accidents is about 12 cents per train-mile in dark territory and is about 6 cents per train-mile elsewhere.
These facts were based only on analysis of freight operations and excluded any passenger trains or accidents from risk metrics.
(In addition, FRA notes that within dark territory risk from positive train control preventable accidents per train-mile ranges from about 9 cents per train-mile at low density, to between 15 and 18 cents per train-mile at high density.)
FRA also presented evidence that operations with more than 12 trains per day in dark territory were rare, operations with more than 16 trains per day in dark territory were extremely rare, and operations with more than 20 trains per day in dark territory were almost nonexistent. FRA believes that high volume operations in dark territory are rare because such operations are uneconomical under current regulations. FRA believes that a functioning market induces railroads to adopt signal systems, which promote safety and fluid train movement in higher volume operations, for purely business reasons, but that if the rule here were to go into effect without adjusted base case provisions, then some railroads might adopt systems which were not as safe as TCS in high volume operations, creating a market failure.
Under the final rule as adopted, if the change in railroad operation were to result in crossing one of the speed thresholds in § 236.0, then the adjusted base case will be the system currently utilized under normal practice for that maximum authorized speed. For freight speeds exceeding 49 miles per hour and passenger speeds exceeding 59 miles per hour, the base case will be a traffic control system.
Where speeds exceed 79 miles per hour, § 236.0 currently requires automatic cab signals, automatic train stop, or automatic train control. However, FRA has supplemented these requirements to address specific needs as previously discussed; and essentially all planning for such investments is conducted in support of high speed passenger rail service. Intermittent automatic train stop technologies are not fail safe in nature, do not function in the event of inappropriate operator acknowledgment, and do not address overspeed operation. By itself, automatic cab signaling provides only warning of signal downgrades requiring acknowledgment without enforcement; and this configuration has been determined to be inappropriate for service on the Northeast Corridor as a result of major catastrophic events. Continuous automatic train stop paired with cab signals does not provide speed control, presenting the possibility of ineffectual intervention (and at a cost for a new installation comparable to automatic train control, which does regulate speed consistent with cab signal indications). Accordingly, FRA has scaled the triggers to reflect acceptable contemporary practice. For speeds in the range of 80 to 110 miles per hour, automatic cab signals and train control will be employed for the adjusted base case.
For speeds above 110 miles per hour, FRA will determine the appropriate base case in light of the characteristics of the planned operation and service experience within the speed range. Factors that will be considered include average train speeds, mix of traffic, complexity of the operation, presence or absence of special hazards (
As further clarification of the concept included in § 236.909(e)(3) of the NPRM, the final rule provides that the adjusted previous condition (base case) must include TCS if any change results in a volume of more than twelve trains per day, unless a specific exception applies, or an increase of more than four passenger trains per day. Volume is computed based on annual average density, so density on any given day may be considerably higher. (Accordingly, the practical implications of these density triggers for adjustment of the base case are expected to be quite limited.) FRA included a new provision which permits the railroad to demonstrate in situations where volumes will exceed 12 trains per day, but will not exceed 20, that the current method of operation is adequate for the specified volume and will not delay movement of trains nor will it unreasonably increase expenditures to expedite movement.
Questions regarding generalizing models surfaced during discussions of the risk assessment. FRA believes it is permissible to generalize a model. In reviewing a model which has been generalized, FRA will consider whether the railroad has analyzed the system where the comparison is likely to be the least favorable (
In reviewing a generalized assessment FRA will consider whether the system has actually been deployed, and how well actual operating experience conforms to model predictions. FRA will give tighter scrutiny to models attempting to generalize where there is no actual operating experience, and will expect more convincing data to show with a high degree of confidence that the proposed system will be at least as safe as what it would replace.
During the discussion of the base case issue with the Working Group, post NPRM, it became evident that a significant portion of the concern with respect to triggers for adjustment of the base case had to do with the complex circumstances surrounding the transition from signal-based methods of operation to methods of operation utilizing cab displays and intervention to mitigate risk. Members of the Working Group suggested that the rule address the implications of discontinuance or material modifications of signal systems under part 235 in the final rule. FRA understood the need to address the issue and does so in a new paragraph at the end of § 236.909.
The new provision presents three situations that are foreseeable as railroads seek approval of discontinuance and material modifications under part 235 and of PSPs under the new subpart H. Section 236.911(b) provides that FRA may consolidate handing of these two proceedings. The first situation is one where the part 235 application supports a discontinuance or material modification, without regard to protections for safety in the PSP. The obvious extension of the principles developed in this rulemaking is that the previous condition would be that allowed following the grant of the discontinuance or material modification. Thus, in a typical case the railroad would have broad latitude to implement the PSP.
The second situation is one where FRA determines that the part 235 application should be denied. In that case, the previous condition would not be subject to adjustment, and the PSP would be evaluated against the actual level of safety on the territory.
The third situation is one where both outright approval and outright denial appear inappropriate given the existing situation on the territory and the pendency of the request for PSP approval. The new provision says that FRA will consider whether the proposed actions, taken as a whole, are consistent with safety and in the public interest. These are the same criteria applicable to waiver of existing FRA standards. It is possible to envisage a case where the railroad's case for discontinuance is rather strong (
Delineating more precisely what outcomes may be appropriate in such cases is not possible given the wide variety of considerations that may apply as technology and railroad operations evolve. Further, FRA policy regarding the retention of signal systems has not been, and cannot expect to be, static; rather, that policy may evolve as railroad operations evolve, operating rules are refined, related hazards are addressed (
Paragraph (a) provides that the subpart does not apply to products in service as of May 6, 2005. Railroads employ numerous safety-critical products in their existing signal and train control systems. These existing systems have proven to provide a very high level of safety, reliability, and functionality. FRA believes it would be a tremendous burden on the rail industry to apply this subpart to all existing systems, which have to date proven safe.
FRA received one comment contending that existing solid state equipment should not be grandfathered. FRA disagrees with the commenter and believes the safety record of this equipment is good and does not warrant the burden necessary to essentially re-prove that it is safe.
Another commenter inquired whether products with a proven track record in the light rail or transit industry would be excluded from the new requirements. Similarly, one commenter wanted clarification that the exclusion would apply to signal and train control products in service, in freight or passenger railroad applications internationally, regardless of where in the world the products are installed.
FRA was unable to fashion an outright exclusion from subpart H requirements for equipment previously used in transit and foreign service. FRA does not have the same degree of direct access to the service history of these systems. Transit systems, except those that are connected to the general railroad system, are not directly regulated by FRA at the national level. FRA's experience with eliciting safety documentation from foreign authorities has not been good, particularly given the influence of national industrial policies.
However, FRA does believe that the potential exists for simplification of the PSP process (rather than an exclusion from the process) under which the railroad and supplier could establish safety performance at the highest level of analysis for the particular product, relying in part on experience in the other service environments and showing why similar performance should be expected in the U.S. environment. International signal suppliers should be in a good position to marshall service histories for these products and present them as part of the PSP. Whether working within subpart H or in a waiver context, the applicant(s) should address additional issues such as the following:
1. Detailed description of the change, the associated affected components, functional data flow changes, and any changes associated with safety capabilities of the product.
2. The analysis used to verify that the change did not introduce any new safety risks, or if potential risks were added, the risks and their mitigation.
3. The tests plan and associated results used to verify and validate the correct functionality of all modes of the safety-related capabilities of the product with the component refreshed.
4. Identification of any changes in training, test equipment, or maintenance required for the continued safe operation of the product.
Paragraph (b) addresses the products that are designed in accordance with part 236, subparts A through G, not in service at present but which will be in the developmental stage or completely developed prior to publication of this rule. The Standards Task Force prior to publication of the NPRM felt that these products ought to be excluded from the requirements of subpart H upon notification to FRA by 60 days after publication of the rule, if the product were placed in service by 3 years after publication of the final rule. FRA agrees that, at least for products that will be placed in service within three years of issuing this rule, it will be too costly for the railroads and suppliers to re-do work and analysis for a product on which development efforts have already begun. Similarly, it would be unfair to subject later implementations of such technology to the requirements of subpart H. In addition, FRA believes that railroads ought to be given the option to have products which are excluded made subject to subpart H by submitting a PSP and otherwise complying with subpart H. FRA has therefore adopted a provision providing this option.
Paragraph (c) addresses the exclusion of existing and future deployments of existing office systems technology. Currently, some railroads employ these dispatch systems as part of their existing signal and train control systems. These existing systems have been implemented voluntarily to enhance productivity and have proven to provide a reasonably high level of safety, reliability, and functionality. It would be a tremendous burden on the rail industry to apply subpart H to this technology and, in the case of smaller railroads, might discourage its use. The Standards Task Force recommended at the NPRM stage that a subsystem or component of an office system must comply with subpart H if it performs safety-critical functions within a new or next-generation signal and train control system. FRA agrees with this recommendation and further feels that this requirement assures the safe performance of the system.
Paragraph (d) establishes requirements for modifications of excluded products. At some point changes to excluded products qualified as significant enough to require the safety assurance processes of subpart H to be followed. This point exists when a change results in degradation of safety or in a material increase in safety-critical functionality. FRA received a comment to the NPRM inquiring whether product modifications caused by implementation details might cause products that were previously excluded from subpart H to be covered by subpart H requirements. FRA believes that modifications caused by implementation details will not necessarily cause the product to become subject to subpart H. These types of implementation modifications will be minor in nature and be the result of site specific physical constraints. FRA expects that implementation modifications that will result in a degradation of safety or a material increase in safety-critical functionality, like a change in executive software, will cause the product to be subject to subpart H and its requirements.
Paragraph (e) clarifies the application of subparts A through G to products excluded by this section.
This section describes the railroad's requirements for notifying FRA of its preparation of a PSP to ensure compliance with procedures established in the RSPP and the requirements of this subpart.
Paragraph (a) establishes a requirement for preparation of a PSP for each product covered by this subpart, and discusses the circumstances under which a joint PSP must be prepared. A joint PSP must be prepared when (1) the territory on which a product covered by the subpart is normally subject to joint operations, or is operated upon by more than one railroad; and (2) the PSP involves a change in the method of operations. “Normally subject to joint operations” is intended to mean any territory over which trains are regularly operated by more than one railroad. FRA does not intend to require a joint PSP for territory over which trains are re-routed on an emergency basis, unless there are other, scheduled trains conducted over this territory by more than one railroad. Railroads have expressed concern that this standard may be too restrictive if it includes any territory over which more than one railroad has operating rights. However, where a railroad has operating rights over a territory where a new train control system will be installed, that
FRA invited comments specifically addressing this issue, and received comments on the subject. Commenters seemed concerned with having a clear distinction between situations where a single railroad would submit a PSP, where a joint PSP would be required, or when a PSP could be used more than once. If for example, a railroad plans to install a new signal system utilizing next-generation processor-based technology, the owning railroad alone will submit a PSP. This example assumes that other railroads using the host railroad's trackage will not need specially equipped locomotives. In situations where the host railroad's installation will require train control compatibility such as specially equipped locomotives, a joint PSP will be required.
In addition to this distinction, comments explored the concept of using the same PSP for different applications or perhaps even different railroads. The concept of having a “portable” PSP was actively discussed by the Working Group both before and after publication of the NPRM. FRA can foresee circumstances where the original PSP submitted has a scope sufficient to cover a new application of the product. In those instances, a railroad is invited to submit its previously approved PSP along with a cover letter delineating its new, yet comparable use. In addition to this scenario, FRA can foresee an instance where a supplier has designed a system or product under the most challenging restrictions, anticipating various operating conditions, such that the PSP could be used for different railroads. (See, also, discussion of “generalizability,” above.)
In paragraph (b), FRA establishes a two-tiered approach where some products require an informational filing, while others will necessitate full FRA review and approval by petition. The railroad must submit a petition for approval only when installation of new or next-generation train control systems is involved. During the course of its deliberations, prior to issuance of the NPRM, the Standards Task Force developed a matrix of railroad actions regarding processor-based signal and train control systems and the level of FRA scrutiny that ought to be required. Eventually, the group whittled this matrix down to three situations for which the railroad must petition the FRA for approval. These were: (1) Any installation of a new or next-generation train control system; (2) any replacement of an existing PTC system with a new or next-generation train control system, and (3) any replacement of an existing PTC system with an existing PTC system. All other situations would require an informational filing, subject to the procedures proposed in § 236.913(e). The Standards Task Force recommended to the Working Group at the NPRM stage that existing processor-based train control systems should be subject to the requirements of § 236.911, and the recommendation was reflected in RSAC's recommendation to FRA, so the third situation was no longer considered subject to petition procedures. Also, since the second situation is a subset of the first, only one situation remains for which a petition for FRA approval is required. FRA agrees with the RSAC recommendation and the NPRM provided, that review and approval is required for all installations involving new or next-generation train control systems; mere informational filings will not be sufficient in this case. FRA sought comments specifically addressing when petitions should be required in lieu of informational filings but no comments were submitted. The rule language remains the same. In addition, some changes requiring a PSP are most appropriately combined with modifications made in accordance with part 235. Any product change or implementation needs an informational filing at a minimum. Paragraph (b) also states that some issues may be addressed through FRA's waiver process in part 211.
Paragraph (c) specifies procedures for submitting informational filings. Informational filings are less formal and detailed than full petitions for approval, and FRA will in most instances merely audit to determine whether the railroad has followed the requirements established in subpart H and the railroad's RSPP. Since this process is expected to be less complicated and formal than a full petition for approval review, FRA anticipates being able to respond within 60 days. The railroad must identify where the PSP is physically located since FRA may want to inspect it during normal business hours. This might alleviate any FRA concerns, negating the need for treating the informational filing as a petition for approval. FRA included in the NPRM general criteria for situations in which FRA will require an informational filing to be upgraded to a full petition for approval. That criteria has been carried forward to this final rule. FRA believes these filings will be upgraded only for good cause, and gives examples of what will be considered good cause. Although FRA invited comment regarding the issue of good cause, no comments were submitted addressing the subject.
Paragraph (d) addresses requirements for petitions for approval. FRA classifies petitions for approval into two categories: those involving prior FRA consultation (covered in paragraph (d)(1)) and those that do not (covered in paragraph (d)(2)). In this rule, FRA does not require prior consultation but attempts to accommodate railroads' often tight development and implementation schedules by getting involved early. Optimally, FRA feels it should be involved at the system design review phase of development, thereby reducing the scope of FRA review which might otherwise be required. FRA believes that a railroad's failure to involve FRA early enough in the process could potentially delay FRA approval and system implementation. This rule invites the railroad to garner government involvement at an early stage in the development of a product requiring a petition for approval or a product change for which a petition for approval is required. Paragraph (d)(1) concerns petitions for approval involving prior FRA consultation. Under this procedure, FRA issues a letter of preliminary review within 60 days of receiving the Notice of Product Development. This process allows FRA to more easily reach a decision on a petition for approval within 60 days of receipt.
Paragraph (d)(2) concerns petitions for approval which do not involve prior FRA consultation. When railroads wait to involve FRA until they are approaching use of the system in revenue service, paragraph (d)(2)(iii) specifies that the agency will attempt to act on the petition within 180 days of filing. If FRA does not act on the petition within 180 days it will notify the petitioner as to why the petition remains pending. FRA believes that railroads should be encouraged to take necessary safety assurance steps to cure a petition of any apparent inadequacies before FRA requires a third party review. FRA received comments addressing the possibility of a conditional approval pending results of non-critical data inputs or in the alternative shorter FRA response periods for less complex products or changes. FRA suggests that railroads indicate a targeted date and the relevance of that date when making their filing so that FRA knows immediate action is needed. FRA will endeavor to meet requested dates, since
Paragraph (e)(1) establishes a role for product users in the review process. FRA believes comments from employees who will be working with products covered by this subpart will provide useful safety insight. Accordingly, FRA will consider them to the degree practicable.
Paragraph (e)(2) requires that FRA provide notice to the public of pending filings and petitions. This method of notice will allow local, national and international labor organizations to get involved with issues of interest. FRA believes that information provided by organizations whose members work directly with or will work directly with products subject to this subpart is important. FRA will consider any information it receives to the degree practicable, when involved in the review of informational filings and petitions for approval.
Paragraph (f) allows railroads to file petitions for approval prior to field testing and validation of the product. The petition for approval process must provide information necessary to allow FRA involvement in monitoring of the test program. FRA encourages railroads to avail themselves of this provision so as to provide FRA with notice of the product development earlier rather than later in the development process.
Paragraph (g) describes the approval process of a PSP. A PSP gains approval when the requirements listed in paragraph (g)(1) have been met.
Paragraph (g)(2) lists the factors which FRA will consider when evaluating the railroad's risk assessment. As the Standards Task Force toiled with this subject (pre-NPRM) it was felt that some guidance or acknowledgment of what factors would be considered by FRA during this process should be spelled out. Paragraph (g)(2)(i) explains that FRA will consider the product's compliance with recognized standards in product development. Factors such as the use of recognized standards in system design and safety analyses, accepted methods in risk estimates and proven safety records for proposed products will tend to simplify FRA's review. Paragraph (g)(2)(iii) states that FRA will consider as a factor the overall complexity and novelty of the product design. Railroads have indicated that this factor appears to be a barrier to innovation. Although FRA invited comment on this subject, no comments were submitted. Paragraph (g)(2)(vii) lists as a factor whether or not the same risk assessment method was used for both the previous condition and the risk calculation for the proposed product. FRA feels that this is important because risk assessment methods vary widely in nature. A common characteristic is their ability to describe relative differences in risk associated with changes in the environment, rather than predicting absolute values for future safety performance. However, railroads have indicated their belief that so long as the methods are acceptable to FRA, it should not matter whether a different one was used. FRA specifically sought comments addressing whether factor (vii) ought to be included as a factor either in the PSP approval decision or the decision to recommend a third-party assessment. No comments were submitted on these subjects.
Paragraph (g)(3) discusses additional factors FRA considers in its decision concerning use of the product by the railroad. Paragraph (g)(4) indicates that FRA is not limited to either granting or denying a petition for approval as is, but rather may approve it with certain conditions. Paragraph (g)(5) includes the provision that FRA be able to reopen consideration of a petition for cause and sets forth potential reasons for reopening, including such circumstances as credible allegation of error or fraud, assumptions determined to be invalid as a result of in-service experience, or one or more unsafe events calling into question the safety analysis underlying the approval.
Paragraph (h) establishes factors considered by FRA when requiring a third-party assessment and specifies who qualifies as an independent third party. FRA received a general comment suggesting that third-party assessments be required only once for each product, no matter where implemented. The answer to this question will likely be determined by whether the PSP itself has been structured to foster “portability.”
Paragraph (h)(1) lists those factors recommended by RSAC at the NPRM stage and adopted by FRA, many of which are the same used in deciding whether to approve a PSP. This list provides guidance to product developers for criteria they would be expected to meet to avoid the prospect of a third party assessment.
Paragraph (h)(2) defines the term “independent third party” as initially adopted by FRA in the NPRM. FRA may maintain a roster of recognized technically competent entities, as a service to railroads selecting reviewers under this subpart. Interested parties may submit credentials to the Associate Administrator for Safety for consideration to be included in such a roster. Prior to publication of the NPRM, railroads indicated concern that the definition is unduly restrictive because it limits independent third parties to ones “compensated by” the railroad or an association on behalf of one or more railroads that is independent of the supplier of the product. FRA believes that requiring the railroad to compensate a third party will heighten the railroad's interest in obtaining a quality analysis and will avoid ambiguous supplier/third-party relationships that could indicate possible conflicts of interest. FRA sought comment on this subject but received none.
Paragraph (h)(3) explains that the minimum requirements of a third party audit are outlined in Appendix D and that FRA limits the scope of the assessment to areas of the safety validation and verification which deserve scrutiny. This will allow reviewers to focus on areas of greatest safety concern and eliminate any unnecessary expense to the railroad. In order to limit the number of third-party assessments, FRA first strives to inform the railroad as to what portions of a submitted PSP could be amended to avoid the necessity and expense of a third-party assessment altogether.
Paragraph (i) addresses handling of PSP amendments. The procedures which apply to notifying FRA of initial PSPs also apply to PSP amendments. However, PSP amendments may take effect immediately if they are necessary in order to mitigate risk, and if they affect the safety-critical functionality of the product. During discussions for the NPRM, the Standards Task Force recommended to the Working Group that a more informal process is warranted in order to alleviate safety concerns which are discovered after FRA is notified of the initial PSP. Discussions prior to issuance of the NPRM included consideration of a rule which would allow for all PSP amendments to be handled via informational filing; however, FRA felt that the same concerns which apply to initial filing (either as a petition or as an informational filing) should apply to the PSP amendment. No comments were submitted addressing this section and the rule remains the same.
Paragraph (j) identifies procedures for obtaining FRA approval to field test a subpart H product. FRA approval is necessary where the railroad seeks to test any product for which it would otherwise be required to seek a waiver for exemption of specific part 236 regulations. For instance, when field testing of the product will involve direct interface with train crew members, there may be a requirement for some control mechanisms to be in place. Also,
This section establishes minimum requirements, in addition to those found in the PSP, for product implementation and operation.
Paragraph (a) establishes requirements relating to when products may be implemented and used in revenue service. Paragraph (a)(1) discusses the standard for products which do not require FRA approval, but rather an informational filing. Paragraph (a)(2) addresses the standard for products which require that a petition for approval be submitted to FRA for approval. Such products shall not be used in revenue service prior to FRA approval. Paragraph (a)(3) excepts from the requirements of paragraphs (a)(1) and (a)(2) those products for which an informational filing had been filed initially, then FRA elected after implementation to treat the filing as a petition for approval. In the case where FRA chooses to treat an informational filing as a petition for approval after implementation, “for cause” is not intended to be restricted to the same interpretation given in § 236.913(c) for “good cause.” FRA envisions that cause for review after implementation will more likely be related to actual in-service performance than initial design safety considerations.
Paragraph (b) establishes a requirement that railroads will not exceed maximum volumes, speeds, or any other parameter limit provided for in the PSP. On the other hand, a PSP could be based upon speed/volume parameters that are broader than the intended initial application, so long as the full range of sensitivity analyses are included in the supporting risk assessment. FRA feels this requirement will help ensure that comprehensive product risk assessments are performed before products are implemented. This paragraph also makes allowance for amendment of PSPs even after implementation. Railroads indicated they will need the ability to amend PSPs to correct initial assumptions after implementation. Furthermore, railroads feel that if operating conditions for which a product was designed are no longer applicable and safety levels have not been reduced, the necessary corresponding PSP amendments should be allowed. FRA agrees that a mechanism must be available to handle this kind of circumstance, but of course the degree of scrutiny afforded the amendment would depend upon the specific risk profile of the proposed change.
Paragraph (c) requires that each railroad ensure the integrity of a processor-based system not be compromised, by prohibiting the normal functioning of such system to be interfered with by testing or otherwise without first taking measures to provide for the safety of train movements, roadway workers, and on-track equipment that depend on the normal functioning of the system. This provision parallels current § 236.4, which applies to all devices. By requiring this paragraph, FRA merely intends to clarify that the standard in current § 236.4 applies to subpart H products.
Paragraph (d) requires that, in the event of the failure of a component essential to the safety of a processor-based system to perform as intended, the cause be identified and corrective action taken without undue delay. The paragraph also requires that until repair is completed, the railroad be required to take appropriate measures to assure the safety of train movements, roadway workers, and on-track equipment. This requirement mirrors current requirement § 236.11, which applies to all signal system components.
Paragraph (a) identifies the documents and records the railroad is required to maintain at a designated office on the railroad. All documents and records must be available for FRA inspection and copying during normal business hours. The following records are required to be maintained for the life-cycle of the product. First, the railroad needs to maintain adequate documentation to demonstrate that the PSP meets the safety requirements of the RSPP and applicable standards in this subpart, including the risk assessment. The risk assessment must contain all initial assumptions for the system that are listed in paragraph (i) of Appendix B—Risk Assessment Criteria. Second, the product Operations and Maintenance Manual, as described in § 236.919, needs to be kept for the life-cycle of the product. The railroads are also required to maintain training records which designate persons who are qualified under § 236.923(b); these records will be kept until new designations are recorded or for at least one year after such person(s) leave applicable service. Paragraph (a) also requires that implementation, maintenance, inspection, and testing records as described in § 236.907(a)(18)(ii) be recorded as prescribed in § 236.110.
During Working Group discussions, railroads have indicated concerns that the product life-cycle is too long a term to keep the data proving PSP compliance with the RSPP. FRA is sympathetic to this concern but wishes to ensure that all records relevant to the current configuration and operation of the system remain available. FRA sought comments specifically concerning this issue, but received none. FRA has slightly revised the language to clarify that the timing of retention of training records is governed by § 236.923(b).
After the product is placed in service, paragraph (b) requires the railroad to maintain a database of safety-relevant hazards as described in § 236.907(a)(6), which occur or are discovered on the product. This database information shall be available for inspection and replication by FRA and FRA certified state inspectors, during normal business hours. Paragraph (b) also provides the procedure which must be followed if the frequency of occurrence for a safety-relevant hazard exceeds the threshold value provided in its PSP. This procedure involves taking immediate steps to reduce the frequency of the hazard and report the hazard occurrence to FRA. FRA realizes the scope and
The reporting requirement of § 236.917(b) is not intended to excuse lack of compliance with current reporting requirements of part 233. In the case of a false proceed signal indication, FRA would not expect the railroad to wait for the frequency of such occurrences to exceed the threshold reporting level assigned in the hazard log. Rather, current § 233.7 requires
FRA notes that the Standards Task Force recommended to the Working Group and FRA agreed that railroads take prompt countermeasures to reduce only the frequency of the safety-relevant hazard; this recommendation was incorporated in RSAC's recommendation to FRA in the NPRM. There may be situations where reducing the severity of such hazards will suffice for an equivalent reduction in risk. For example, reducing operating speed may not reduce the frequency of certain hazards involving safety-critical products, but it would in most cases reduce the severity of such hazards. FRA invited comments specifically addressing this issue, and received a comment suggesting that the rule retain its flexibility in risk management methodology. Another comment contended that severity may be hard to predict, since there will likely not be enough incidents to make an accurate prediction based on an average. The commenter agreed with FRA that there may be instances where severity in any given incident may be higher than expected. The rule is unchanged from the NPRM.
During Working Group discussions (pre-NPRM) the concern emerged that 15 days is not enough time to be held to report any inconsistency to FRA, especially when traditional postal service is used to deliver the report. As such, railroads proposed that they be given 30 days to report any inconsistencies. The NPRM permitted railroads to fax or e-mail reports of inconsistencies, which would relieve concerns about traditional postal service. FRA currently allows faxing or e-mailing of reports required by §§ 233.7 and 234.9, involving signal failure and grade crossing signal system failure, respectively. Commenters were invited to address this issue, and FRA received one comment concluding that 15 days is sufficient. FRA has amended the rule text to explicitly provide for reporting in writing by mail, facsimile, e-mail, messenger, or hand delivery. Documents that are hand delivered to FRA must not be enclosed in an envelope, as all envelopes are required to be routed through the DOT mail room.
This section requires that each railroad develop a manual covering the requirements for the installation, periodic maintenance and testing, modification, and repair for its processor-based signal and train control systems. At the NPRM stage the Standards Task Force recommended to the Working Group that railroad employees working with safety-critical products in the field have a manual with complete and current information for installation, maintenance, repair, modification, inspection, and testing of the product being serviced; the recommendation was incorporated in RSAC's recommendation to FRA and adopted by FRA in the NPRM. FRA received several comments generally addressing this section. Commenters expressed concern about the significant volume of paper resulting from this requirement. Comments provided alternatives to a written manual such as a computer disc or other electronic format. FRA acknowledges that an electronic format is an appropriate medium for such a manual. Electronic copies of the manual should be maintained in the same manner as other electronic records, and the manual should be included in the railroad's configuration management plan (with the master copy and dated amendments carefully maintained so that the status of instructions to the field as of any given date can be readily determined).
Paragraph (a) works with §§ 236.905 and 236.907 and requires that all specified documentation contained in the PSP necessary for the installation, repair, modification and testing of a product be placed in an Operations and Maintenance Manual for that product and be made available to both persons required to perform such tasks and to FRA.
Paragraph (b) requires that plans necessary for proper maintenance and testing of products be correct, legible, and available where such systems are deployed or maintained. The paragraph also requires that plans identify the current version of software installed, revisions, and revision dates.
Paragraph (c) requires that the Operations and Maintenance Manual identify the hardware, software, and firmware revisions in accordance with the configuration management requirements specified in the PSP.
Paragraph (d) requires that safety-critical components contained in processor-based systems, including spare equipment, be identified, replaced, handled, and repaired in accordance with the configuration management requirements specified in the PSP.
This section sets forth the general requirements of an employer's training and qualification programs related to safety-critical processor-based signal and train control products. This section works in conjunction with § 236.907, which requires the PSP to provide a description of the specific training necessary to ensure the safe installation, implementation, operation, maintenance, repair, inspection, testing, and modification of the product. This section does not restrict the employer from adopting additional or more stringent training requirements. The training program takes on particular importance with respect to safety-critical processor-based signal and train control products, and in particular, processor-based train control products, because the railroad industry's workforce generally does not have thorough knowledge of the operation of such equipment and appropriate practices for its operation and maintenance. FRA believes employee training and qualification on how to properly and safely perform assigned duties are crucial to maintaining safe railroad equipment and a safe workplace.
FRA believes that many benefits will be gained from the railroads' investment in a comprehensive training program. The quality of inspections will improve, which will result in fewer instances of defective equipment in revenue service and increased operational safety. Under an effective training program: Equipment conditions that require maintenance attention are more likely to be discovered and repairs can be completed safely and efficiently; trouble-shooting will more likely take less time; and maintenance will more likely be completed correctly the first time, resulting in increased safety and decreased costs.
The program will provide training for persons whose duties include inspecting, testing, maintaining or repairing elements of a railroad's safety-critical processor-based signal and train control systems, including central
FRA received one comment addressing the cost of training to the railroads. This commenter believes the costs are twofold, comprised of the actual cost of training and the cost to the industry over time as computer-trained technicians leave the industry for better paying jobs with better hours. FRA believes the actual cost of training is inescapable. The burden of the initial training of the work force will be eased as employees and contractors become familiar with the equipment on which they are working. FRA believes that refresher training is less costly than initial training, and thus will ease some of the financial burden on railroads and contractors. In addition, FRA believes any projected costs based on trained technicians leaving the industry is speculative. The possibility that employees may leave any profession is always present and difficult to quantify. FRA believes the possibility of attrition is certainly no disincentive to adequately train employees for their current jobs.
Paragraph (a) establishes the general requirement for when a training program is necessary and who must be trained. Training programs must meet the minimum requirements listed in §§ 236.923 through 236.929, as appropriate, and any more stringent requirements in the PSP for the product.
FRA received a comment expressing concern that each railroad would have the responsibility of training railroad employees, contractor employees, and presumably supplier personnel. The commenter reasoned that such a task would be impossible for any given railroad. FRA wants to clarify the intent of this section. Railroads are responsible for training their own employees. Contractors, including suppliers whose employees are performing the duties described in this section, are also responsible for training their own employees. Yet, FRA is not requiring that railroads provide training for contractor employees. FRA has changed the language of the section to substitute the term “employer” for the term “railroad” to more clearly indicate that employers are responsible for having their employees who perform work covered by this section trained and qualified. If FRA finds untrained contractors performing work that requires training, both the contractor and railroad may potentially be subject to civil penalty enforcement activity. Railroads should be seeking assurance that contractors have training programs that comply with this section and that the contractors are utilizing trained and qualified personnel to perform work on a railroad's processor-based safety-critical signal and train control products. If FRA finds untrained contractor employees conducting work which requires training, FRA can proceed against both the contractor and the railroad. If the railroad has placed a clear contractual responsibility on the provider of services to train personnel and maintain appropriate records, FRA would normally proceed first against the contractor. In any event, FRA would expect to see prompt corrective action.
Paragraph (b) establishes the general requirement that the persons cited in paragraph (a) must be trained to the appropriate degree to ensure that they have the necessary knowledge and skills to effectively complete their duties related to operation and maintenance of products.
This section sets forth specific parameters for training railroad employees and contractor employees to assure they have the necessary knowledge and skills to effectively complete their duties as related to safety-critical products and the functioning of advanced train control systems. FRA has changed the language of the section to substitute the term “employer” for the term “railroad” to indicate that employers, whether railroads or contractors, are responsible for complying with this section. This section explains that the functions performed by an individual will dictate what type of training that person should receive related to the railroad's processor-based signal and train control system. For example, a person that operates a train would not require training on how to inspect, test, and maintain the system equipment unless the person were also assigned to perform those tasks.
The intent of this section is to ensure that employees who work with products covered by this rule, including contractors, know how to keep them operating safely. The final rule grants the employer flexibility to focus and provide training that is needed in order to complete a specific task. However, the rule is designed to prevent the employer from using under-trained and unqualified people to perform safety-critical tasks.
This section describes that the training and qualification programs specified in § 236.919 must include a minimum group of identified requirements. These minimum requirements will be described in the PSP. This required training is for railroad employees and contractor employees to assure they have the necessary knowledge and skills to effectively complete their duties related to processor-based signal and train control systems.
Paragraphs (a)(2) and (a)(3) provide that the employer will identify inspection, testing, maintenance, repairing, dispatching, and operating tasks for signal and train control equipment and develop written procedures for performance of those tasks. Paragraph (a)(4) requires that the employer identify additional knowledge and skills above those required for basic job performance necessary to perform each task. The point here is that work situations often present unexpected challenges, and employees who understand the context within which the job is to be done will be better able to respond with actions that preserve safety. Further, the specific requirements of the job will be better understood; and requirements that are better understood are more likely to be adhered to. An example is so-called “gap training” for employees expected to work on electronic systems. Employees need to understand in at least a general way how their duties fit into the larger program for maintaining safety on a railroad. If they lack a basic understanding of the functioning of the systems they are working on, they are more likely to make a mistake in a situation where instructions are ambiguous and where the unusual nature of the problem prompts discovery of a void in the instruction set. Well informed employees will be less likely to free-lance trouble shooting; and, incidentally, they should also be of greater value in assisting with trouble shooting (an economic benefit which should, by itself, offset the cost of the requirement).
Paragraph (a)(5) requires that the employer develop a training curriculum which includes either classroom, hands-on, or other formally-structured training designed to impart the knowledge and skills necessary to perform each task.
FRA received a comment suggesting that the rule text assumed unlimited budget allocation for training and suggested that the training curriculum should be designed by the railroad in consultation with the manufacturer of the product, utilizing training materials and manuals prepared by the vendor.
Paragraph (a)(6) establishes the requirement that all persons subject to training requirements and their direct supervisors must successfully complete the training curriculum and pass an examination for the tasks for which they are responsible. For example, a person who operates a train would not require training on how to inspect, test, or maintain the equipment unless the person were assigned to also perform those tasks. Generally, appropriate training must be given to each of these employees prior to task assignment; however, an employee may be allowed to perform a task for which that person has not received the appropriate training only if the employees do so under the direct, on-site supervision of a qualified person. Direct supervisor is intended to mean the immediate, first-level supervisor to whom the employee reports.
FRA received comments concerning the training of direct supervisors. Commenters were concerned that direct supervisors would need to complete the same training as those who install, maintain, repair, modify, inspect, and test next generation products. The Working Group considered this comment and felt that the content of supervisor training would depend upon an analysis of the supervisor's job, including his or her specific tasks. FRA agrees with this assessment and adopted the Working Group's recommendation. The identification of training goals and the task analysis required in paragraphs (a)(1) and (2) includes management goals and tasks. Managers and supervisors must be trained to carry out the functions their duties require. If a direct supervisor is in a position where he or she may have to fulfill the responsibilities or duties of a subordinate, he or she must have the requisite knowledge and training to do so. If, however, a manager or supervisor will likely never need to fulfill the duties of a subordinate, and that person is not expected to provide technical oversight for certain functions, he or she may not need to be trained on those functions. This requirement is designed to ensure that supervisors have the requisite knowledge, training, and familiarity with the duties of their subordinates such that they can competently supervise the workforce. FRA is changing the phrase “the training curriculum” to “a training curriculum” in the text of paragraph (a)(6), in order to prevent further confusion and clarify FRA's intent.
Paragraph (a)(7) requires that periodic refresher training be conducted at intervals specified in the PSP. This periodic training must include either classroom, hands-on, computer-based training, or other formally-structured training in order that railroad employees and contractor employees maintain the knowledge and skills necessary to safely perform their assigned tasks.
Paragraph (a)(8) establishes a requirement to compare actual and desired success rates for the examination. In the NPRM, FRA proposed evaluating the effectiveness of a training program by comparing the desired and actual success rates. Railroads have expressed concern about this particular requirement, during Working Group discussion and commenters were invited to address this issue. FRA received no comment. FRA believes that by stating the requirement in such a manner, it may have inadequately described the underlying purpose of the proposed rule. The objective of this requirement is twofold. The first is to determine if the training program materials and curriculum are imparting the specific skills, knowledge, and abilities to accomplish the stated goals of the training program. The second is to determine if the stated goals of the training program reflect the correct, and current, products and operations.
Over time, changes in railroad products and operations may result in differences between the original defined goals and tasks based on the original products and operations, and goals and tasks based on the current products and operations. Similarly, over time the effectiveness of the training process may change as a result of instructional methods and student skill levels. Changes in training may be necessary as a result. Ongoing, regular verification of the results of the training process is required to ensure that the training program materials and curriculum are relevant, the learning objectives are being met, and the necessary skills, knowledge and ability are actually being imparted. Without regular feedback, verification and validation (and if necessary, adjustments, to ensure the necessary relevancy and effectiveness) cannot occur. In an effort to more accurately reflect these objectives, FRA has revised § 236.923(a)(8).
Paragraph (b) provides that the employers must maintain records which designate persons who are qualified under this section. These records must be kept until new designations are recorded or for at least one year after such person(s) leave applicable service, and must be available for FRA inspection and copying.
FRA received a comment addressing the maintenance of training records. The comment expresses concern regarding the railroad's ability to maintain records of employees other than railroad employees who may be conducting work that is covered by this section on a particular railroad. As previously mentioned in the general training discussion, railroads are not being required to maintain training records for every person covered by this section who may potentially work on their property. A railroad's contractor must maintain records on contractor employees who perform work covered by this section. FRA expects to have access to the training records of contractor employees whose work functions are covered by the training requirements of this section. Early pre-NPRM discussions by the Standards Task Force involved railroads addressing these concerns when contracting. In the final rule FRA has made explicit the requirement of railroad contractors to maintain records under this section. If FRA cannot get access to such records, the railroad and contractor or supplier may be subject to civil penalty enforcement activity.
This section explains the training that must be provided to employees responsible for issuing or communicating mandatory directives. This training must include instructions concerning the interface between computer-aided dispatching systems and processor-based train control systems as applicable to the safe movement of trains and other on-track equipment. In addition, the training must include operating rules that pertain to the train control system, including the provision for moving unequipped trains and trains on which the train control system has failed or been cut out en route.
This section sets forth the requirements for instructions on control of trains and other on-track equipment when a train control system fails. It also includes periodic practical exercises or simulations and operational testing under part 217 to assure that personnel are capable of providing for safe operations under alternative operation methods.
This section specifies minimum training requirements for locomotive engineers and other operating personnel who interact with processor-based train control systems. “Other operating personnel” is intended to refer to on-board train and engine crew members (
Paragraph (b) states that with respect to certified locomotive engineers, the training requirements of this section must be integrated into the training requirements of 49 CFR part 240.
Paragraph (c) addresses requirements for use of a train control system to effect full automatic operation, as defined in § 236.903. FRA acknowledges that this rule is not designed to address all of the various safety issues which accompany full automatic operation (although it by no means discourages their development and implementation); however, insofar as skills maintenance of the operator is concerned, the rule offers the standards in this paragraph.
Paragraph (c)(1) establishes the requirement that the PSP must identify all safety hazards to be mitigated by the locomotive engineer.
Paragraph (c)(2) concerns required areas of skills maintenance training. The NPRM provided that training requirements can be worked out individually among the railroad, its labor representative(s), and the FRA. FRA continues to support this reasoning andnotesthat in all cases, the PSP must define the appropriate training intervals for these tasks.
FRA received one general comment on this section. The commenter appears to be seeking clarification that each railroad will have the flexibility to develop its locomotive engineer training program to be applicable to the particular system being installed by that railroad. FRA agrees that there is no one curriculum across the board that will generally satisfy the locomotive engineer training requirements. As with the general training requirements, the requisite task analysis will be specific to the functions of the system or systems of each railroad. Accordingly, the resulting training curriculum will correspond with the tasks or functions necessary for that particular system.
This section requires the railroad to incorporate appropriate training in the program of instruction required under part 214, subpart C, Roadway Worker Protection. This training is designed to provide instruction for workers who obtain protection for roadway work groups or themselves and will specifically include instruction to ensure an understanding of the role of a processor-based train control system in establishing protection for workers and their equipment, whether at a work zone or while moving on track between work locations. Also, this section requires that training include recognition of processor-based train control equipment on the wayside and how to avoid interference with its proper functioning.
FRA received two comments addressing this section. One comment echoed previous concerns regarding the locomotive engineer training program. The commenter seemed to be seeking assurance that each railroad's roadway worker training program would be developed to apply specifically to its processor-based system. As noted earlier, FRA is not seeking compliance with any general curriculum. The required task analysis will tailor each program to the needs of the particular system to which it applies.
The second comment regarding this section suggested adding rule language to address instruction for roadway workers in case of abnormal operations. The commenter considers abnormal operations instances where there is a loss of protection provided by the processor-based system. This comment was discussed during the final meeting addressing the rule. The Working Group members referenced the language in “236.925(c) regarding control office personnel, as possible language to use for the added requirement. FRA agrees with the commenter. FRA assumes that a good task analysis would include procedures and training on procedures for system failures. Roadway workers are uniquely situated out on the right-of-way at risk of being struck by trains and on-track equipment. Given the potential for exposure to extreme peril, FRA believes specifying training and periodic drills on that training is worthwhile. FRA is adding to paragraph (b) an additional requirement numbered paragraph (b)(3) duplicating, in part, the language of § 236.925(c).
Appendix B provides a set of criteria for performing risk assessments for products sought to be implemented on a railroad. During early deliberations, prior to issuance of the NPRM, suppliers indicated concern for flexibility in performing risk assessments. FRA recognizes this concern, yet must balance it against the need for uniformity in the conduct of risk assessments performed under this subpart. This need for uniformity across all products covered by subpart H is necessary when a performance standard is sought to be used. FRA has sought to balance these two seemingly competing concerns by establishing a requirement that the risk assessment criteria be followed, but allowing for other approaches to be used if FRA agrees they are equally suitable.
Paragraph (a) addresses the life-cycle term for purposes of the risk assessment. FRA believes new signal and train control systems will be in place for at least 25 years, based on the life-cycles of current systems. Over time, these systems will be modified from their original design. FRA is concerned that subsequent modifications to a product might not conform with the product's original design philosophy. The original designers of products covered by this subpart could likely be unavailable after several years of operation of the product. FRA feels that requiring an assumption of a 25-year life-cycle for products will adequately address this problem. FRA believes this proposed criterion will aid the quality of risk assessments conducted per this subpart by forcing product designers and users to consider long-term effects of operation. However, FRA feels such a criterion would not be applicable if, for instance, the railroad limited the product's term of proposed use. In such case, FRA would only be interested in the projected risks over the projected life-cycle, even if less than 25 years.
Paragraph (a) also addresses the scope of the risk assessment for the risk calculation of the proposed product. The assessment must measure the accumulated residual risk of a signal and train control system, after all mitigating measures have been
Paragraph (b) addresses the risks connected with the interaction of product components. Each signal and train control system covered by this subpart is considered to be subject to hazards associated with failure of individual components, as well as hazards associated with improper interaction of those components. FRA is aware that many unanticipated computer system faults have arisen from incomplete analysis of how components will interact. This problem is of vital importance when safety-critical systems are involved, such as those targeted by subpart H.
Paragraph (c) addresses how the previous condition is computed. The requirement mandates the identification of each subsystem and component in the previous condition and estimation of an MTTHE value for each of those subsystems and components. FRA feels that the MTTHE is an adequate measure of the reliability and safety of those subsystems and components, and it facilitates the comparison of subsystems and components which are to be substituted on a one-for-one basis (see § 236.909(d)). In some cases, current safety data for the particular territory on which the product is proposed to be implemented may be used to determine MTTHE estimates. The purpose of this provision is to require railroads to produce the basis for any previous condition calculations.
Paragraphs (d) and (e) deal with some types of risks which must be considered when performing the risk assessment. FRA believes that the listed items are relevant to any risk assessment of signal and train control systems and thus ought to be considered. However, there may exist situations when one or more of the categories of risk are not relevant, such as when a system does not involve any wayside subsystems or components. In such case, FRA would obviously not require consideration of such risks, but would expect the risk assessment to briefly explain why.
Paragraph (f)(1) addresses how MTTHE figures are calculated at the subsystem and component level. FRA feels that MTTHE should be calculated for each integrated hardware/software subsystem and component. FRA expects that quantitative MTTHE calculation methods will be used where it is appropriate and when sufficient data is available. For factors such as non-processor based systems which are connected to processor-based subsystems, software subsystems/components, and human factors, FRA realizes that quantitative MTTHE values may be difficult to assign. In these cases, the rule allows qualitative values to be used or estimated. Furthermore, for all human-machine interface components/subsystems, appropriate MTTHE estimates must be assigned. FRA feels this is necessary because an otherwise reliable product which encourages human errors could result in a dramatic degradation of safety. FRA believes this risk should be identified in the risk assessment.
Paragraph (f)(2) addresses the MTTHE estimates. The rule requires that all MTTHE estimates be made with a high degree of confidence, and relate to scientific analysis or expert opinion based on documented qualitative analysis. This paragraph also indicates the railroad must devise a compliance process which ensures that the analysis is valid under actual operating conditions. Since the relevant Standards Task Force recommendation which was the basis for the NPRM, did not provide any criteria as to how such a compliance process would be expected to operate, FRA invited comments addressing this issue. No comments were submitted. FRA has determined that each railroad will determine its own compliance process and the Appendix will remain the same.
Paragraph (g) establishes criteria for calculation of MTTHE values for non-processor-based components which are part of a processor-based system or subsystem. FRA believes that it will be common for future systems to combine processor-based components with other components, such as relay-based components. Thus, failures of non-processor-based components must be considered when determining the safety of the total system.
Paragraph (h) establishes a requirement to document all assumptions made for purposes of the risk assessment. FRA does not intend to hold the railroads to directly document these assumptions, but rather to be responsible for their documentation and production if so requested by FRA. FRA imagines that suppliers will in most cases perform the actual documenting task.
Paragraph (h)(1) addresses documentation of assumptions concerning reliability and availability of mechanical, electric, and electronic components. In order to assure FRA that risk assessments will be performed diligently, FRA requires documentation of assumptions. FRA envisions sampling and reviewing fundamental assumptions both prior to product implementation and after operation for some time. FRA intends for railroads to confirm the validity of initial risk assessment assumptions by comparing them to actual in-service data. FRA is aware that mechanical and electronic component failure rates and times to repair are easily quantified data, and usually are kept as part of the logistical tracking and maintenance management of a railroad.
Paragraph (h)(2) addresses assumptions regarding human performance. Assumptions about human performance should consider all the categories of unsafe acts as described by Reason (1990). Some methods to assess human reliability, such as the Human Cognitive Reliability model (Kumamoto and Henley, 1996, pp. 506-508), assume that unsafe acts of certain types (
Paragraph (h)(3) discusses risk assessment assumptions pertaining to software defects. FRA believes that projected risks of software failures are
Paragraph (h)(4) establishes a requirement for the documentation of identified fault paths. Fault paths are key safety risk assumptions. Failing to identify a fault path can have the effect of making a system seem safer on paper than it actually is. When an unidentified fault path is discovered in service which leads to a previously unidentified safety-relevant hazard, the threshold for defects in the PSP is automatically exceeded, and the railroad must take mitigating measures pursuant to § 236.917(b). FRA believes it is possible that railroads will encounter previously unidentified fault paths after product implementation. The frequency of such discoveries would likely be related to the quality of the railroad's safety analysis efforts. Safety analyses of poor quality are more likely to lead to in-service discovery of unidentified fault paths. Some of those paths might lead to potential serious consequences, while others might have less serious consequences. FRA is requiring the railroads to estimate the consequences of these unidentified faults as if they would continue being detected over the twenty-five year life of the product. Each product is to be treated as though it would be in service for twenty-five years from the current date, and unidentified faults would continue to be discovered at the same rate as they had been for the greater of the previous ten years in service or the life of the product. All new products are to be treated as though they had been in service for at least six months in order to prevent an early-discovered fault path from having drastic impact.
During the December 2001 meeting of the PTC Working Group, a small team representing the various stakeholders and interested parties was assigned to review and address comments to Appendices C and D. The team met independently of the full PTC Working Group and presented its ideas and conclusions to the full PTC Working Group for consensus. The team recommended several changes for Appendix C, but suggested that Appendix D remain the same. The PTC Working Group reached consensus to adopt the recommended changes proposed by the team (but the full Committee failed to adopt the recommendations). FRA has elected to proceed with these changes because they add clarity and flexibility. The resulting changes are discussed with the provision of the appendix to which they apply.
Appendix C sets forth minimum criteria and processes for safety analyses conducted in support of RSPPs and PSPs. The intention of Appendix C is to provide safety guidelines distilled from proven design considerations. These guidelines can be translated into processes designed to ensure the safe performance of the product. The analysis required in Appendix C is designed to minimize failures that would have the potential to affect the safety of railroad operations. FRA recognizes there are limitations regarding how much safety can be achieved given technology limitations, cost, and other constraints. As recommended by the Standards Task Force, prior to the NPRM, FRA is establishing the objectives in the appendix, recognizing this principle.
Paragraph (a) discusses the purpose of this Appendix C. This appendix sets forth minimum criteria and processes for safety analyses conducted in support of RSPPs and PSPs. FRA is changing the language of the NPRM, in response to comments suggesting that FRA make clear that Appendix C is an informative annex, which does not set forth regulatory requirements. The text of paragraph (a)(1) is being revised to reference “objectives” in lieu of “requirements.”
Paragraph (b) covers safety considerations and principles which the designer must follow unless the consideration or principle does not apply to the product. In the latter case, the designer is required to state why it believes the consideration or principle does not apply. These safety considerations and principles resulted from early discussions of the Standards Task Force, publication of the NPRM, and are recognized by the industry to be recommended practices for the development of safety-critical systems. FRA believes these proven safety considerations and concepts are a necessary starting point for the development of products under subpart H. FRA received a comment suggesting that the agency maintain and provide the most recent edition of approved validation standards. This comment was discussed at the PTC Working Group meeting. FRA decided to disregard this comment because most standards are widely available and procurement does not present a major problem. In addition, most standards are copyrighted and FRA could not reproduce them for wide dissemination.
Paragraph (b)(1) discusses design considerations for normal operation of the product. FRA notes that in normal operation, the product should be designed such that human error would not cause a safety hazard. This principle recognizes that safety risks associated with human error cannot be totally eliminated by design, no matter how well-trained and skilled the operators. FRA received a comment addressing this paragraph suggesting that compliance with this objective would be impossible. The Working Group discussed and concluded that the third sentence of this provision should be changed to read, “Absence of specific operator actions or procedures will not prevent the system from operating safely.” Although no formal recommendation was made by RSAC on resolution of this issue or accepted by FRA, FRA believes that the Final Rule should include this language. FRA received an additional comment on this section requesting clarification regarding the source of what constitutes an unacceptable or undesirable hazard. The Working Group discussed including a reference to MIL-STD 882 C in the final sentence of the paragraph. FRA has concluded that including such a reference in the Final Rule is appropriate and has changed the rule accordingly.
Paragraph (b)(2) addresses design considerations dealing with systematic failure. Systematic failures or errors are those that can occur when the product is poorly developed and/or the human-machine interface is not given proper design attention. FRA received a comment expressing concern that the objective of this paragraph is an absolute and un-achievable requirement. Working Group discussions concluded that the initial sentence of the paragraph should be modified to read, “It must be shown how the product is designed to mitigate or eliminate unsafe systematic failures.” As previously noted, no formal RSAC recommendation was made to FRA. Nevertheless, FRA believes that the discussed language is useful and has added the following to the end of the suggested sentence, “the conditions which can be attributed to human error that could occur at various stages throughout product development.”
Paragraph (b)(3) addresses random failure. FRA recognizes hardware can fail when components fail due to wear and tear, overheating, harsh environmental conditions, etc. This consideration ensures that such hardware failures do not compromise safety. FRA received a comment expressing concern that automatic restarts may not always be optimal. Working Group discussions concluded
Paragraph (b)(4) deals with common mode failure. The common mode failures are those that stem from a component failure that can cause other components to fail due to close association among components. These failures are due primarily to poor design practices with respect to interaction among and between components.
Paragraph (b)(5) discusses external influences. FRA notes that external influences need to be taken into account for the safety of the product. Close attention needs to be given to the environment in which the equipment operates.
Paragraph (b)(6) addresses product modifications. In addition to PSP requirements and other relevant requirements of subpart H, close attention needs to be given as to how these modifications affect safety when modifications are made.
Paragraph (b)(7) deals with software design. Software integrity is crucial to the safety of the product. Non-vital (or non-fail-safe) components need to be controlled in such a manner so their failure does not create a hazard. For example, if a semiconductor's memory fails, software checks into the semiconductor locations can determine if a potential data corruption has occurred and take appropriate action so that the corrupted data does not constitute a hazard. Hence the importance of software design for the software controlling these types of components.
Paragraph (b)(8) addresses the closed loop principle. Closed loop means that a system is designed so that its output is continuously compared with its input to determine if an error has occurred.
FRA added a separate paragraph (9) in this appendix specifically to discuss human factors design considerations. Human-centered design principles recognize that machines can only be as effective as the humans who use them. The goals of human factors requirements and concepts in product design are to enhance safety, increase the effectiveness and efficiency of work, and reduce human error, fatigue, and stress. Since the implementation of any new system, subsystem or component can directly or indirectly change the nature of tasks that humans perform, both negative and positive consequences of implementation should be considered in design. FRA believes that these principles need to be adequately addressed early in the product development stage rather than at the end of it. Often times, an engineer or evaluator unfamiliar with human factors issues will attempt to address human factors issues as the end of the product development stage nears, at which point only changes in the way the product is implemented are possible (
Paragraph (c) provides that certain listed standards may be used for verification and validation procedures. These standards are already current industry/consensus standards.
Paragraph (a) discusses the purpose of an independent third party assessment of product verification and validation. FRA described some of the background for the requirement in the NPRM.
The requirement for an independent third party assessment is a reasonably common one in the field of safety-critical electronic systems. FRA's experience with emerging systems suggests that this approach can enhance the quality of decision making by railroads and FRA in several ways.
First, if those who design and produce electronic systems know that they may face a third party review, they will be more rigorous in creating and maintaining safety documentation for their systems. Suppliers know that FRA has limited technical assets to devote to this kind of effort, and documentation of safety engineering practice has in some instances been lacking in the past. Documentation, by itself, will not ensure a safe system. However, the absence of documentation will make it virtually impossible to ensure the safety of the system throughout its life-cycle; and this rule allows technical risks much greater than those previously managed by railroads and FRA in the past.
Second, a third-party assessment will help FRA make well informed decisions in those cases where approval of the PSP is required. The third party brings a perspective independent of the designer and allied with the interest of the railroad in ensuring the system is safe. The third party also brings a level of technical expertise that may not be available on the staff of the railroad—in effect, permitting the railroad (and thus FRA) to look behind claims of the vendor to actual engineering practice.
Third, because the third-party review can be conducted in phases as the product is specified, designed, and produced, the review should be available to the railroad and FRA as the PSP is submitted, avoiding delay associated with iterative inquiries by FRA.
Finally, where the system in question utilizes a novel architecture, relies heavily on COTS hardware and software, or is offered to replace an existing system that is highly competent, third-party review will permit a more highly refined evaluation of the MTTHE estimates which are the raw material for the system risk assessment. Very often these estimates will be critical to review of the system.
The NPRM offered specific criteria for determining whether a third-party assessment ought to be performed, and these are carried forward in the final rule. See § 236.913(h).
Paragraphs (c) through (f) discuss the substance of the third-party assessment. This assessment should be performed on the system as it is finally configured, before revenue operations commence, and requires the reviewer to prepare a final report. A typical assessment can be divided into four levels as it progresses: the preliminary level, the functional level, the implementation level, and the closure level.
Paragraph (c) addresses the reviewer's tasks at the preliminary level. Here, the assessor reviews the supplier's processes as set forth in the documentation and provides comments to the supplier. The reviewer should be able to determine vulnerabilities in the supplier's processes and the adequacy of the RSPP and PSP as they apply to the product. “Acceptable methodology” is intended to mean standard industry practice, as contained in MIL-STD-882C, such as hazard analysis, fault tree analysis, failure mode and effect criticality analysis, or other accepted applicable methods such as fault
Paragraph (d) discusses the reviewer's tasks at the functional level. Here, the reviewer will analyze the supplier's methods to establish that they are complete and correct. First, a Preliminary Safety Analysis is performed in the design stage of a product. In addition to describing system requirements within the context of the concept of operations, it attempts, in an early stage, to classify the severity of the hazards and to assign an integrity level requirement to each major function (in conventional terms, a preliminary hazard analysis).
Traditional methodology practices widely accepted within industry and recognized by military standard MIL-STD-882C include: Hazard Analysis, Fault Tree Analysis (FTA), Failure Mode and Effects Analysis (FMEA), and Failure Modes, Effects, and Criticality Analysis (FMECA).
Hazard analysis is an extension of the PHA performed in the later phases of product development. This hazard analysis focuses more on the detailed functions of the product and its components. A hazard analysis can be repeated as needed as the product matures. A competent safety assessor should be able to determine if sufficient hazard analyses were performed during the product development cycle.
FTA starts with an identification of all hazards and determines their possible causes. Data from earlier incidents can also be used as a starting point for the analysis. This method concentrates on events that are known to lead to hazards.
FMEA considers the failure of any component within a system, tracks the effects of the failure and determines its consequences. FMEA is particularly good at detecting conditions where a single failure can result in a dangerous situation; however, its primary drawback is that it doesn't consider multiple failures. FMEA involves much detailed work and is expensive to apply to large complex systems. FMEA is usually used at a late stage in the development process, and is applied to critical areas, rather than to the complete system. FMECA is an extension of FMEA that identifies the areas of greatest need. The above descriptions are taken from “Safety-Critical Computer Systems” (Storey, Neil; Addison-Wesley Longman (Harlow, England 1996), pp. 33-57.)
Other simulation methods may also be used in conjunction with the above methods, or by themselves when appropriate. These simulation methods include fault injection, a technique that evaluates performance by injecting known faults at random times during a simulation period; Markov modeling, a modeling technique that consists of states and transitions that control events; Monte Carlo model, a simulation technique based on randomly-occurring events; and Petri-net, an abstract, formal model of information flow that shows static and dynamic properties of a system. A Petri-net is usually represented as a graph having two types of nodes (called places and transitions) connected by arcs, and markings (called tokens) indicating dynamic properties.
Paragraph (e) addresses what must be performed at the implementation level. At this stage, the product is now beginning to take form. The reviewer typically evaluates the software. Most likely, the software will be in modular form, such that software modules are produced in accordance to a particular function. The reviewer must select a significant number of modules to be able to establish that software is being developed in a safe manner.
Paragraph (f) discusses the reviewer's tasks at closure. The reviewer's primary task at this stage is to prepare a final report where all product deficiencies are noted in detail. This final report may include material previously presented to the supplier during earlier development stages.
This appendix provides human factors design criteria. At the NPRM stage of the rulemaking, a small group of members from the Working Group comprised the Human Factors Team. The task given them was to develop comprehensive design considerations for human factors and human-machine interfaces. Their suggestions were presented as part of the recommendation to the RSAC for the NPRM. The RSAC recommendation, including the suggestions of the Human Factors Team, was accepted by FRA as part of the NPRM. Although there was no formal recommendation for a Final Rule from RSAC to FRA, FRA has based this appendix on the language provided in the NPRM. This appendix addresses the basic human factors principles for the design and operation of displays, controls, supporting software functions, and other components in processor-based signal or train control systems and subsystems. The HMI requirements in this appendix attempt to capture the lessons learned from the research, design, and implementation of similar technology in other modes of transportation and other industries. FRA has placed in the docket for this rulemaking a research document that contains a broad spectrum of references to the literature in this area.
The overriding goal of this appendix is to minimize the potential for design-induced error by ensuring that processor-based signal or train control systems are suitable for operators, and their tasks and environment. The overriding conclusion from the research is that processor-based signal or train control systems that have been designed with human-centered design principles in mind—system products that keep human operators as the central active component of the system—are more likely to result in improved safety.
Paragraph (a) addresses the purpose of the HMI requirement. The team concluded from its research that increased automation of systems through the use of products involves negative safety effects, as well as positive ones. Products with human-centered design features, however, are more likely to result in improved system safety. The human-centered systems approach recognizes that technology is only as effective as the humans who must use it. HMI designs that do not consider human capabilities, limitations, characteristics and motivation will be less efficient, less effective and less safe to operate. Therefore, the HMI requirement articulated in this appendix promotes consideration of these issues by designers during the development of HMIs.
Paragraph (b) defines two essential terms, “designer” and “operator,” which are critical to a clear understanding of the HMI requirement.
Paragraph (c) highlights various issues that designers should be aware of and attempt to prevent during the design process. For example, paragraph (c)(1) addresses “reduced situation awareness and over-reliance,” which can result when products transform the role of a human operator from an active system controller to a passive system monitor. Essentially, a passive operator is less alert to what the system is doing, may rely too heavily on the system and become less capable of reacting properly when the system requires the operator's attention. For that reason the HMI requirement promotes operator action to maintain operation of the equipment and provide numerous opportunities for practice. The requirement further
Paragraph (c)(2) addresses another HMI issue, “predictability and consistency” in product behavior. For example, objects designed for predictability should move forward when an operator pushes the object or its controller forward, and valves designed for consistency should open in the same direction. In addition, new controls that require similar actions to older like controls should minimize the interference of learning in the transfer of knowledge and take advantage of already automated behaviors (
Paragraph (c)(3) addresses a third HMI issue, which involves a human's limited memory and ability to process information. The fact that humans can process only one or two streams of information at a time without loss of information is termed “selective attention.” A remedy for selective attention is reducing an operator's information processing load by focusing on integrated information, the format of the information, and by testing decision aids to evaluate their true benefits. These solutions are in this paragraph. Finally, paragraph (c)(4) addresses miscellaneous human factor concerns that must be addressed at the design stage.
Paragraph (d) addresses design elements for on-board displays and controls. Paragraph (d)(1) articulates specific requirements for the location of displays and controls. These requirements need little explanation, since they are well-known principles. However, it must be recognized that these principles may at times conflict with each other. For example, it may not be possible to arrange controls according to their expected order of use and locate displays as close as possible to the controls that affect them. Trade-offs are often required in the design of effective, efficient and safe HMIs. System designers must ensure that appropriate personnel evaluate these critical decisions and make the appropriate trade-offs.
Paragraph (d)(2) pertains to information management by highlighting some of the industry recognized minimum standards for human-centered design of displays. Important information management issues include displaying information to emphasize its importance (
Generally, all the literature concludes that as the nature of the task changes, performance related to those tasks inevitably changes. The nature and potential consequences of these changes can be determined by comparing the functions of an old system to that which is proposed in a new system. System evaluations of the impact of new technology on human operators must be conducted to help identify new sources of error. FRA believes that HMI evaluations conducted in accordance with the requirements of this appendix prior to implementation of new processor-based signal and train control technology will result in products that are safe and efficient.
This final rule has been evaluated in accordance with existing policies and procedures and is considered “significant” under Executive Order 12866. It is also considered to be significant under DOT policies and procedures (
FRA has prepared a Final Regulatory Evaluation addressing the economic impact of the rule. This regulatory evaluation has been placed in the docket and is available for public inspection and copying during normal business hours at FRA's docket room at the Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590. Copies may also be obtained by submitting a written request to the FRA Docket Clerk at the above address.
Signal and train control systems act to prevent collisions between on-track equipment, in some cases to warn of defective track or other hazards and in some cases to govern train speed, preventing speed-related derailments. Thus the ultimate benefit of any signal and train control system's safety regulation is the provision of a safe operating environment for trains. The particular benefit of this rule is the facilitation of introducing new technology into the field of signal and train control under minimal government scrutiny.
The final rule regulates processor-based signal and train control systems. Technological advances have made these systems increasingly more attractive to railroads, yet existing FRA rules concerning design and testing of these systems impose restrictions which are unrealistic when applied to processor-based systems. In addition, in many instances, these systems are simply beyond the scope of current rules regulating traditional relay-based signal and train control systems. Consequently, FRA has been forced to regulate by exception, by issuing waivers or exemptions to its regulations on a case-by-case basis. This process has generally been recognized as time-consuming and unpredictable for the industry.
The performance standard presented here is that any new system must be at least as safe as the existing system. It does not mandate use of processor-based systems, but rather establishes performance standards for their design and use, should a railroad intend to implement one. FRA believes that a
(1) The new system is safer;
(2) The new system is less expensive and will not diminish the existing level of safety; or
(3) Continued maintenance of the existing system is no longer feasible.
The final rule would require substantial safety documentation from the railroad. The documentation is required to explain how each railroad will comply with the performance standard. FRA expects these internal procedures to be more efficient than current FRA rules, since they will be particularized for each railroad.
An undetermined question is whether the cost of writing the railroad's safety plan and product safety plan exceeds the benefit from the increased flexibility. FRA does not believe so. It appears that the costliest part of the documentation will be the risk assessment. Currently, a substantial portion of this work is performed by suppliers. Each supplier now serving the rail industry uses some form of risk/safety analysis which can be documented, and although several suppliers commented that the documentation they currently gather is not adequate to meet the requirements of the rule, FRA believes that a much larger portion of the work required for the risk assessment has been done in standard engineering practices than suppliers' comments indicate. Nevertheless, FRA has added an additional means of compliance in the final rule, which will lessen any potential burden on suppliers.
The primary cost of this rule is the gathering of what FRA believes to be existing safety information into one source. This would likely be a single time expense for each system, unless the system were not to perform as expected in service. The corresponding benefit would be the railroad's ability to use the more flexible maintenance standards over the life of the system. An offset to the recurring benefit would be the cost of tracking failures which might lead to an unsafe condition.
Under the final rule, railroads using existing processor-based signal and train control systems would be required to maintain a software management control plan. FRA believes this is a desirable safety practice, as it would avoid incorrectly installing the wrong programming, either through hardware or software, in a system. FRA also believes that under the current regulations, replacing a processor or program would constitute disarrangement and would require physical testing of every device or appliance affected by that processor. In some cases, all of the switches and signals on a line are tied to a processor. It is costly and time consuming to conduct the currently required tests, and it is certainly less expensive to maintain a software management control plan, which is a step in avoiding a trigger for the disarrangement requirements. In new systems, which will include configuration management as part of the PSP, the maintenance plan may use configuration management to all but eliminate disarrangement issues. Further, configuration management will reduce the cost of troubleshooting by reducing the number of variables. Thus, insofar as existing processor-based systems are concerned, the rule will be less costly than the current rule, and FRA believes it will be more effective in promoting safety.
FRA has not quantified the above benefits because it has no way to estimate how many systems are likely to be covered by this rule, what the incremental costs will be, and when the benefits will occur. Because of the industry involvement in developing the NPRM (labor, management, and suppliers), FRA believes the benefits appear to outweigh the cost, since changes made to the NPRM language in order to derive the final rule were all likely to reduce potential burdens, without any decrease in safety. The rule does not appear to have any effect of transferring costs from the railroads to the suppliers. In addition, the suppliers as participants in the development of the NPRM, did not perceive that costs would be transferred to them.
In short, FRA does not know the magnitude of the benefits and costs because of the performance standard concepts embodied in the final rule, but believes that benefits will outweigh costs.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the
FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of a final rule. The OMB control number, when assigned, will be announced by separate notice in the
FRA has evaluated this final regulation in accordance with the agency's “Procedures for Considering Environmental Impacts” as required by the National Environmental Policy Act (42 U.S.C. 4321
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. FRA received no comments during the comment period concluding that federalism is impacted. FRA is therefore not required to include a federalism summary impact statement with the final rule. State and local
Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal Regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Sec. 201. Section 202 of the Act further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement * * *” detailing the effect on State, local and tribal governments and the private sector. The rules issued today do not include any mandates which will result in the expenditure, in the aggregate, of $100,000,000 or more in any one year, and thus preparation of a statement is not required.
Administrative practice and procedure.
Highway safety, Railroad safety.
Railroad safety, Reporting and recordkeeping requirements.
49 U.S.C. 20103, 20107, 20111, 20112, 20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(a) This section governs the procedures for requesting confidential treatment of any document filed with or otherwise provided to FRA in connection with its enforcement of statutes or FRA regulations related to railroad safety. For purposes of this section, “enforcement” shall include receipt of documents required to be submitted by FRA regulations, and all investigative and compliance activities, in addition to the development of violation reports and recommendations for prosecution.
49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(a) The definitions in § 236.903 of this chapter shall apply to this section, where applicable.
(b) In lieu of compliance with the requirements of this subpart, a railroad may elect to qualify an existing product under part 236, subpart H of this chapter. Highway-rail grade crossing warning systems which contain new or novel technology or provide safety-critical data to a railroad signal system shall comply with part 236, subpart H of this chapter. New or novel technology refers to a technology not previously recognized for use as of March 7, 2005.
(c) The Product Safety Plan (see § 236.903 of this chapter) must explain how the performance objective sought to be addressed by each of the particular requirements of this subpart is met by the product, why the objective is not relevant to the product's design, or how safety requirements are satisfied using alternative means. Deviation from those particular requirements is authorized if an adequate explanation is provided, making reference to relevant elements of the Product Safety Plan, and if the product satisfies the performance standard set forth in § 236.909 of this chapter. (See § 236.907(a)(14) of this chapter.) Any existing products both used at highway-rail grade crossing warning systems and which provide safety-critical data to, or receive safety-critical data from, a railroad signal or train control system shall be included in the software management control plan as required in § 236.18 of this chapter.
(d) The following exclusions from the latitude provided by this section apply:
(1) Nothing in this section authorizes deviation from applicable design requirements for automated warning devices at highway-rail grade crossings in the Manual on Uniform Traffic Control Devices (MUTCD), 2000 Millennium Edition, Federal Highway Administration (FHWA), dated December 18, 2000, including Errata #1 to MUTCD 2000 Millennium Edition dated June 14, 2001 (
(2) Nothing in this section authorizes deviation from the following requirements of this subpart:
(i) § 234.207(b) (Adjustment, repair, or replacement of a component);
(ii) § 234.209(b) (Interference with normal functioning of system);
(iii) § 234.211 (Security of warning system apparatus);
(iv) § 234.217 (Flashing light units);
(v) § 234.219 (Gate arm lights and light cable);
(vi) § 234.221 (Lamp voltage);
(vii) § 234.223 (Gate arm);
(viii) § 234.225 (Activation of warning system);
(ix) § 234.227 (Train detection apparatus)—if a train detection circuit is employed to determine the train's presence;
(x) § 234.229 (Shunting sensitivity)—if a conventional track circuit is employed;
(xi) § 234.231 (Fouling wires)—if a conventional train detection circuit is employed;
(xii) § 234.233 (Rail joints)—if a track circuit is employed;
(xiii) § 234.235 (Insulated rail joints)—if a track circuit is employed;
(xiv) § 234.237 (Reverse switch cut-out circuit); or
(xv) § 234.245 (Signs).
(e) Deviation from the requirement of § 234.203 (Control circuits) that circuits be designed on a fail-safe principle must be separately justified at the component, subsystem, and system level using the criteria of § 236.909 of this chapter.
49 U.S.C. 20103, 20107, 20501—20505; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(a) Except as provided in paragraph (b) of this section, this part applies to all railroads.
(b) This part does not apply to—
(1) A railroad that operates only on track inside an installation that is not part of the general railroad system of transportation; or
(2) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
(g) A person may also be subject to criminal penalties for knowingly and wilfully making a false entry in a record or report required to be made under this part, filing a false record or report, or violating any of the provisions of 49 U.S.C. 21311.
(h) The requirements of subpart H of this part apply to safety-critical processor-based signal and train control systems, including subsystems and components thereof, developed under the terms and conditions of that subpart.
(a) Within 6 months of June 6, 2005, each railroad shall develop and adopt a software management control plan for its signal and train control systems. A railroad commencing operations after June 6, 2005, shall adopt a software management control plan for its signal and train control systems prior to commencing operations.
(b) Within 30 months of the completion of the software management control plan, each railroad shall have fully implemented such plan.
(c) For purposes of this section, “software management control plan” means a plan designed to ensure that the proper and intended software version for each specific site and location is documented (mapped) and maintained through the life-cycle of the system. The plan must further describe how the proper software configuration is to be identified and confirmed in the event of replacement, modification, or disarrangement of any part of the system.
(a) Results of tests made in compliance with §§ 236.102 to 236.109, inclusive; 236.376 to 236.387, inclusive; 236.576; 236.577; 236.586 to 236.589, inclusive; and 236.917(a) must be recorded on preprinted forms provided by the railroad or by electronic means, subject to approval by the FRA Associate Administrator for Safety. These records must show the name of the railroad, place and date, equipment tested, results of tests, repairs, replacements, adjustments made, and condition in which the apparatus was left. Each record must be:
(1) Signed by the employee making the test, or electronically coded or identified by number of the automated test equipment (where applicable);
(2) Unless otherwise noted, filed in the office of a supervisory official having jurisdiction; and
(3) Available for inspection and replication by FRA and FRA-certified State inspectors.
(b) Results of tests made in compliance with § 236.587 must be retained for 92 days.
(c) Results of tests made in compliance with § 236.917(a) must be retained as follows:
(1) Results of tests that pertain to installation or modification must be retained for the life-cycle of the equipment tested and may be kept in any office designated by the railroad; and
(2) Results of periodic tests required for maintenance or repair of the equipment tested must be retained until the next record is filed but in no case less than one year.
(d) Results of all other tests listed in this section must be retained until the next record is filed but in no case less than one year.
(e) Electronic or automated tracking systems used to meet the requirements contained in paragraph (a) of this section must be capable of being reviewed and monitored by FRA at any time to ensure the integrity of the system. FRA's Associate Administrator for Safety may prohibit or revoke a railroad's authority to utilize an electronic or automated tracking system in lieu of preprinted forms if FRA finds that the electronic or automated tracking system is not properly secured, is inaccessible to FRA, FRA-certified State inspectors, or railroad employees requiring access to discharge their assigned duties, or fails to adequately track and monitor the equipment. The Associate Administrator for Safety will provide the affected railroad with a written statement of the basis for his or her decision prohibiting or revoking the railroad from utilizing an electronic or automated tracking system.
Railroad means any form of non-highway ground transportation that runs on rails or electromagnetic guideways and any entity providing such transportation, including—
(a) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and
(b) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
(i) How the objectives of any such requirements are met by the product;
(ii) Why the objectives of any such requirements are not relevant to the product; or
(iii) How the requirement is satisfied using alternative means. (See § 236.907(a)(14)).
(2) Products subject to this subpart are also subject to applicable requirements of parts 233, 234 and 235 of this chapter. See § 234.275 of this chapter with respect to use of this subpart to qualify certain products for use within highway-rail grade crossing warning systems.
(3) Information required to be submitted by this subpart that a submitter deems to be trade secrets, or commercial or financial information that is privileged or confidential under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), shall be so labeled in accordance with the provisions of § 209.11 of this chapter. FRA handles information so labeled in accordance with the provisions of § 209.11 of this chapter.
As used in this subpart—
(a)
(b)
(1)
(i) A complete description of methods used to evaluate a system's behavioral characteristics;
(ii) A complete description of risk assessment procedures;
(iii) The system safety precedence followed; and
(iv) The identification of the safety assessment process.
(2)
(3)
(4)
(c)
(2) Normally within 180 days of receipt of a petition for approval of an RSPP, FRA:
(i) Grants the petition, if FRA finds that the petition complies with applicable requirements of this subpart, attaching any special conditions to the approval of the petition as necessary to carry out the requirements of this subpart;
(ii) Denies the petition, setting forth reasons for denial; or
(iii) Requests additional information.
(3) If no action is taken on the petition within 180 days, the petition remains pending for decision. The petitioner is encouraged to contact FRA for information concerning its status.
(4) FRA may reopen consideration of any previously-approved petition for cause, providing reasons for such action.
(d)
(2) Petitions for FRA approval of RSPP modifications are subject to the same procedures as petitions for initial RSPP approval, as specified in paragraph (c) of this section. In addition, such petitions must identify the proposed modification(s) to be made, the reason for the modification(s), and the effect of the modification(s) on safety.
(a)
(1) A complete description of the product, including a list of all product components and their physical relationship in the subsystem or system;
(2) A description of the railroad operation or categories of operations on which the product is designed to be used, including train movement density, gross tonnage, passenger train movement density, hazardous materials volume, railroad operating rules, and operating speeds;
(3) An operational concepts document, including a complete description of the product functionality and information flows;
(4) A safety requirements document, including a list with complete descriptions of all functions which the product performs to enhance or preserve safety;
(5) A document describing the manner in which product architecture satisfies safety requirements;
(6) A hazard log consisting of a comprehensive description of all safety-relevant hazards to be addressed during the life cycle of the product, including maximum threshold limits for each hazard (for unidentified hazards, the threshold shall be exceeded at one occurrence);
(7) A risk assessment, as prescribed in § 236.909 and Appendix B to this part;
(8) A hazard mitigation analysis, including a complete and comprehensive description of all hazards to be addressed in the system design and development, mitigation techniques used, and system safety precedence followed, as prescribed by the applicable RSPP;
(9) A complete description of the safety assessment and verification and validation processes applied to the product and the results of these processes, describing how subject areas covered in Appendix C to this part are either: addressed directly, addressed using other safety criteria, or not applicable;
(10) A complete description of the safety assurance concepts used in the product design, including an
(11) A human factors analysis, including a complete description of all human-machine interfaces, a complete description of all functions performed by humans in connection with the product to enhance or preserve safety, and an analysis in accordance with Appendix E to this part or in accordance with other criteria if demonstrated to the satisfaction of the Associate Administrator for Safety to be equally suitable;
(12) A complete description of the specific training of railroad and contractor employees and supervisors necessary to ensure the safe and proper installation, implementation, operation, maintenance, repair, inspection, testing, and modification of the product;
(13) A complete description of the specific procedures and test equipment necessary to ensure the safe and proper installation, implementation, operation, maintenance, repair, inspection, testing, and modification of the product. These procedures, including calibration requirements, shall be consistent with or explain deviations from the equipment manufacturer's recommendations;
(14) An analysis of the applicability of the requirements of subparts A through G of this part to the product that may no longer apply or are satisfied by the product using an alternative method, and a complete explanation of the manner in which those requirements are otherwise fulfilled (see § 234.275 of this chapter and § 236.901(c));
(15) A complete description of the necessary security measures for the product over its life-cycle;
(16) A complete description of each warning to be placed in the Operations and Maintenance Manual identified in § 236.919, and of all warning labels required to be placed on equipment as necessary to ensure safety;
(17) A complete description of all initial implementation testing procedures necessary to establish that safety-functional requirements are met and safety-critical hazards are appropriately mitigated;
(18) A complete description of:
(i) All post-implementation testing (validation) and monitoring procedures, including the intervals necessary to establish that safety-functional requirements, safety-critical hazard mitigation processes, and safety-critical tolerances are not compromised over time, through use, or after maintenance (repair, replacement, adjustment) is performed; and
(ii) Each record necessary to ensure the safety of the system that is associated with periodic maintenance, inspections, tests, repairs, replacements, adjustments, and the system's resulting conditions, including records of component failures resulting in safety-relevant hazards (see § 236.917(e)(3));
(19) A complete description of any safety-critical assumptions regarding availability of the product, and a complete description of all backup methods of operation; and
(20) A complete description of all incremental and predefined changes (see paragraphs (b) and (c) of this section).
(b)
(2) The PSP must identify configuration/revision control measures designed to ensure that safety-functional requirements and safety-critical hazard mitigation processes are not compromised as a result of any such change. (Software changes involving safety functional requirements or safety critical hazard mitigation processes for components in use are also addressed in paragraph (c) of this section.)
(c)
(2) Changes classified as maintenance require validation.
(d)
(2) The PSP shall specify the railroad's procedures for action upon notification of a safety-critical upgrade, patch, or revision for this processor-based system, sub-system, or component, and until the upgrade, patch, or revision has been installed; and such action shall be consistent with the criterion set forth in § 236.915(d) as if the failure had occurred on that railroad.
(3) The PSP must identify configuration/revision control measures designed to ensure that safety-functional requirements and safety-critical hazard mitigation processes are not compromised as a result of any such change, and that any such change can be audited.
(4) Product suppliers entering into contractual arrangements for product support described in a PSP must promptly report any safety-relevant failures and previously unidentified hazards to each railroad using the product.
(a)
(b)
(c)
(d)
(i) No new hazards are introduced as a result of the change;
(ii) Severity of each hazard associated with the previous condition does not increase from the previous condition; and
(iii) Exposure to such hazards does not change from the previous condition.
(2) An abbreviated risk assessment supports the finding required by paragraph (a) of this section if it establishes that the resulting MTTHE for the proposed product is greater than or equal to the MTTHE for the system, component or method performing the same function in the previous condition. This determination must be supported by credible safety analysis sufficient to persuade the Associate Administrator for Safety that the likelihood of the new product's MTTHE being less than the MTTHE for the system, component, or method performing the same function in the previous condition is very small.
(3) Alternatively, an abbreviated risk assessment supports the finding required by paragraph (a) of this section if:
(i) The probability of failure for each hazard of the product is equal to or less the corresponding recommended Specific Quantitative Hazard Probability Ratings classified as more favorable than “undesirable” by AREMA Manual Part 17.3.5 (Recommended Procedure for Hazard Identification and Management of Vital Electronic/Software-Based Equipment Used in Signal and Train Control Applications), or—in the case of a hazard classified as undesirable—the Associate Administrator for Safety concurs that mitigation of the hazard within the framework of the electronic system is not practical and the railroad proposes reasonable steps to undertake other mitigation. The Director of the Federal Register approves the incorporation by reference of the entire AREMA Communications and Signal Manual, Volume 4, Section 17—Quality Principles (2005) in this section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the incorporated standard from American Railway Engineering and Maintenance of Way Association, 8201 Corporation Drive, Suite 1125, Landover, MD 20785-2230. You may inspect a copy of the incorporated standard at the Federal Railroad Administration, Docket Clerk, 1120 Vermont Ave., NW., Suite 7000, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to
(ii) The product is developed in accordance with:
(A) AREMA Manual Part 17.3.1 (Communications and Signal Manual of Recommended Practices, Recommended Safety Assurance Program for Electronic/Software Based Products Used in Vital Signal Applications);
(B) AREMA Manual Part 17.3.3 (Communications and Signal Manual of Recommended Practices, Recommended Practice for Hardware Analysis for Vital Electronic/Software-Based Equipment Used in Signal and Train Control Applications);
(C) AREMA Manual Part 17.3.5 (Communications and Signal Manual of Recommended Practices, Recommended Practice for Hazard Identification and Management of Vital Electronic/Software-Based Equipment Used in Signal and Train Control Applications);
(D) Appendix C of this subpart; and
(iii) Analysis supporting the PSP suggests no credible reason for believing that the product will be less safe than the previous condition.
(e)
(1) Safety levels must be measured using competent risk assessment methods and must be expressed as the total residual risk in the system over its expected life-cycle after implementation of all mitigating measures described in the PSP. Appendix B to this part provides criteria for acceptable risk assessment methods. Other methods may be acceptable if demonstrated to the satisfaction of the Associate Administrator for Safety to be equally suitable.
(2) For the previous condition and for the life-cycle of the product, risk levels must be expressed in units of consequences per unit of exposure.
(i) In all cases exposure must be expressed as total train miles traveled per year. Consequences must identify the total cost, including fatalities, injuries, property damage, and other incidental costs, such as potential consequences of hazardous materials involvement, resulting from preventable accidents associated with the function(s) performed by the system. A railroad may, as an alternative, use a risk metric in which consequences are measured strictly in terms of fatalities.
(ii) In those cases where there is passenger traffic, a second risk metric must be calculated, using passenger-miles traveled per year as the exposure, and total societal costs of passenger injuries and fatalities, resulting from preventable accidents associated with the function(s) performed by the system, as the consequences.
(3) If the description of railroad operations for the product required by § 236.907(a)(2) involves changes to the physical or operating conditions on the railroad prior to or within the expected life cycle of the product subject to review under this subpart, the previous condition shall be adjusted to reflect the lower risk associated with systems needed to maintain safety and performance at higher speeds or traffic volumes. In particular, the previous condition must be adjusted for assumed implementation of systems necessary to support higher train speeds as specified in § 236.0, as well as other changes required to support projected increases in train operations. The following specific requirements apply:
(i) If the current method of operation would not be adequate under § 236.0 for the proposed operations, then the adjusted previous condition must include a system as required under § 236.0, applied as follows:
(A) The minimum system where a passenger train is operated at a speed of 60 or more miles per hour, or a freight train is operated at a speed of 50 or more miles per hour, shall be a traffic control system;
(B) The minimum system where a train is operated at a speed of 80 or more miles per hour, but not more than 110 miles per hour, shall be an automatic cab signal system with automatic train control; and
(C) The minimum system where a train is operated at a speed of more than 110 miles per hour shall be a system determined by the Associate Administrator for Safety to provide an equivalent level of safety to systems required or authorized by FRA for comparable operations.
(ii) If the current method of operation would be adequate under § 236.0 for the proposed operations, but the current system is not at least as safe as a traffic control system, then the adjusted previous condition must include a traffic control system in the event of any change that results in:
(A) An annual average daily train density of more than twelve trains per day; or
(B) An increase in the annual average daily density of passenger trains of more than four trains per day.
(iii) Paragraph (e)(3)(ii)(A) of this section shall apply in all situations where train volume will exceed more than 20 trains per day but shall not apply to situations where train volume will exceed 12 trains per day but not exceed 20 trains per day, if in its PSP the railroad makes a showing sufficient to establish, in the judgment of the Associate Administrator for Safety, that the current method of operation is adequate for a specified volume of traffic in excess of 12 trains per day, but not more than 20 trains per day, without material delay in the movement of trains over the territory and without unreasonable expenditures to expedite those movements when compared with the expense of installing and maintaining a traffic control system.
(4) In the case review of a PSP that has been consolidated with a proceeding pursuant to part 235 of this subchapter (see § 236.911(b)), the base case shall be determined as follows:
(i) If FRA determines that discontinuance or modification of the system should be granted without regard to whether the product is installed on the territory, then the base case shall be the conditions that would obtain on the territory following the discontinuance or modification.
(ii) If FRA determines that discontinuance or modification of the system should be denied without regard to whether the product is installed on the territory, then the base case shall remain the previous condition (unadjusted).
(iii) If, after consideration of the application and review of the PSP, FRA determines that neither paragraph (e)(4)(i) nor paragraph (e)(4)(ii) of this section should apply, FRA will establish a base case that is consistent with safety and in the public interest.
(a)
(b)
(c)
(d)
(e)
(a)
(1) The territory on which a product covered by this subpart is normally subject to joint operations, or is operated upon by more than one railroad; and
(2) The PSP involves a change in method of operation.
(b)
(c)
(1) Not less than 180 days prior to planned use of the product in revenue service as described in the PSP or PSP amendment, the railroad shall submit an informational filing to the Associate Administrator for Safety, FRA, 1120 Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590. The informational filing must provide a summary description of the PSP or PSP amendment, including the intended use of the product, and specify the location where the documentation as described in § 236.917(e)(1) is maintained.
(2) Within 60 days of receipt of the informational filing, FRA:
(i) Acknowledges receipt of the filing;
(ii) Acknowledges receipt of the informational filing and requests further information; or
(iii) Acknowledges receipt of the filing and notifies the railroad, for good cause, that the filing will be considered as a petition for approval as set forth in paragraph (d) of this section, and requests such further information as may be required to initiate action on the petition for approval. Examples of good cause, any one of which is sufficient, include: the PSP describes a product with unique architectural concepts; the PSP describes a product that uses design or safety assurance concepts considered outside existing accepted practices (see Appendix C); and the PSP describes a locomotive-borne product that commingles safety-critical train control processing functions with locomotive operational functions. In addition, good cause includes any instance where the PSP or PSP amendment does not appear to support its safety claim of satisfaction of the performance standard, after FRA has requested further information as
(d)
(1)
(i) The railroad may file a Notice of Product Development with the Associate Administrator for Safety not less than 30 days prior to the end of the system design review phase of product development and 180 days prior to planned implementation, inviting FRA to participate in the design review process and receive periodic briefings and updates as needed to follow the course of product development. At a minimum, the Notice of Product Development must contain a summary description of the product to be developed and a brief description of goals for improved safety.
(ii) Within 15 days of receipt of the Notice of Product Development, the Associate Administrator for Safety either acknowledges receipt or acknowledges receipt and requests more information.
(iii) If FRA concludes that the Notice of Product Development contains sufficient information, the Associate Administrator for Safety determines the extent and nature of the assessment and review necessary for final product approval. FRA may convene a technical consultation as necessary to discuss issues related to the design and planned development of the product.
(iv) Within 60 days of receiving the Notice of Product Development, the Associate Administrator for Safety provides a letter of preliminary review with detailed findings, including whether the design concepts of the proposed product comply with the requirements of this subpart, whether design modifications are necessary to meet the requirements of this subpart, and the extent and nature of the safety analysis necessary to comply with this subpart.
(v) Not less than 60 days prior to use of the product in revenue service, the railroad shall file with the Associate Administrator for Safety a petition for final approval.
(vi) Within 30 days of receipt of the petition for final approval, the Associate Administrator for Safety either acknowledges receipt or acknowledges receipt and requests more information. Whenever possible, FRA acts on the petition for final approval within 60 days of its filing by either granting it or denying it. If FRA neither grants nor denies the petition for approval within 60 days, FRA advises the petitioner of the projected time for decision and conducts any further consultations or inquiries necessary to decide the matter.
(2)
(i) Not less than 180 days prior to use of a product in revenue service, the railroad shall file with the Associate Administrator for Safety a petition for approval.
(ii) Within 60 days of receipt of the petition for approval, FRA either acknowledges receipt, or acknowledges receipt and requests more information.
(iii) Whenever possible, considering the scope, complexity, and novelty of the product or change, FRA acts on the petition for approval within 180 days of its filing by either granting it or denying it. If FRA neither grants nor denies the petition for approval within 180 days, it remains pending, and FRA provides the petitioner with a statement of reasons why the petition has not yet been approved.
(e)
(2) Interested parties may submit to FRA information and views pertinent to FRA's consideration of an informational filing or petition for approval. FRA considers comments to the extent practicable within the periods set forth in this section. In a proceeding consolidated with a proceeding under part 235 of this chapter, FRA considers all comments received.
(f)
(g)
(i) The petition for approval has been properly filed and contains the information required in § 236.907;
(ii) FRA has determined that the PSP complies with the railroad's approved RSPP and applicable requirements of this subpart; and
(iii) The risk assessment supporting the PSP demonstrates that the proposed product satisfies the minimum performance standard stated in § 236.909.
(2) The Associate Administrator for Safety considers the following applicable factors when evaluating the risk assessment:
(i) The extent to which recognized standards have been utilized in product design and in the relevant safety analysis;
(ii) The availability of quantitative data, including calculations of statistical confidence levels using accepted methods, associated with risk estimates;
(iii) The complexity of the product and the extent to which it will incorporate or deviate from design practices associated with previously established histories of safe operation;
(iv) The degree of rigor and precision associated with the safety analyses, including the comprehensiveness of the qualitative analyses, and the extent to which any quantitative results realistically reflect appropriate sensitivity cases;
(v) The extent to which validation of the product has included experiments and tests to identify uncovered faults in the operation of the product;
(vi) The extent to which identified faults are effectively addressed;
(vii) Whether the risk assessment for the previous condition was conducted using the same methodology as that for operation under the proposed condition; and
(viii) If an independent third-party assessment is required or is performed at the election of the supplier or railroad, the extent to which the results of the assessment are favorable.
(3) The Associate Administrator for Safety also considers when assessing PSPs the safety requirements for the product within the context of the proposed method of operations, including:
(i) The degree to which the product is relied upon as the primary safety system for train operations; and
(ii) The degree to which the product is overlaid upon and its operation is demonstrated to be independent of safety-relevant rules, practices and systems that will remain in place following the change under review.
(4) As necessary to ensure compliance with this subpart and with the RSPP, FRA may attach special conditions to the approval of the petition.
(5) Following the approval of a petition, FRA may reopen consideration of the petition for cause. Cause for reopening a petition includes such circumstances as a credible allegation of error or fraud, assumptions determined to be invalid as a result of in-service experience, or one or more unsafe events calling into question the safety analysis underlying the approval.
(h)
(i) Those factors listed in paragraphs (g)(2)(i) through (g)(2)(vii) of this section;
(ii) The sufficiency of the assessment or audit previously conducted at the election of a supplier or railroad; and
(iii) Whether applicable requirements of subparts A through G of this part are satisfied.
(2) As used in this section, “independent third party” means a technically competent entity responsible to and compensated by the railroad (or an association on behalf of one or more railroads) that is independent of the supplier of the product. An entity that is owned or controlled by the supplier, that is under common ownership or control with the supplier, or that is otherwise involved in the development of the product is not considered “independent” within the meaning of this section. FRA may maintain a roster of recognized technically competent entities as a service to railroads selecting reviewers under this section; however, a railroad is not limited to entities currently listed on any such roster.
(3) The third-party assessment must, at a minimum, consist of the activities and result in production of documentation meeting the requirements of Appendix D to this part. However, when requiring an assessment pursuant to this section, FRA specifies any requirements in Appendix D to this part which the agency has determined are not relevant to its concerns and, therefore, need not be included in the assessment. The railroad shall make the final assessment report available to FRA upon request.
(i)
(j)
(i) A complete description of the product;
(ii) An operational concepts document;
(iii) A complete description of the specific test procedures, including the measures that will be taken to protect trains and on-track equipment;
(iv) An analysis of the applicability of the requirements of subparts A through G of this part to the product that will not apply during testing;
(v) The date testing will begin;
(vi) The location of the testing; and
(vii) A description of any effect the testing will have on the current method of operation.
(2) FRA may impose such additional conditions on this testing as may be necessary for the safety of train operations. Exemptions from regulations other than those contained in this part must be requested through waiver procedures in part 211 of this chapter.
(a)
(2) Except as stated in paragraph (a)(3) of this section, if FRA approval is required for a product, the railroad shall not operate the product in revenue service until after the Associate Administrator for Safety has approved the petition for approval for that product pursuant to § 236.913.
(3) If after product implementation FRA elects, for cause, to treat the informational filing for the product as a petition for approval, the product may remain in use if otherwise consistent with the applicable law and regulations. FRA may impose special conditions for use of the product during the period of review for cause.
(b)
(c)
(d)
(a)
(i) For the life-cycle of the product, adequate documentation to demonstrate that the PSP meets the safety requirements of the railroad's RSPP and applicable standards in this subpart, including the risk assessment; and
(ii) An Operations and Maintenance Manual, pursuant to § 236.919; and
(iii) Training records pursuant to § 236.923(b).
(2) Results of inspections and tests specified in the PSP must be recorded as prescribed in § 236.110.
(3) Contractors of the railroad shall maintain at a designated office training records pursuant to § 236.923(b).
(b)
(1) Report the inconsistency in writing (by mail, facsimile, e-mail, or hand delivery to the Director, Office of Safety Assurance and Compliance, FRA, 1120 Vermont Ave., NW., Mail Stop 25, Washington, DC 20590, within 15 days of discovery. Documents that are hand delivered must not be enclosed in an envelope;
(2) Take prompt countermeasures to reduce the frequency of the safety-relevant hazard(s) below the threshold set forth in the PSP; and
(3) Provide a final report to the FRA Director, Office of Safety Assurance and Compliance, on the results of the analysis and countermeasures taken to reduce the frequency of the safety-relevant hazard(s) below the threshold set forth in the PSP when the problem is resolved.
(a) The railroad shall catalog and maintain all documents as specified in the PSP for the installation, maintenance, repair, modification, inspection, and testing of the product and have them in one Operations and Maintenance Manual, readily available to persons required to perform such tasks and for inspection by FRA and FRA-certified State inspectors.
(b) Plans required for proper maintenance, repair, inspection, and testing of safety-critical products must be adequate in detail and must be made available for inspection by FRA and FRA-certified State inspectors where such products are deployed or maintained. They must identify all software versions, revisions, and revision dates. Plans must be legible and correct.
(c) Hardware, software, and firmware revisions must be documented in the Operations and Maintenance Manual according to the railroad's configuration management control plan and any additional configuration/revision control measures specified in the PSP.
(d) Safety-critical components, including spare equipment, must be positively identified, handled, replaced, and repaired in accordance with the procedures specified in the PSP.
(a)
(1) Persons whose duties include installing, maintaining, repairing, modifying, inspecting, and testing safety-critical elements of the railroad's products, including central office, wayside, or onboard subsystems;
(2) Persons who dispatch train operations (issue or communicate any mandatory directive that is executed or enforced, or is intended to be executed or enforced, by a train control system subject to this subpart);
(3) Persons who operate trains or serve as a train or engine crew member subject to instruction and testing under part 217 of this chapter, on a train operating in territory where a train control system subject to this subpart is in use;
(4) Roadway workers whose duties require them to know and understand how a train control system affects their safety and how to avoid interfering with its proper functioning; and
(5) The direct supervisors of persons listed in paragraphs (a)(1) through (a)(4) of this section.
(b)
(a)
(1) Identify the specific goals of the training program with regard to the target population (craft, experience level, scope of work, etc.), task(s), and desired success rate;
(2) Based on a formal task analysis, identify the installation, maintenance, repair, modification, inspection, testing, and operating tasks that must be performed on a railroad's products. This includes the development of failure scenarios and the actions expected under such scenarios;
(3) Develop written procedures for the performance of the tasks identified;
(4) Identify the additional knowledge, skills, and abilities above those required for basic job performance necessary to perform each task;
(5) Develop a training curriculum that includes classroom, simulator, computer-based, hands-on, or other formally structured training designed to impart the knowledge, skills, and abilities identified as necessary to perform each task;
(6) Prior to assignment of related tasks, require all persons mentioned in § 236.921(a) to successfully complete a training curriculum and pass an examination that covers the product and appropriate rules and tasks for which they are responsible (however, such persons may perform such tasks under the direct onsite supervision of a qualified person prior to completing such training and passing the examination);
(7) Require periodic refresher training at intervals specified in the PSP that includes classroom, simulator, computer-based, hands-on, or other formally structured training and testing, except with respect to basic skills for which proficiency is known to remain high as a result of frequent repetition of the task; and
(8) Conduct regular and periodic evaluations of the effectiveness of the training program specified in § 236.923(a)(1) verifying the adequacy of the training material and its validity with respect to current railroads products and operations.
(b)
Any person responsible for issuing or communicating mandatory directives in territory where products are or will be in use must be trained in the following areas, as applicable:
(a) Instructions concerning the interface between the computer-aided dispatching system and the train control system, with respect to the safe movement of trains and other on-track equipment;
(b) Railroad operating rules applicable to the train control system, including provision for movement and protection of roadway workers, unequipped trains, trains with failed or cut-out train control onboard systems, and other on-track equipment; and
(c) Instructions concerning control of trains and other on-track equipment in case the train control system fails, including periodic practical exercises or simulations, and operational testing under part 217 of this chapter to ensure the continued capability of the personnel to provide for safe operations under the alternative method of operation.
(a)
(1) Familiarization with train control equipment onboard the locomotive and the functioning of that equipment as part of the system and in relation to other onboard systems under that person's control;
(2) Any actions required of the onboard personnel to enable, or enter data to, the system, such as consist data, and the role of that function in the safe operation of the train;
(3) Sequencing of interventions by the system, including pre-enforcement notification, enforcement notification, penalty application initiation and post-penalty application procedures;
(4) Railroad operating rules applicable to the train control system, including provisions for movement and protection of any unequipped trains, or trains with failed or cut-out train control onboard systems and other on-track equipment;
(5) Means to detect deviations from proper functioning of onboard train control equipment and instructions regarding the actions to be taken with respect to control of the train and notification of designated railroad personnel; and
(6) Information needed to prevent unintentional interference with the proper functioning of onboard train control equipment.
(b)
(c)
(1) The PSP must identify all safety hazards to be mitigated by the locomotive engineer.
(2) The PSP must address and describe the training required with provisions for the maintenance of skills proficiency. As a minimum, the training program must:
(i) As described in § 236.923(a)(2), develop failure scenarios which incorporate the safety hazards identified in the PSP, including the return of train operations to a fully manual mode;
(ii) Provide training, consistent with § 236.923(a), for safe train operations under all failure scenarios and identified safety hazards that affect train operations;
(iii) Provide training, consistent with § 236.923(a), for safe train operations under manual control; and
(iv) Consistent with § 236.923(a), ensure maintenance of manual train operating skills by requiring manual starting and stopping of the train for an appropriate number of trips and by one or more of the following methods:
(A) Manual operation of a train for a 4-hour work period;
(B) Simulated manual operation of a train for a minimum of 4 hours in a Type I simulator as required; or
(C) Other means as determined following consultation between the railroad and designated representatives of the affected employees and approved by the FRA. The PSP must designate the appropriate frequency when manual operation, starting, and stopping must be conducted, and the appropriate frequency of simulated manual operation.
(a)
(b)
(2) Instruction for roadway workers must ensure recognition of processor-based signal and train control equipment on the wayside and an understanding of how to avoid interference with its proper functioning.
(3) Instructions concerning the recognition of system failures and the provision of alternative methods of on-track safety in case the train control system fails, including periodic practical exercises or simulations and operational testing under part 217 of this chapter to ensure the continued capability of roadway workers to be free from the danger of being struck by a moving train or other on-track equipment.
The safety-critical performance of each product for which risk assessment is required under this part must be assessed in accordance with the following criteria or other criteria if demonstrated to the Associate Administrator for Safety to be equally suitable:
(a)
(b)
(c)
(d)
(1) Track plan infrastructure;
(2) Total number of trains and movement density;
(3) Train movement operational rules, as enforced by the dispatcher and train crew behaviors;
(4) Wayside subsystems and components; and
(5) Onboard subsystems and components.
(e)
(f)
(2) MTTHE compliance verification and validation must be based on the assessment of the design for verification and validation process, historical performance data, analytical methods and experimental safety-critical performance testing performed on the subsystem or component. The compliance process must be demonstrated to be compliant and consistent with the MTTHE metric and demonstrated to have a high degree of confidence.
(g)
(2) MTTHE compliance verification and validation must be based on the assessment of the design for verification and validation process, historical performance data, analytical methods and experimental safety-critical performance testing performed on the subsystem or component. The non-processor-based quantification compliance must be demonstrated to have a high degree of confidence.
(h)
(2) The railroad shall document any assumptions regarding human performance. The documentation shall be in such a form as to facilitate later comparisons with in-service experience.
(3) The railroad shall document any assumptions regarding software defects. These assumptions shall be in a form which permits the railroad to project the likelihood of detecting an in-service software defect. These assumptions shall be documented in such a form as to permit later automated comparisons with in-service experience.
(4) The railroad shall document all of the identified safety-critical fault paths. The documentation shall be in such a form as to facilitate later comparisons with in-service faults.
(a)
(1) Address each area of paragraph (b) of this appendix, explaining how such objectives are addressed or why they are not relevant, and
(2) Employ a validation and verification process pursuant to paragraph (c) of this appendix.
(b)
(1)
(2)
(3)
(ii) There shall be no single point failures in the product that can result in hazards categorized as unacceptable or undesirable. Occurrence of credible single point failures that can result in hazards must be detected and the product must achieve a known safe state before falsely activating any physical appliance.
(iii) If one non-self-revealing failure combined with a second failure can cause a hazard that is categorized as unacceptable or undesirable, then the second failure must be detected and the product must achieve a known safe state before falsely activating any physical appliance.
(4)
(5)
(i) Electrical influences such as power supply anomalies/transients, abnormal/improper input conditions (
(ii) Mechanical influences such as vibration and shock; and
(iii) Climatic conditions such as temperature and humidity.
(6)
(7)
(8)
(9)
(c)
(2) U.S. Department of Defense Military Standard (MIL-STD) 882C, “System Safety Program Requirements” (January 19, 1993), is recognized as providing appropriate risk analysis processes for incorporation into verification and validation standards.
(3) The following standards designed for application to processor-based signal and train control systems are recognized as acceptable with respect to applicable elements of safety analysis required by subpart H of this part. The latest versions of the standards listed below should be used unless otherwise provided.
(i) IEEE 1483-2000, Standard for the Verification of Vital Functions in Processor-Based Systems Used in Rail Transit Control.
(ii) CENELEC Standards as follows:
(A) EN50126: 1999, Railway Applications: Specification and Demonstration of
(B) EN50128 (May 2001), Railway Applications: Software for Railway Control and Protection Systems;
(C) EN50129: 2003, Railway Applications: Communications, Signaling, and Processing Systems-Safety Related Electronic Systems for Signaling; and
(D) EN50155:2001/A1:2002, Railway Applications: Electronic Equipment Used in Rolling Stock.
(iii) ATCS Specification 140, Recommended Practices for Safety and Systems Assurance.
(iv) ATCS Specification 130, Software Quality Assurance.
(v) AAR-AREMA 2005 Communications and Signal Manual of Recommended Practices, Part 17.
(vi) Safety of High Speed Ground Transportation Systems. Analytical Methodology for Safety Validation of Computer Controlled Subsystems. Volume II: Development of a Safety Validation Methodology. Final Report September 1995. Author: Jonathan F. Luedeke, Battelle. DOT/FRA/ORD-95/10.2.
(vii) IEC 61508 (International Electrotechnical Commission), Functional Safety of Electrical/Electronic/Programmable/Electronic Safety (E/E/P/ES) Related Systems, Parts 1-7 as follows:
(A) IEC 61508-1 (1998-12) Part 1: General requirements and IEC 61508-1 Corr. (1999-05) Corrigendum 1-Part 1:General Requirements.
(B) IEC 61508-2 (2000-05) Part 2: Requirements for electrical/electronic/programmable electronic safety-related systems.
(C) IEC 61508-3 (1998-12) Part 3: Software requirements and IEC 61508-3 Corr.1(1999-04) Corrigendum 1-Part3: Software requirements.
(D) IEC 61508-4 (1998-12) Part 4: Definitions and abbreviations and IEC 61508-4 Corr.1(1999-04) Corrigendum 1-Part 4: Definitions and abbreviations.
(E) IEC 61508-5 (1998-12) Part 5: Examples of methods for the determination of safety integrity levels and IEC 61508-5 Corr.1 (1999-04) Corrigendum 1 Part 5: Examples of methods for determination of safety integrity levels.
(F) IEC 61508-6 (2000-04) Part 6: Guidelines on the applications of IEC 61508-2 and -3.
(G) IEC 61508-7 (2000-03) Part 7: Overview of techniques and measures.
(4) Use of unpublished standards, including proprietary standards, is authorized to the extent that such standards are shown to achieve the requirements of this part. However, any such standards shall be available for inspection and replication by FRA and for public examination in any public proceeding before the FRA to which they are relevant.
(a)
(b)
(2) The supplier shall provide the reviewer access to any and all documentation that the reviewer requests and attendance at any design review or walkthrough that the reviewer determines as necessary to complete and accomplish the third party assessment. The reviewer may be accompanied by representatives of FRA as necessary, in FRA's judgment, for FRA to monitor the assessment.
(c)
(d)
(2) The reviewer shall analyze all Fault Tree Analyses (FTA), Failure Mode and Effects Criticality Analysis (FMECA), and other hazard analyses for completeness, correctness, and compliance with the railroad's RSPP.
(e)
(f)
(2) The reviewer shall prepare a final report of the assessment. The report shall be submitted to the railroad prior to the commencement of installation testing and contain at least the following information:
(i) Reviewer's evaluation of the adequacy of the PSP, including the supplier's MTTHE and risk estimates for the product, and the supplier's confidence interval in these estimates;
(ii) Product vulnerabilities which the reviewer felt were not adequately mitigated, including the method by which the railroad would assure product safety in the event of a hardware or software failure (
(iii) A clear statement of position for all parties involved for each product vulnerability cited by the reviewer;
(iv) Identification of any documentation or information sought by the reviewer that was denied, incomplete, or inadequate;
(v) A listing of each RSPP procedure or process which was not properly followed;
(vi) Identification of the software verification and validation procedures for the product's safety-critical applications, and the reviewer's evaluation of the adequacy of these procedures;
(vii) Methods employed by the product manufacturer to develop safety-critical software, such as use of structured language, code checks, modularity, or other similar generally acceptable techniques; and
(viii) Method by which the supplier or railroad addresses comprehensiveness of the product design which considers the safety elements listed in paragraph (b) of appendix C to this part.
(a)
(b)
(c)
(1)
(i) The system must require an operator to initiate action to operate the train and require an operator to remain “in-the-loop” for at least 30 minutes at a time;
(ii) The system must provide timely feedback to an operator regarding the system's automated actions, the reasons for such actions, and the effects of the operator's manual actions on the system;
(iii) The system must warn operators in advance when they require an operator to take action; and
(iv) HMI design must equalize an operator's workload.
(2)
(3)
(i) HMI design must minimize an operator's information processing load. To minimize information processing load, the designer shall:
(A) Present integrated information that directly supports the variety and types of decisions that an operator makes;
(B) Provide information in a format or representation that minimizes the time required to understand and act; and
(C) Conduct utility tests of decision aids to establish clear benefits such as processing time saved or improved quality of decisions.
(ii) HMI design must minimize the load on an operator's memory.
(A) To minimize short-term memory load, the designer shall integrate data or information from multiple sources into a single format or representation (“chunking”) and design so that three or fewer “chunks” of information need to be remembered at any one time.
(B) To minimize long-term memory load, the designer shall design to support recognition memory, design memory aids to minimize the amount of information that must be recalled from unaided memory when making critical decisions, and promote active processing of the information.
(4)
(i) Design systems that anticipate possible user errors and include capabilities to catch errors before they propagate through the system;
(ii) Conduct cognitive task analyses prior to designing the system to better understand the information processing requirements of operators when making critical decisions; and
(iii) Present information that accurately represents or predicts system states.
(d)
(1)
(i) Locate displays as close as possible to the controls that affect them;
(ii) Locate displays and controls based on an operator's position;
(iii) Arrange controls to minimize the need for the operator to change position;
(iv) Arrange controls according to their expected order of use;
(v) Group similar controls together;
(vi) Design for high stimulus-response compatibility (geometric and conceptual);
(vii) Design safety-critical controls to require more than one positive action to activate (
(viii) Design controls to allow easy recovery from error.
(2)
(i) Display information in a manner which emphasizes its relative importance;
(ii) Comply with the ANSI/HFS 100-1988 standard;
(iii) Design for display luminance of the foreground or background of at least 35 cd/m
(iv) Design the interface to display only the information necessary to the user;
(v) Where text is needed, using short, simple sentences or phrases with wording that an operator will understand;
(vi) Use complete words where possible; where abbreviations are necessary, choose a commonly accepted abbreviation or consistent method and select commonly used terms and words that the operator will understand;
(vii) Adopt a consistent format for all display screens by placing each design element in a consistent and specified location;
(viii) Display critical information in the center of the operator's field of view by placing items that need to be found quickly in the upper left hand corner and items which are not time-critical in the lower right hand corner of the field of view;
(ix) Group items that belong together;
(x) Design all visual displays to meet human performance criteria under monochrome conditions and add color only if it will help the user in performing a task, and use color coding as a redundant coding technique;
(xi) Limit the number of colors over a group of displays to no more than seven;
(xii) Design warnings to match the level of risk or danger with the alerting nature of the signal;
(xiii) With respect to information entry, avoid full QWERTY keyboards for data entry; and
(xiv) Use digital communications for safety-critical messages between the locomotive engineer and the dispatcher.
(e)
(i) Knowledge of the operator's train location relative to relevant entities;
(ii) Knowledge of the type and importance of relevant entities;
(iii) Understanding of the evolution of the situation over time;
(iv) Knowledge of the roles and responsibilities of relevant entities; and
(v) Knowledge of expected actions of relevant entities.
(2) HMI design must support response selection and scheduling.
(3) HMI design must support contingency planning.