Animal and Plant Health Inspection Service
Foreign Agricultural Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
Indian Health Service
Customs and Border Protection Bureau
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
Employment and Training Administration
Federal Aviation 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.
Grain Inspection, Packers and Stockyards Administration, USDA.
Interim final rule with request for comments.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) is amending regulations under the United States Grain Standards Act (USGSA) to waive the mandatory inspection and weighing requirements of the Act for high quality specialty grains exported in containers. GIPSA is establishing this waiver to facilitate the marketing of high quality specialty grains exported in containers. This action is consistent with the objectives of the USGSA. This action will facilitate the continuing development of the high quality specialty export market. This waiver will be in effect for a maximum of 5 years, and if after this time period GIPSA determines that this waiver continues to advance the objectives of the USGSA, GIPSA will consider making this waiver permanent.
Effective April 29, 2005; comments received by June 27, 2005 will be considered prior to issuance of a final rule. Pursuant to the Paperwork Reduction Act, comments on the information collection and recordkeeping requirements burden must be received by June 27, 2005.
We invite you to submit comments on this interim final rule. You may submit comments by any of the following methods:
•
•
•
•
•
• Please send comments regarding the information collection and recordkeeping requirements via electronic mail to:
John Sharpe, Director, Compliance Division, at his e-mail address:
The USGSA authorizes the Department to waive the mandatory inspection and weighing requirements of the USGSA in circumstances when the objectives of the USGSA would not be impaired. Current waivers from the official inspection and Class X weighing requirements for export grain appear in section 7 CFR part 800.18 of the regulations. These waivers are provided for grain exported for seeding purposes, grain shipped in bond, grain exported by rail or truck to Canada or Mexico, grain not sold by grade, for exporters and individual elevator operators shipping less than 15,000 metric tons during the current and preceding calendar year, and when services is not available or in emergency situations.
This interim final rule provides a waiver for high quality specialty grains exported in containers.
Transactions involving high quality specialty grains are typically made between dedicated buyers and sellers who have ongoing business relationships and fully understand each other's specific needs and capabilities. Containerization allows the producer or processor to extend control of the product from the field to customer, rather than fields to local terminal elevators or export port elevators where commingling can occur.
The high quality specialty grain market has evolved for the past years as U.S. shippers have catered to the specific needs of buyers around the world. Frequently, sales are for small volumes of grain meeting strict commercial contract specifications for quality, production, handling, and packaging. Seller and buyers in this specialty market typically refer to these grains as “food quality” grain. The contractual specifications may require a single or limited number of seed varieties; may require production in accordance with specific agronomic practices; may specify certain harvesting and handling practices; may require cleaning and sorting of the grain to remove most foreign material and immature or damaged seeds; and frequently call for some degree of identity preservation from point of origin to final buyer. The quality management processes employed by participants of the high quality specialty grain market far exceed those practiced by the typical commodity grain market where commingling and blending of different quality grains is an inherent part of the marketing process. In return, the market value of these high quality specialty grains is substantially higher than commodity grain.
Traditionally, shippers of high quality specialty grain in containers handled less than 15,000 metric tons of grain annually and thereby, were exempt from mandatory inspection and weighing in accordance with Section 800.18(b) of the regulations under the USGSA. However, as the high quality specialty grain market has grown volumes have begun to exceed the 15,000 metric ton waiver threshold requiring shippers to have their high quality specialty grains inspected and weighed in accordance with the Act. The cost of official inspection and weighing for these specialty operations is approximately $1.80 per metric ton compared to an
High quality specialty grain for the purposes of this waiver is grain sold under contract terms that (1) specify quality better than the grade limits for U.S. No. 1 grain, or (2) specify “organic” as defined by the regulations 7 CFR part 205 under the Organic Foods Production Act of 1990, as amended. The following are examples of what GIPSA would consider to be high quality specialty grains: Corn with broken corn limits of 0.5 percent or less; post-harvest, pesticide-free corn; and organically grown soybeans. The following would not meet GIPSA's definition of high quality specialty grain: U.S. No. 2 or better Yellow soybeans grown in a particular geographic area; U.S. No. 2 or better Soft White wheat with maximum 10.5 percent protein and minimum Falling Number of 300 seconds; and non-genetically modified corn.
This waiver will not prevent the buyer or seller from requesting and receiving official inspection and weighing service should they desire such services. Moreover, this waiver will be in affect for a maximum of 5 years and if after this time period GIPSA determines that this waiver continues to advance the objectives of the USGSA, GIPSA will consider making this waiver permanent. GIPSA will monitor this waiver of official inspection and weighing requirements; however, if at any time, GIPSA determines that this waiver is not consistent with the objectives of the Act, GIPSA will remove this waiver.
Pursuant to 5 U.S.C 553, it is found and determined upon good cause that it is impracticable, unnecessary, and contrary to public interest to give preliminary notice prior to putting this rule in effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
This interim final rule has been determined not to be significant for the purpose of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB). This rule would provide regulatory relief to both large and small businesses. Small agricultural service firms have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those that employ fewer than 500 employees. This action would effectively eliminate the cost impact on small businesses that would otherwise have to pay for onsite inspection and weighing.
In addition, pursuant to requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601
The growing market for high quality specialty grain exported in containers has caused shippers of high quality specialty grains to exceed the 15,000 metric ton waiver threshold for export inspection and weighing. GIPSA posed this situation to its Advisory Committee on November 16, 2004. GIPSA's Advisory Committee is composed of members representing producers, handlers, processors, and exporters. The Advisory Committee resolved that GIPSA should continue to enforce the mandatory export inspection and weighing requirements for commodity grains and establish a waiver for high quality specialty grains exported in containers. GIPSA believes that waiving high quality specialty grains exported in containers is consistent with the intent of the USGSA and will allow this market to continue to grow.
Various methods were considered to address the challenges facing U.S. high quality specialty grain producers, marketers, processors, and handlers exporting via containers from global competition. GIPSA looked at requiring relaxed inspection and weighing requirements for these grains and decided that they would still place an undue burden on these types of shipments.
This rule will allow exporters of high quality specialty grains shipped in containers to ship such grain without the burden of mandatory inspection and weighing, while allowing them to request the service when desired. Relieving this burden will allow the industry to grow and equitably compete with global competitors.
This rule poses minimal additional cost to exporters as explained below in the Paperwork Reduction Act section of this rule. However, this rule eliminates the cost of the mandatory export inspection and weighing requirements for high quality specialty grain exported in containers. GIPSA estimates this cost to be at $1.80 per metric ton of grain exported and GIPSA believes that the benefits of this rule outweighs the cost.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this rule announces that GIPSA has requested emergency approval for a new information collection request that waives high quality specialty grain exported in containers from the mandatory inspection and weighing requirements outlined in the United States Grain Standards Act. The emergency clearance is necessary because insufficient time is available to follow normal clearance procedures. OMB has approved this emergency information collection request under OMB Control No. 0580-0022.
GIPSA is committed to compliance with the GPEA, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
Traditionally, shippers of high quality specialty grain in containers handled less than 15,000 metric tons of grain
To ensure that exporters of high quality specialty grains comply with this waiver, GIPSA is asking these exporters to maintain records generated during their normal course of business that pertain to these shipments and make these documents available to the GIPSA upon request, for review or copying purposes. GIPSA is not requiring exporters of high quality specialty grains to complete or submit new Federal government record(s), form(s), or report(s). GIPSA is requesting exporters to maintain and make available documentation that fully and correctly disclose transactions concerning high quality specialty grain exported in containers. These records shall be maintained for a period of 3 years. This information collection requirement in this request is essential to ensure that exporters who ship high quality specialty grain in containers comply with the waiver.
The Paperwork Reduction Act requires the Agency to measure recordkeeping burden. Under this interim final rule, exporters must maintain records generated during the normal course of business. Experience has shown that the U.S. grain industry maintains grain contracts which specify quality parameters agreed to by buyers and sellers of grain. GIPSA believes that grain contracts would provide sufficient information to determine if exporters of high quality specialty grain are complying with the waiver. GIPSA made estimates regarding the number of entities who would likely export high quality specialty grain. Because GIPSA has no basis to determine the number of prospective exporters of high quality specialty grain, GIPSA drew upon its oversight experience of the U.S. grain industry and believes that the overall estimates presented in this interim final rule are accurate. GIPSA estimates that approximately 80 organizations will export high quality specialty grain in containers. GIPSA estimates that the time required for each exporter to maintain and make available contractual information in a manner consistent with this rule is an average of 5-hours per year at $5.50 per hour for a total annual burden of $27.50 per exporter. Assuming that the estimated 80 exporters of high quality specialty grain in containers provide GIPSA's this contractual information, the total annual burden is estimated to be $2,200.
Comments are invited on: (1) Whether maintaining and providing contractual information is necessary to ensure compliance with the waiver; (2) The accuracy of the Agency's burden estimates for respondents to maintain and provide contractual information including the validity of the methodology and assumptions used; and (3) Ways to minimize burden of maintaining and providing contractual information on those respondents, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Please send comments regarding the information collection and recordkeeping requirements via electronic mail to:
Executive Order 12988, Civil Justice Reform, instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This interim final rule has been reviewed under this Executive Order. This interim final rule is not intended to have a retroactive effect. The United States Grain Standards Act provides in Section 87g that no State or subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act. Otherwise, this interim final rule will not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this interim final rule.
To provide waivers from official inspection and Class X weighing for exporters of high quality specialty grains shipped in containers, GIPSA, under the United States Grain Standards Act, is:
1. Revising section 800.0 to include a definition of high quality specialty grains.
2. Revising section 800.18 to include a new paragraph (b)(8) to exempt high quality specialty grain shipped in containers from mandatory export inspection and weighing requirements.
Administrative practice and procedure, Export, Grain
Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C. 71
(b) * * *
(44) High Quality Specialty Grain. Grain sold under contract terms that specify quality better than the grade limits for U.S. No. 1 grain, or specify “organic” as defined by 7 CFR Part 205. This definition expires July 31, 2010.
(b) * * *
(8) High quality specialty grain shipped in containers. Official inspection and weighing requirements do not apply to high quality specialty grain exported in containers. Records generated during the normal course of business that pertain to these shipments shall be made available to the Service upon request, for review or copying. These records shall be maintained for a
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; correction.
The FAA is correcting a typographical error in an existing airworthiness directive (AD) that was published in the
Effective April 18, 2005.
The AD docket contains the proposed AD, comments, and any final disposition. You can examine the AD docket on the Internet at
Richard Spencer, Aerospace Engineer, Boston Aircraft Certification Office, ANE-150, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7184; fax (781) 238-7170.
On March 2, 2005, the FAA issued AD 2005-05-17, amendment 39-14006 (70 FR 12401, March 14, 2005), for Boeing Model 737-300, -400, and -500 series airplanes modified in accordance with Supplemental Type Certificate (STC) ST00127BO. The AD requires installation of bonding straps to the safe side harnesses of the digital transient suppression device of the fuel quantity indicating system.
As published, paragraph (g) of the AD specifies that, “As of the effective date of this AD, no person may install a safe side harness, Part Number 50357-01XX, on any airplane, unless that safe side harness has been modified in accordance with Goodrich Service Bulletin 737-300766-28-2, Revision 2, dated July 28, 2004.” We have determined that 50357-01XX is not an existing part number, and that the correct part number is 50367-01XX.
No other part of the regulatory information has been changed; therefore, the final rule is not republished in the
The effective date of this AD remains April 18, 2005.
In the
(g) As of the effective date of this AD, no person may install a safe side harness, Part Number 50367-01XX, on any airplane, unless that safe side harness has been modified in accordance with Goodrich Service Bulletin 737-300766-28-2, Revision 2, dated July 28, 2004.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
This amendment supersedes an existing airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), MD-88, and MD-90-30 airplanes. The existing AD currently requires repetitive inspections to detect cracking of the main landing gear (MLG) shock strut pistons, and replacement of a cracked piston with a new or serviceable part. This amendment removes certain airplanes but requires that the existing inspections, and corrective actions if necessary, be accomplished on additional MLG shock strut pistons. This amendment also requires replacing the MLG shock strut pistons with new improved parts, which would terminate the repetitive inspections. The actions specified by this AD are intended to prevent fatigue cracking of the MLG pistons, which could result in failure of the pistons and consequent damage to the airplane structure or injury to airplane occupants. This action is intended to address the identified unsafe condition.
Effective June 2, 2005.
The incorporation by reference of Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001, as listed in the regulations, is approved by the Director of the Federal Register as of June 2, 2005.
The incorporation by reference of Boeing Service Bulletin MD80-32-309, Revision 01, dated April 25, 2001, as listed in the regulations, was approved previously by the Director of the Federal Register as of June 20, 2002 (67 FR 34823, May 16, 2002).
The incorporation by reference of McDonnell Douglas Alert Service Bulletin MD80-32A308, dated March 5, 1998; and McDonnell Douglas Alert Service Bulletin MD80-32A308, Revision 01, dated May 12, 1998; as listed in the regulations; was approved
The service information referenced in this AD may be obtained from Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Mike Lee, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5325; fax (562) 627-5210.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-13-07, amendment 39-11201 (64 FR 33392, June 23, 1999), which is applicable to certain McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), MD-88, and MD-90-30 airplanes, was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter requests that we revise the “Alternative Methods of Compliance” paragraph of the proposed AD to specify that an AMOC previously approved for AD 2002-10-03, amendment 39-12749 (67 FR 34823, May 16, 2002), is also approved as an AMOC for the proposed AD. The commenter notes that this AMOC addresses assigning flight cycle counts to MLG shock strut pistons and states that this AMOC would also be applicable to the proposed AD.
We concur with the commenter's request and have revised paragraph (l)(2) of this AD to give credit for AMOCs approved for AD 2002-10-03.
The same commenter requests that we revise paragraph (b) of the proposed AD to specify that only an MLG shock strut piston having part number (P/N) 5935347-517 is an acceptable replacement. The commenter states that paragraphs (b) and (j) of the proposed AD contradict one another in this regard. The commenter observes that paragraph (b) allows installation of a piston having P/N 5935347-511 as an approved replacement part (in accordance with Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001). However, paragraph (j) of the proposed AD states that an MLG shock strut piston having P/N 5935347-1 through -509 inclusive, 5935347-511, 5935347-513, or SR09320081-3 through -13 inclusive, cannot be installed after the effective date of the AD.
We partially agree with the commenter's request. We note that paragraph (b) of this AD is part of a restatement of the requirements of AD 99-13-07. When AD 99-13-07 was issued, a new or serviceable MLG shock strut piston of any approved P/N was an acceptable replacement part. Paragraph (j) is a new requirement of this AD, and the requirements of that paragraph reflect the main purpose of this new AD, which is to require replacing the MLG shock strut pistons with new, improved parts. Thus, we do not agree that paragraph (b) and (j) contradict each other. Rather, paragraph (j) of this AD restricts the P/Ns that may be installed when paragraph (b) is done after the effective date of this AD. However, we agree that it is acceptable to clarify paragraph (b) to state that only an MLG shock strut piston having P/N 5935347-517 may be installed after the effective date of this AD. We have revised paragraph (b) of this AD accordingly.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
There are approximately 1,364 airplanes of the affected design in the worldwide fleet. The FAA estimates that 849 airplanes of U.S. registry will be affected by this AD.
The inspections that are currently required by AD 99-13-07 take approximately 4 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the new inspections that are required by this AD take approximately 4 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. The cost impact of these new inspections on U.S. operators is estimated to be $220,740, or $260 per airplane, per inspection cycle.
The other costs associated with this AD are carried over from the existing AD which is being superseded and are not new or additional costs. The impact of these existing costs were covered in the rulemaking for that AD.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. The manufacturer may cover the cost of replacement parts associated with this AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this AD. As a result, the costs attributable to this AD may be less than stated above.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701,
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent fatigue cracking of the main landing gear (MLG) pistons, which could result in failure of the pistons and consequent damage to the airplane structure or injury to airplane occupants, accomplish the following:
(a) For airplanes equipped with an MLG shock strut piston having part number (P/N) 5935347-1 through -509 inclusive, 5935347-511, or 5935347-513: Perform fluorescent dye penetrant and fluorescent magnetic particle inspections to detect cracking of an MLG shock strut piston, in accordance with McDonnell Douglas Alert Service Bulletin MD80-32A308, dated March 5, 1998, or Revision 01, dated May 12, 1998; or Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001 (for Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes). Perform the inspections at the later of the times specified in paragraphs (a)(1) and (a)(2) of this AD.
(1) Prior to the accumulation of 10,000 total landings on an MLG shock strut piston, or within 6 months after July 28, 1999 (the effective date of AD 99-13-07, amendment 39-11201), whichever occurs later.
(2) Within 2,500 landings after a major overhaul and initial inspection of the MLG shock strut piston accomplished prior to July 28, 1999, in accordance with McDonnell Douglas All Operator Letter 9-2153 (for Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes).
(b) For airplanes equipped with an MLG shock strut piston having P/N 5935347-1 through -509 inclusive, 5935347-511, or 5935347-513: Condition 1. If any cracking is detected, prior to further flight, replace any cracked MLG shock strut piston with a new or serviceable piston, in accordance with McDonnell Douglas Alert Service Bulletin MD80-32A308, dated March 5, 1998, or Revision 01, dated May 12, 1998; or Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001 (for Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes). Thereafter, repeat the inspections required by paragraph (a) of this AD prior to the accumulation of 10,000 total landings on the MLG shock strut piston. After the effective date of this AD, only an MLG shock strut piston having P/N 5935347-517 may be installed in accordance with this paragraph.
(c) For airplanes equipped with an MLG shock strut piston having P/N 5935347-1 through -509 inclusive, 5935347-511, or 5935347-513: Condition 2. If no cracking is detected, repeat the fluorescent dye penetrant and fluorescent magnetic particle inspections thereafter at intervals not to exceed 2,500 landings, in accordance with McDonnell Douglas Alert Service Bulletin MD80-32A308, dated March 5, 1998, or Revision 01, dated May 12, 1998; or Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001 (for Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes); as applicable; until the replacement required by paragraph (h) of this AD has been accomplished.
(d) For inspections accomplished after the effective date of this AD: Where this AD requires fluorescent penetrant and magnetic particle inspections, accomplishment of the fluorescent penetrant inspection must precede accomplishment of the magnetic particle inspection.
(e) For any MLG piston having P/N SR09320081-3 through -13 inclusive: Perform fluorescent penetrant and magnetic particle inspections to detect fatigue cracking of the MLG pistons, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001. Do the initial inspections at the later of the times specified in paragraphs (e)(1) and (e)(2) of this AD. Repeat the inspections thereafter at intervals not to exceed 2,500 landings, until the requirements of paragraph (f) or (h) of this AD have been accomplished.
(1) Prior to the accumulation of 10,000 total landings on the MLG piston.
(2) Within 6 months after the effective date of this AD.
(f) For airplanes equipped with an MLG shock strut piston having P/N SR09320081-3 through -13 inclusive: If any cracking is detected during the inspections required by paragraph (e) of this AD, prior to further flight, replace any cracked MLG shock strut piston with a new or serviceable improved assembly, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001. Such replacement terminates the repetitive inspections required by paragraph (e) of this AD for the replaced shock strut piston only.
(g) Where Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001, specifies to contact Boeing-Long Beach for disposition of certain repair conditions: Before further flight, repair per a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. For a repair method to be approved by the Manager, Los Angeles ACO, as required by
(h) Replace the MLG shock strut piston assemblies, left- and right-hand sides, with new or serviceable improved assemblies, in accordance with the Accomplishment Instructions of Boeing Service Bulletin MD80-32-309, Revision 01, dated April 25, 2001. Do this replacement at the applicable compliance time specified in paragraph (h)(1) or (h)(2) of this AD. Such replacement terminates the repetitive inspections required by this AD. If the MLG shock strut piston is not serialized, or the number of landings on the piston cannot be conclusively determined, consider the total number of landings on the piston assembly to be equal to the total number of landings accumulated by the airplane with the highest total number of landings in the operator's fleet.
(1) For airplanes listed in Boeing Service Bulletin MD80-32-309, Revision 01, dated April 25, 2001: Do the replacement before the accumulation of 30,000 total landings on the MLG shock strut piston assemblies, or within 5,000 landings after June 20, 2002 (the effective date of AD 2002-10-03, amendment 39-12749), whichever occurs later.
(2) For airplanes other than those identified in paragraph (h)(1) of this AD: Do the replacement before the accumulation of 30,000 total landings on the MLG shock strut piston assemblies, or within 5,000 landings after the effective date of this AD, whichever occurs later.
Paragraph (a) of AD 2002-10-03, amendment 39-12749, requires the same actions as paragraph (h) of this AD.
(i) Accomplishment of the replacement specified in Boeing Service Bulletin MD80-32-309, dated January 31, 2000, before June 20, 2002, is considered acceptable for compliance with the requirement of paragraph (h) of this AD.
(j) As of the effective date of this AD, no person may install an MLG shock strut piston having P/N 5935347-1 through -509 inclusive, 5935347-511, 5935347-513, or SR09320081-3 through -13 inclusive, on any airplane.
(k) Although Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001, specifies to submit certain inspection results to the manufacturer, this AD does not include such a requirement.
(l)(1) In accordance with 14 CFR 39.19, the Manager, Los Angeles ACO, is authorized to approve alternative methods of compliance for this AD.
(2) Alternative methods of compliance, approved previously per AD 99-13-07, amendment 39-11201, and AD 2002-10-03, amendment 39-12749, are approved as alternative methods of compliance for the corresponding requirements of this AD.
(m) Unless otherwise specified in this AD, the actions shall be done in accordance with the service bulletins listed in Table 1 of this AD.
(1) The incorporation by reference of Boeing Alert Service Bulletin MD80-32A308, Revision 04, dated June 12, 2001, is approved by the Director of the Federal Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(2) The incorporation by reference of Boeing Service Bulletin MD80-32-309, Revision 01, dated April 25, 2001, was approved previously by the Director of the Federal Register as of June 20, 2002 (67 FR 34823, May 16, 2002).
(3) The incorporation by reference of McDonnell Douglas Alert Service Bulletin MD80-32A308, dated March 5, 1998; and McDonnell Douglas Alert Service Bulletin MD80-32A308, Revision 01, dated May 12, 1998; was approved previously by the Director of the Federal Register as of July 28, 1999 (64 FR 33392, June 23, 1999).
(4) To get copies of this service information, go to Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). To inspect copies of this service information, go to the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; to the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California; or to the National Archives and Records Administration (NARA). For information on the availability of this material at the NARA, call (202) 741-6030, or go to
(n) This amendment becomes effective on June 2, 2005.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is implementing approved measures contained in Amendment 2 to the Monkfish Fishery Management Plan (FMP). Amendment 2 was developed to address essential fish habitat (EFH) and bycatch issues, and to revise the FMP to address several issues raised during the public scoping process. This rule implements the
Effective May 1, 2005.
Copies of Amendment 2, its Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), and the Final Supplemental Environmental Impact Statement (FSEIS) are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council (NEFMC), 50 Water Street, Newburyport, MA 01950. The document is also available online at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to Patricia A. Kurkul at the above address and by e-mail to
Allison R. Ferreira, Fishery Policy Analyst, (978) 281-9103; fax (978) 281-9135; e-mail
This final rule implements measures contained in Amendment 2 to the FMP, which was partially approved by NMFS on behalf of the Secretary of Commerce (Secretary) on March 30, 2005. A proposed rule for this action was published on January 14, 2005 (70 FR 2586), with public comments accepted through February 14, 2005. The public comment period was reopened for 10 days on February 24, 2005 (70 FR 9029), because the qualification period for the proposed modification to the monkfish limited entry program was incorrectly described in the preamble to the proposed rule. The details on the development of Amendment 2 were contained in the preamble of the proposed rule and are not repeated here. In the proposed rule, NMFS requested public comment on all proposed measures, but specifically asked for comment on the measure to provide owners of limited access monkfish vessels with a one-time opportunity to reset their vessel's monkfish permit baseline characteristics to be the characteristics of the vessel first issued a Federal limited access permit, rather than the characteristics of the vessel at the time it was issued a monkfish limited access permit under the initial FMP. After considering public comments on this measure and the other measures contained in Amendment 2, NMFS, on behalf of the Secretary, has disapproved the monkfish baseline modification measure. Furthermore, NMFS is rejecting the Councils' determination and analysis with respect to the bycatch reporting methodology contained in Amendment 2, and is sending that portion of Amendment 2 back to the Councils for further consideration, development, and analysis in light of concerns raised in a recent Federal court decision in
A process for providing a monkfish limited access vessel owner with a one-time opportunity to reset their vessel's monkfish permit baseline characteristics to be the characteristics of the vessel first issued a Federal limited access permit was proposed in Amendment 2. This proposed management measure has been disapproved because it does not comply with National Standard 7 of the Magnuson-Stevens Fishery Conservation and Management (Magnuson-Stevens Act). National Standard 7 of the Magnuson-Stevens Act states, “Conservation and management shall, where practicable, minimize costs and avoid unnecessary duplication.” Further, the regulatory guidelines for implementing National Standard 7 found at 50 CFR 600.340(d) state, “The supporting analysis for FMPs should demonstrate that the benefits of fishery regulations are real and substantial relative to the added research, administrative, and enforcement, as well as costs to the industry of compliance.” This proposed measure would only have addressed the multiple baseline issue with respect to the monkfish fishery, creating the need to address separately similar measures in other FMPs in order to fully address the larger issue of multiple baselines across all fisheries. Handling the multiple baseline issue in such a piece-meal manner would require the Councils and NMFS to develop and implement duplicate measures under each FMP, resulting in unnecessary administrative burden on the Government and on limited access permit holders. Upon implementation of such measures in each FMP, owners of vessels with multiple limited access permits would be required to modify their vessel's baseline for that particular fishery, potentially requiring a vessel owner to change a single vessel's baseline multiple times. Further, the potential benefits associated with addressing the multiple baseline issue in each individual FMP would not be fully realized until measures are implemented in all FMPs having limited access permits. Given the uncertainty of whether any fishing vessels would actually exercise their right to reset their vessel baseline under the baseline modification program proposed in Amendment 2, NMFS has determined that, at this time, the speculative benefits of this measure are not “real and substantial” relative to the added administrative and enforcement costs, as well as the costs to the industry of compliance. It would be more efficient, comprehensive, and less confusing to the public for the Councils to address the vessel baseline issue across all FMPs in an omnibus amendment.
NMFS has approved 10 measures proposed in Amendment 2. A description of the new management measures resulting from the partial approval of Amendment 2 and a summary of additional regulatory changes being made in this final rule are provided below.
Amendment 2 provides owners of vessels that do not possess a monkfish limited access permit with the opportunity to qualify for a new monkfish limited access permit through a modified limited entry program. In order to qualify for a limited access permit under this modified limited entry program, a vessel must demonstrate that it landed the qualifying amount of monkfish in the area south of 38°00′ N. lat. (i.e., at a port located south of 38°00′ N. lat.) during the qualification period of March 15 through June 15, during the years 1995 through 1998. Two permits will be available, depending on the amount of monkfish the vessel landed during the qualification period (the same landings levels that were required for the original monkfish limited access permits). To qualify for a Category G permit, a vessel must demonstrate monkfish landings of at least 50,000 lb (22,680 kg) tail weight during the qualification period. To qualify for a Category H permit, a vessel must demonstrate monkfish landings of at least 7,500 lb (3,402 kg) tail weight during the qualification period. Vessels qualifying for a Category G or H permit will be restricted to fishing on a monkfish DAS south of 38°20′ N. lat. (the initial line was established at 38°00′ N. lat. but revised to 38°20′ N. lat. in response to sea turtle protection measures).
This modified limited entry program is being implemented to provide a renewed opportunity for vessels operating in the southern range of the monkfish fishery to qualify for a limited access monkfish permit since some vessel owners claim they were not adequately notified of the monkfish control date established on February 27, 1995, because they did not possess Federal NE permits. In addition, the southern boundary of the monkfish fishery management unit was initially proposed as the VA/NC border, rather than the NC/SC border, leading some to believe they would not be affected by the FMP.
Amendment 2 establishes an offshore monkfish fishery program that will allow vessels to elect to fish under a monkfish possession limit of 1,600 lb (726 kg) (tail weight) per monkfish DAS when fishing in the Offshore Fishery Program Area under specific conditions, regardless of the possession limit that would otherwise be applicable to that vessel. For a vessel electing to fish in this program, monkfish DAS will be prorated based on a possession limit ratio (the standard permit category possession limit applicable to non-program vessels fishing in the SFMA, divided by 1,600 lb (726 kg) (the possession limit per DAS specified for vessels fishing in the program)), multiplied by the monkfish DAS available to the vessel when fishing in the SFMA.
Vessels electing to fish in this program will be required to fish under the program rules for the entire fishing year and will receive a separate monkfish permit category (Category F). A vessel electing to fish in this program will be allowed to fish its monkfish DAS only within the Offshore Fishery Program Area from October through April. In addition, enrolled vessels will be required to have on board a Vessel Monitoring System (VMS) that is operational during the entire October through April season, and will be subject to the gear requirements applicable to monkfish limited access permit Category A and B vessels.
The Offshore Fishery Program is being implemented to help restore the offshore monkfish fishery that was essentially eliminated by the disapproval of the “running clock” in the original FMP. The running clock provision proposed in the original FMP would have provided vessels with the ability to account for any possession limit overages, provided that the vessel let its monkfish DAS clock run upon returning to port to account for these overages. Without the running clock provision, vessels have been discouraged from fishing in offshore areas under the current restrictive possession limits. Any vessel not electing to fish under this program will still be allowed to fish in the Offshore Fishery Program Area under the rules and regulations applicable to non-program vessels. This program is intended to provide flexibility to the fishing industry without impacting the mortality objectives of the FMP.
The roller gear on all trawl vessels fishing under a monkfish DAS in the SFMA is restricted to a maximum disc diameter of 6 inches (15.2 cm). The purpose of this new management measure is to minimize, to the extent practicable, the adverse impact of monkfish trawl gear on EFH. This measure is specific to the SFMA since it will help ensure that trawl vessels, which are known to be able to target monkfish more successfully with smaller roller gear in the SFMA than in the Northern Fishery Management Area (NFMA), do not fish in areas of more complex bottom characteristics, including the offshore canyon areas.
Vessels fishing on a monkfish DAS are prohibited from fishing in the Oceanographer and Lydonia Canyon closure areas, as defined in Amendment 2, regardless of gear used. The purpose of these closures is to minimize, to the extent practicable, the adverse impact of monkfish fishing on EFH, especially due to the potential impacts associated with the anticipated expansion of the directed offshore monkfish fishery under the Offshore Southern Monkfish Program being implemented in this final rule.
Amendment 2 establishes two programs aimed at encouraging vessels to engage in cooperative monkfish research activities, including, but not limited to: Research to minimize bycatch and interactions of the monkfish fishery with sea turtles and other protected species; research to minimize the impact of the monkfish fishery on EFH; research or experimental fisheries for the purpose of establishing a monkfish trawl exempted fishery (under the NE Multispecies FMP) in the NFMA; research on the biology or population structure and dynamics of monkfish; cooperative surveys; and gear efficiency. The purpose of these two programs is to expand incentives for fishermen to participate in a range of monkfish research and survey activities by reducing the costs associated with conducting the research, and by streamlining the exempted fishing permit (EFP) process.
Under the DAS set-aside program, a pool of 500 monkfish DAS will be set aside to be distributed to vessels for the purpose of participating in cooperative monkfish research projects. These DAS will be obtained by removing 500 DAS from the total monkfish DAS available to the monkfish fleet prior to distribution to individual vessels. This will result in less than one DAS being deducted from each individual vessel allocation annually. For fishing year (FY) 2005, this set-aside will reduce individual vessel DAS allocations by 0.7 DAS. NMFS will publish a Request for Proposals (RFP) and vessels will be required to submit competitive bids to participate in specific research or survey projects. NMFS will then convene a review panel composed of Council members from the Monkfish Oversight
The Regional Administrator (RA) will reallocate any unused research DAS as exempted DAS and provide notice of the reallocation in the
This final rule implements an exemption from certain FMP regulations for vessels that are fishing for monkfish under a High Seas Permit in the NAFO Regulated Area and transiting the Exclusive Economic Zone (EEZ) with monkfish on board or landing monkfish in U.S. ports. Similar to the NAFO waters exemption in the NE Multispecies FMP, monkfish vessels enrolled in the NAFO Regulated Area Exemption Program are exempt from the monkfish regulations pertaining to permit requirements, minimum mesh size, effort control (DAS), and possession limits. Further, monkfish caught from the NAFO Regulated Area will not count against the monkfish total allowable catch, provided: The vessel has on board a letter of authorization issued by the Regional Administrator; except for transiting purposes, the vessel fishes exclusively in the NAFO Regulated Area and does not harvest fish in, or possess fish harvested from, the EEZ; when transiting the EEZ, all gear is properly stowed and not available for immediate use; and the vessel complies with all High Seas Fishing Compliance Permit and NAFO conservation and enforcement measures while fishing in the NAFO Regulated Area. This exemption program provides additional flexibility to monkfish vessels without compromising the mortality objectives of the FMP.
Three adjustments to the monkfish incidental catch limits are implemented through this final rule. The purpose of these adjustments to the incidental catch limits is to minimize regulatory discards without affecting the overall stock rebuilding program. The first adjustment increases the current 50 lb (23 kg) per trip possession limit to be 50 lb (23 kg) per day, or partial day, up to a maximum of 150 lb (68 kg) per trip, for vessels not fishing under a monkfish DAS, NE multispecies, or scallop DAS, and fishing with handgear or small mesh (see below). This possession limit also applies to NE multispecies limited access vessels that hold a Small Vessel Exemption permit when not fishing under a DAS program. Small mesh is defined as mesh smaller than the NE multispecies minimum mesh size requirements applicable to vessels fishing in the GOM and GB Regulated Mesh Areas (RMAs), and the Southern New England (SNE) RMA east of the boundary for the Mid-Atlantic (MA) Exemption Area. For vessels fishing in the SNE and MA RMAs west of the MA Exemption Area boundary, small mesh is defined as mesh smaller than the minimum mesh size applicable to limited access summer flounder vessels.
The second adjustment implements the same incidental monkfish catch limit of 50 lb (23 kg) per day, or partial day, up to a maximum of 150 lb (68 kg) per trip, for vessels fishing with surfclam or ocean quahog hydraulic dredges, and sea scallop vessels (General Category or limited access) not fishing under a scallop DAS with dredge gear. These vessels were previously prohibited from retaining monkfish. For the purposes of these new possession limits, a day is counted starting with the time the vessel leaves port (as recorded in it's Vessel Trip Report), or, if the vessel has an operational VMS, when the vessel crosses the VMS demarcation line. This incidental catch limit has been modified from the proposed rule to include both General Category scallop vessels and limited access scallop vessels not fishing under a scallop DAS since limited access scallop vessels are authorized to fish under the same rules applicable to General Category vessels when not fishing under a scallop DAS, as specified under § 648.52(a). The Amendment 2 document was not clear with respect to whether or not this incidental catch provision should include limited access scallop vessels not fishing under a scallop DAS. However, because limited access scallop vessels must abide by the same provisions as General Category scallop vessels when not fishing under a scallop DAS, NMFS has determined that it was the Councils' intent to include these vessels under this incidental catch limit.
The third monkfish incidental catch limit adjustment is applicable to vessels fishing with large mesh in the SNE or MA RMAs west of the boundary for the NE Multispecies MA Exemption Area. In this area, large mesh is defined as mesh equal to or greater than the minimum mesh size applicable to limited access summer flounder vessels. This adjustment increases the possession limit to 5 percent of the total weight of fish on board, to a maximum of 450 lb (204 kg), based on tail weight.
Amendment 2 reduces the minimum fish size for monkfish in the SFMA to 11 inches (27.9 cm) tail length, 17 inches (43.2 cm) total length, from the current minimum size limit of 14 inches (35.6 cm) tail length, 21 inches (53.3 cm) total length. This change makes the minimum size for the SFMA consistent with the minimum fish size for the NFMA, simplifying the FMP rules and improving enforceability. Minimum fish size regulations have been widely used in FMPs on the basis that they discourage the targeting of small fish, and increase yield-per-recruit if successfully linked to gear with appropriate size-selectivity. Monkfish limited access trawl vessels that are fishing under a combined monkfish/multispecies DAS are authorized to use the minimum regulated mesh size authorized under the NE Multispecies FMP. As a result, these vessels already catch monkfish smaller than the current minimum fish size of 14 inches (35.6 cm) tail length. Until there is sufficient information linking trawl mesh size to the size of monkfish retained, the Councils determined that it is important to minimize the regulatory discards associated with vessels targeting monkfish using minimum regulated groundfish mesh. A reduction in the minimum fish size for the SFMA, while
Amendment 2 eliminates the 20-day block requirement for monkfish limited access Category A and B vessels. NMFS is removing the 20-day block requirement since it imposes an enforcement burden and increases the regulatory burden on monkfish limited access vessels with no apparent biological or economic benefit. This change does not affect the requirement for monkfish limited access vessels that also hold a NE multispecies limited access permit (Category C and D vessels) since these vessels must abide by the NE multispecies 20-day block requirement when fishing under a combined monkfish/multispecies DAS.
Amendment 2 includes three additions to the list of actions that can be taken under the existing framework adjustment procedure, which are as follows: Transferable monkfish DAS programs; measures to minimize the impact of the fishery on endangered or protected species; and measures to implement bycatch reduction devices. Including these additional measures to the list of frameworkable items could reduce the time required to implement such regulations, which otherwise would have to be done through an FMP amendment process.
This final rule implements several editorial revisions to the existing text in 50 CFR 648, subpart F, that are not proposed in Amendment 2. These revisions remove obsolete language (references to regulations in effect during previous fishing years) and improve the organization and clarity of the regulations.
In addition to the editorial revisions referenced above, this final rule corrects an error in the incidental catch limit regulations for scallop vessels fishing under a scallop DAS found at 50 CFR 648.94(c)(2). The original FMP and the preamble to the final rule implementing the FMP (64 FR 54732, October 7, 1999) stated that all vessels issued an incidental monkfish permit that are fishing under a scallop DAS, including both dredge vessels and vessels fishing under the trawl net exemption, are subject to an incidental catch limit of 300 lb (136 kg) tail weight per DAS (see Section 4.6.3.2 of the FMP). However, the regulatory text in the final rule implementing the FMP inadvertently referenced only scallop dredge vessels fishing under a scallop DAS. The final rule will correct the regulations at § 648.94(c)(2) to apply to all vessels fishing under a scallop DAS, consistent with the intent of the original FMP.
This final rule corrects the monkfish minimum trawl mesh size for the SNE Monkfish and Skate Trawl Exemption Area, specified at § 648.80(b)(5)(i)(B), to be consistent with the minimum trawl mesh size for vessels fishing under only a monkfish DAS, specified at § 648.91(c)(1)(i). The necessary minimum mesh size change to this exemption program under the NE Multispecies FMP was inadvertently omitted in drafting the regulatory text for the final rule implementing the original FMP.
The final rule also corrects an error in the possession limit regulations for limited access Category C and D vessels fishing on a multispecies DAS in the SFMA with gear other than trawl gear, specified at § 648.94(b)(3)(ii), to reference the fact that the 50-lb (23 kg) tail weight possession limit is per multispecies DAS. This error occurred in the regulatory text of the final rule implementing the FMP, but was correctly described in the preamble to that rule.
A total of 15 individual comment letters were received on the proposed rule and on the Amendment. Eleven comments were received specific to the proposed rule, two comments addressed the Amendment, and two comments did not distinguish between the proposed rule and the Amendment. This section summarizes the principle comments contained in the individual comment letters that pertained to Amendment 2 and the proposed rule, and NMFS's response to those comments. Any comments received that were not specific to the management measures contained in the Amendment 2 proposed rule, or in the amendment document, are not responded to in this final rule.
Ten commentors expressed either general or specific support for the management measures contained in Amendment 2, although two of these commentors expressed opposition or lack of support for particular management measures. Five comments were received in apparent opposition to the Amendment. The opposing comments received on Amendment 2 and its proposed rule were specific to the following issues: The research DAS set-aside program; essential fish habitat (EFH) measures; the modification of monkfish vessel baselines; the reduction in the minimum fish size for the SFMA; bycatch minimization; and bycatch reporting methodology.
The Councils proposed the closure of Lydonia and Oceanographer canyons as a precautionary measure to prevent any potential direct or indirect impacts to the EFH of other species that may result as the offshore monkfish fishery expands under the Offshore Fishery Program in the SFMA that is being implemented in this final rule. Thus, these closure areas are not being implemented solely to protect deep-water corals. In developing these alternatives, the Councils recognized that EFH for some federally managed species extends beyond the continental shelf, and includes some of the offshore canyons. The direct benefits of these closure areas were assessed in the FSEIS for Amendment 2 in terms of the degree to which the closure areas contain EFH for any species in depths greater than 200 meters that is classified as vulnerable. Twenty-three federally managed species have been observed or collected in surveys within the two canyon closure areas, with 10 of these species having EFH defined as hard substrates in depths greater than 200 meters. Furthermore, the EFH designations for juvenile and/or adult life stages for 6 of these 10 species (redfish, tilefish, and 4 species of skates) overlap with the two canyon closure areas. Since some type of hard substrate is included in the EFH description for all six species, EFH for all six of these species has been determined to be moderately to highly vulnerable to the effects of bottom trawls and minimally vulnerable to bottom gillnets. Any reduction in the quantity or quality of EFH for these six species within the two canyon closure areas would constitute a direct adverse impact. Thus, the direct adverse impacts associated with the expansion of the offshore monkfish fishery in the SFMA will be minimized through the implementation of the Lydonia and Oceanographer canyon closure areas.
Although corals are not explicitly included in the EFH descriptions for any species in the NE region, deep-water corals are known to grow on hard substrates, which are included in the EFH descriptions for many of the federally managed species that occur within the proposed closure areas, and are considered to be potentially important features of EFH for such species. Deep-water corals are considered to be especially vulnerable to damage by fishing gear due to their often complex branching form of growth, and because many species are extremely slow growing. Additionally, some coral species are thought to function similar to other epibenthic fauna in that they provide relief and shelter to juvenile finfish. For example, the EFH for juvenile redfish is has been determined to be highly vulnerable to the effects of bottom trawling largely due to this species use of bottom structure (including corals) for shelter. In addition, several other species found in the canyon closure areas utilize deep-water gravel and other hard bottom habitat that support the growth of corals and other species of attached epifauna. Damage or loss of these organisms caused by monkfish trawl or gillnet gear would constitute an indirect adverse impact to the benthic habitats. Thus, the indirect adverse impacts associated with the expansion of the offshore monkfish fishery in the SFMA will be minimized through the implementation of the Lydonia and Oceanographer canyon closure areas. Accordingly, the implementation of these closures in the EFH context is not justified on the grounds that it is necessary to protect deep-water corals per se, but rather on the grounds that it is necessary to protect the type of habitat occurring in these areas, which incidentally includes deep-water corals among other organisms.
As opposed to the NFMA, vessels fishing for monkfish in the SFMA may operate outside the requirements and controls of the NE Multispecies and the Atlantic Sea Scallop FMPs. Therefore, Amendment 2 considered a range of management measures to minimize, to the extent practicable, the effects of monkfish fishing on EFH in the SFMA. Amendment 2 implements two management measures with the specific intent of minimizing the effects of monkfish fishing on EFH: The prohibition on otter trawl roller gear greater than 6 inches (15.2 cm) in diameter, and the closures of Lydonia and Oceanographer canyons. The specifics of the canyon closures are addressed in the response to the previous comment, and are not repeated here. The roller gear restriction is expressly intended to prevent monkfish trawl vessels from fishing in areas containing vulnerable complex habitat, such as gravel habitat. Therefore, although Amendment 2 does not contain measures to close identified areas of gravel habitat and juvenile cod EFH, the roller gear restriction being implemented in this amendment will have the effect of limiting trawl fishing in all areas where complex habitats occur. The NEFMC's upcoming Omnibus Habitat Amendment will continue to take a comprehensive approach toward protection of vulnerable habitat, such as gravel habitat.
The response to the portion of the comment concerning the effect of a smaller minimum fish size on market price is contained in the FRFA section of this rule.
Rejecting the bycatch reporting methodology contained in Amendment 2 does not vitiate the partial approval of other measures. As stated by the Court
NMFS supports the bycatch measures contained in Amendment 2, and has determined that these incremental measures, in addition to conservation and bycatch measures already in place in the Monkfish FMP and the NE Multispecies FMP, which largely overlap with the monkfish fishery, as well as FMPs for other fisheries that catch monkfish, are appropriate to reduce bycatch to the extent practicable given what is known about the interaction of the monkfish fishery with both target and non-target species, including marine mammals and sea turtles. Amendment 2 contains several new measures aimed at reducing bycatch in the monkfish fishery including a combined research DAS set-aside and DAS exemption program. The purpose of this program is to encourage the collection of much needed information on the monkfish fishery, including information on bycatch. The information obtained from such research activities can then be used to develop scientifically sound bycatch reduction measures for the monkfish fishery. Amendment 2 also contains measures that will have the effect of further reducing regulatory discards, as well as the potential bycatch of deep-water corals. These measures consist of modifications to incidental catch limits, a reduction in the minimum fish size for the SFMA, and the closure of two canyon areas where deep-water corals are known to occur. The report of the 34th Stock Assessment Workshop (SAW 34) noted that the most frequent reason for discarding monkfish in the trawl and scallop fisheries was because the fish were too small, either for the market or due to regulations. As discussed in the response to Comment 6, more information is needed concerning the relationship between mesh size and the size of monkfish retained in the fishery. Thus, a reduction in the minimum fish size will serve to convert the discard of some small monkfish to landings, addressing the bycatch of small monkfish to some extent, until much needed information concerning the relationship between minimum fish size and minimum mesh size can be obtained and utilized in the management process.
With respect to the bycatch of marine mammals, which are not subject to the Magnuson-Stevens Act bycatch reduction mandates, and bycatch of sea turtles, sections 2.8 and 6.6.6.2 of the FSEIS describe the management measures currently in effect, or that are being developed to reduce the bycatch of marine mammals and sea turtles in the monkfish fishery. These management measures have been taken under the authority of the Marine Mammal Protection Act (MMPA) and/or the Endangered Species Act (ESA), and, therefore, take a more comprehensive approach to minimizing bycatch of marine mammals and sea turtles than can be accomplished under the Monkfish FMP alone. Given the limited information about bycatch of protected species, the measures in place under the ESA, the MMPA, and the Monkfish and NE Multispecies FMPs have been determined to reduce the potential bycatch of protected species to the extent practicable. For all of the reasons discussed above, NMFS has determined that the measures contained in Amendment 2 minimize bycatch and the unavoidable mortality of bycatch in the monkfish fishery to the extent practicable, in accordance with the guidelines for assessing practicability found at 50 CFR 600.350(d)(3), when viewed in combination with existing measures in the Monkfish and NE Multispecies FMPs, measures in the FMPs for other fisheries which catch monkfish, and specific ESA and MMPA regulations.
NMFS has made one substantive change to the proposed rule resulting from the disapproval of one of the Councils' preferred alternatives. In addition to editorial changes, NMFS has also made some minor changes to the proposed rule that are technical or administrative in nature, and that clarify or otherwise enhance enforcement and administration of the fishery management program. The one substantive change is listed below, with the minor technical or administrative changes following in the order in which they appear in the regulations.
In § 648.4, the proposed revision to paragraph (a)(9)(i)(H) has been removed to reflect the disapproval of the vessel baseline modification measure contained in Amendment 2, as described in the preamble of this final rule.
In § 648.4(a)(9)(i)(A)(
In § 648.4(a)(9)(i)(A)(
In § 648.4, paragraph (a)(9)(i)(E)(
In § 648.4, paragraph (a)(9)(i)(N)(
In § 648.9(c)(1), the cross-reference to § 648.58(h) has been corrected to read § 648.60(f). The change to this cross-reference was inadvertently omitted from the final rule implementing Amendment 10 to the Atlantic Sea Scallop FMP (69 FR 35194, June 23, 2004). In addition, a reference to paragraph § 648.95(e)(4) has been added to paragraph (c)(1) in order to cross-reference the VMS requirements for limited access monkfish Category F vessels, since these vessels are only required to have an operational VMS during a specified season.
In § 648.9, the proposed changes to paragraph (c)(2)(i) have been eliminated since the exception for monkfish limited access Category F vessels (i.e., the VMS requirement is limited to a specific season) has been cross-referenced under paragraph (c)(1) of this section.
In § 648.10, the paragraph (b)(v) has been removed since it duplicates the preceding paragraph (b)(iv). This paragraph should have been deleted in the final rule implementing Amendment 10 to the Atlantic Sea Scallop FMP.
In § 648.10(c)(1), the cross-reference to (c)(6) is corrected to read (b)(2)(iii). This cross-reference was incorrectly contained in the final rule implementing Amendment 13 to the NE Multispecies FMP (69 FR 22906, April 27, 2004).
In § 648.10(c)(3), the cross-reference to (b)(2)(iv) is corrected to read (b)(2)(iii). This cross-reference should have been updated in the final rule implementing Amendment 10 to the Atlantic Sea Scallop FMP.
In § 648.92(b)(1)(iv), the first sentence has been modified for clarity to begin, “A total of 500 DAS will be set aside and made available...”.
In § 648.92, paragraph (c)(1)(ii)(B) has been clarified to reflect the role of the RA in the approval of projects for the DAS set-aside program.
In § 648.92, the last sentence of paragraph (c)(1)(v) has been modified to reflect that the RA will publish a notice in the
In § 648.94, paragraph (b)(4) has been modified to include Category F, G, and H, vessels.
In § 648.94, paragraph (c)(2) has been modified to remove the reference to Category G and H vessels, since these vessels have been included in the possession limit for scallop vessels fishing under a scallop DAS specified at § 648.94(b)(2).
In § 648.94, paragraphs (c)(3), (c)(4), and (c)(6) were clarified to indicate that the incidental catch limits for vessels not fishing under a DAS are applicable to vessels holding either a monkfish incidental catch permit or a limited access permit.
In § 648.94, paragraphs (c)(4)-(c)(8), concerning the maximum trip limit of 150 lb (68 kg), are clarified to reflect that this represents tail weight, and the whole weight equivalent of 498 lb (226 kg) is added.
In § 648.94, paragraph (c)(8) has been revised to clarify the Councils' intent to include limited access scallop vessels not fishing under a scallop DAS since these vessels are authorized to fish under the same rules as General Category vessels when not fishing under a scallop DAS, as specified under § 648.52(a).
In § 648.94, paragraph (e) is modified to reflect that monkfish vessels declared in to the NFMA may transit the SFMA as long as they do not harvest or possess monkfish, or any other fish, from the SFMA. This change is being made to make this paragraph consistent with the changes made to paragraph (f) of this section in contained in Framework Adjustment 2 to the FMP (68 FR 22325, April 28, 2003).
In § 648.95(b), the annual declaration requirement for vessels participating in the Offshore Fishery Program in the SFMA has been modified to provide owners of limited access monkfish vessels with the opportunity to change their vessel's monkfish permit category within 45 days of the effective date of the vessel's permit, regardless of the fishing year. This modification is being made to reflect similar changes made under § 648.4(a)(9)(i)(A)(5). In addition, the first sentence of this paragraph has been modified to read, “To fish in the Offshore Fishery Program, a vessel must be issued a monkfish limited access Category F permit...”.
In § 648.95, paragraph (e)(4) has been modified to clarify that monkfish limited access Category F vessels are only required to have an operational VMS unit during the designated season for the Offshore Fishery Program, and that these vessels may turn off their VMS units outside of this season unless otherwise required under the VMS notification requirements specified at § 648.10(b)(1).
In § 648.95, paragraph (g)(2) has been modified to more clearly reflect how the monkfish DAS allocations for vessels issued a monkfish limited access Category F permit will be adjusted.
In § 648.97(b), the title of the closure area has been modified to correctly reference the Lydonia Canyon Closure
Pursuant to the Paperwork Reduction Act (PRA), part 902 of title 15 CFR displays control numbers assigned to NMFS information collection requirements by OMB. This part fulfills the requirements of section 3506(c)(1)(B)(i) of the PRA, which requires that agencies display a current control number, assigned by the Director of OMB, for each agency information collection requirement. This final rule codifies OMB Control Number 0648-0202 for § 648.95.
The Administrator, Northeast Region, NMFS, determined that the FMP amendment implemented by this rule is necessary for the conservation and management of the monkfish fishery, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness of this rule. This final rule has been delayed due to that fact that NMFS solicited additional public comment on the proposed rule due to an error contained in the preamble concerning the qualification period for the modified limited entry program. In order to alleviate confusion concerning the qualification period for the modified limited entry program, NMFS re-opened the public comment period for a period of 10 days on February 24, 2005 (70 FR 9029), with the public comment period ending on March 7, 2005.
It is essential that the Offshore Fishery Program be implemented by the start of FY 2005 on May 1, 2005, because this management measure impacts the annual monkfish DAS allocations for vessels that participate in the program. In fact, the regulations implementing this management measure require vessels to participate in the Offshore Fishery Program for the entire fishing year due to the impact on a vessel's DAS allocation. If the program were implemented after the start of the fishing year, vessels intending to participate in the program would be unable to fish under a monkfish DAS until the program became effective. In addition, vessels intending to participate in the program that fish under a monkfish DAS, under their standard limited access permit category (i.e., Category A, B, C or D), prior to the implementation of the program would be prohibited from participating in the Offshore Fishery Program during FY 2005. In both cases, the inability to fish would result in revenue loss, to some extent. Vessels that do not fish under a monkfish DAS until the Offshore Fishery Program is implemented would incur revenue losses resulting from the lost fishing time. On the other hand, vessels that are unable to participate in the Offshore Fishery Program because they fished under a monkfish DAS prior to the implementation of this program, would not be able to take advantage of the economic benefits of the program during FY 2005, forgoing potential fishing opportunities.
Because the Offshore Fishery Program must be implemented at the start of the fishing year, the Lydonia and Oceanographer Canyon closure areas must also be implemented at the start of the fishing year in order for their role as EFH protection measures to be effective. The purpose of the canyon closure areas is to minimize, to the extent practicable, the impacts to EFH resulting from the anticipated expansion of an offshore monkfish fishery under the Offshore Fishery Program. The closure areas are intended to be pre-emptive due to the long time-period it takes the vulnerable habitat contained within these areas to recover from the effects of fishing activities. Thus, the benefits of protecting vulnerable EFH, including deep-water coral habitat, located within the Lydonia and Oceanographer Canyon closure areas would be foregone if these canyon closure areas are not implemented in conjunction with the Offshore Fishery Program.
The remaining management measures contained in this rule will impose little to no additional regulatory burden, nor do they require additional time for vessels to come into compliance. The measures to reduce the monkfish minimum fish size for the SFMA, increase the incidental catch limits for vessels not fishing under a DAS program, and remove the 20-day block requirement for category A and B vessels would alleviate economic burden by increasing fishing opportunities by enabling vessels to land fish that would otherwise be discarded, or by enabling vessels to fish when they would otherwise be unable to fish. Furthermore, the three regulatory changes being made in this final rule correct errors in the monkfish regulations as described in the preamble of this final rule. These regulatory changes either increase economic opportunities to vessels by increasing the amount of monkfish a vessel can land, or have no actual effect since they simply clarify existing regulations. To delay the implementation of these measures and regulatory changes would cause undue economic harm. In addition, delaying the implementation of these measures, while implementing other measures on May 1, 2005, would cause confusion among members of the fishing industry, and impede enforcement of the new measures. Finally, the measure to restrict the size of roller gear that can be used by monkfish trawl vessels to 6-inches in diameter would impose an additional restriction on these vessels, but would result in little to no economic harm since monkfish trawl vessels that fish in the SFMA already use gear that complies with this new restriction. The purpose of this measure is to prevent monkfish trawl vessels from using larger roller gear, which would enable them to fish in areas containing complex bottom habitat that have been determined to be vulnerable to the effects of trawl fishing activities. Thus, implementing this measure on May 1, 2005, in conjunction with the other management measures contained in this amendment would provide immediate environmental benefits with little to no economic harm. Therefore, to delay the effective date of these regulations would unnecessarily forgo substantial environmental benefits, and significant economic benefits to the affected public, with little or no purpose served by the delay. Accordingly, there is good cause under 5 U.S.C. 553(d)(3) to establish an effective date that is less than 30 days after the date of publication if this final rule.
The Council prepared an FSEIS for this FMP amendment. The FSEIS was filed with the Environmental Protection Agency on January 7, 2005. A notice of availability was published in the
This final rule has been determined not to be significant for purposes of Executive Order 12866.
This section constitutes the FRFA, which NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has prepared in support of Amendment 2 to the FMP. The FRFA describes the economic impact that this final rule will have on small entities. This FRFA incorporates the IRFA, comments on the proposed rule, NMFS's responses to those comments, and the analyses completed to support the action. There are no Federal rules that may duplicate, overlap, or conflict with this final rule. A copy of the IRFA is available from the NEFMC (see
A description of the reasons why action by the agency is being taken, and the objectives of, and legal basis for, this action is contained in the preambles to the proposed (January 14, 2005; 70 FR 2586) and final rules, and is not repeated here. This action is taken under the authority of the Magnuson-Stevens Act and regulations at 50 CFR part 648.
NMFS has disapproved the management measure that would have provided owners of limited access monkfish vessels with a one-time opportunity to reset their vessel's baseline characteristics to be those associated with the vessel's first Federal limited access permit. This management measure has been disapproved because NMFS determined it does not comply with the National Standard 7 of the Magnuson-Stevens Act. A complete discussion of the reasons why this measure was disapproved is provided in the preamble of this rule.
All of the entities (fishing vessels) affected by this action are considered small entities under the Small Business Administration's size standards for small fishing businesses (less than $3.5 million in gross sales) and, therefore, the analysis of alternatives to minimize impacts in Amendment 2 also applies to this FRFA. This final rule will affect all Federal monkfish permit holders. For FY 2001, the year used as the basis for the analysis, there were 723 vessels holding limited access monkfish permits, and 1,977 vessels holding incidental catch permits. As of January 27, 2005, there were 713 vessels holding limited access monkfish permits, and 2,057 vessels holding monkfish incidental catch permits. The difference between the number of vessels holding limited access monkfish permits during FY 2001 versus during FY 2004 is primarily the result of vessel replacements and permits being moved into Confirmation of Permit History. Furthermore, the modified limited entry program for vessels fishing in the southern range of the fishery contained in this final rule is estimated to affect five vessels.
The measures approved under Amendment 2 include the following provisions requiring either new or revised reporting and recordkeeping requirements: (1) Annual declaration into the Offshore Fishery Program on the initial vessel permit application or vessel permit renewal application; (2) VMS purchase and installation; (3) VMS proof of installation; (4) automated VMS polling of vessel position once per hour while fishing under a monkfish DAS in the Offshore Fishery Program; (5) request to power down VMS unit for a minimum of 30 days; (6) initial application for a limited access monkfish permit (Category G or H) under the modified limited entry program for vessels fishing south of 38°20′ N. lat.; (7) renewal of limited access monkfish permit (Category G or H) under the modified limited entry program for vessels fishing south of 38°20′ N. lat.; (8) appeal of the denial of a limited access monkfish permit (Category G or H) under the modified limited entry program for vessels fishing south of 38°20′ N. lat.; (9) application for a vessel operator permit for new limited access monkfish vessels; (10) vessel replacement or upgrade application for new limited access monkfish vessels; (11) confirmation of permit history application for new limited access monkfish vessels; (12) DAS reporting requirements (call-in/call-out) for new limited access monkfish vessels; (13) application for Good Samaritan DAS credit for new limited access monkfish vessels; (14) annual gillnet declaration and tag order request for new monkfish limited access vessels; (15) requests for additional gillnet tags for new monkfish limited access vessels; (16) notification of lost tags and request for replacement tags for new limited access vessels; and (17) requests for an LOA to fish for monkfish in NAFO Regulatory Area under the proposed exemption program. Additional information regarding the projected reporting or recordkeeping costs associated with this action was made available for review in NMFS's PRA submission to OMB on March 3, 2005.
All vessels participating in the Offshore Fishery Program will be required to purchase and install a VMS unit. The average VMS unit offered by the two vendors currently approved by NMFS costs approximately $3,100 to purchase and install. Many of the limited access monkfish vessels expected to participate in the Offshore Fishery Program also possess limited access NE multispecies permits. Since several new programs implemented under Amendment 13 to the NE Multispecies FMP also require the use of VMS, it is estimated that half of the 50 vessels expected to participate in the Offshore Fishery Program already have VMS units through participation in these NE multispecies programs. Thus, only 25 additional limited access monkfish vessels are expected to be required to purchase a VMS in order to participate in the Offshore Fishery Program being implemented in Amendment 2. This results in a combined one-time cost of $77,500 for these 25 vessels. In addition, the average monthly cost to operate a VMS unit is $150. This results in a combined annual cost of $45,000 for these new VMS users. Five vessels fishing south of 38°20′ N. lat. are expected to qualify for a limited access monkfish permit under Amendment 2. These vessels will be required to obtain a Federal vessel operator permit, if they do not already have one. These permits cost approximately $10 due to the need for a color photograph, and are valid for 3 years. As a result, the yearly cost to these five vessels is estimated at $16.67, or approximately $3.33 per vessel. Finally, limited access monkfish vessels using gillnet gear must purchase gillnet tags. Each tag costs $1.20 and may be used for at least 3 years. Monkfish vessels are allowed to use up to 160 gillnets. Therefore, if the five vessels fishing south of 38°20′ N. lat. expected to qualify for a limited access monkfish permit under Amendment 2 elect to fish with gillnet gear, yearly costs associated with purchasing gillnet tags for each vessel will be a maximum of $64 (i.e., $192 every 3 years).
NMFS received a total of 15 public comments on Amendment 2 and its proposed rule. None of the comments received were specific to the IRFA. However, one comment indirectly dealt with the economic impacts to small entities (vessels) resulting from the management measures presented in the proposed rule to implement Amendment 2. That comment and NMFS's response follow:
Comment: One commentor stated that the reduction in the monkfish minimum size limit for the SFMA could lead to a reduction in the price of monkfish due to vessels landing increased quantities of smaller fish.
The economic analysis of the reduction in the monkfish minimum size limit for the SFMA contained in Section 6.4.1.2 of the FSEIS states that this measure will increase economic opportunities for vessels fishing in the SFMA because vessels will be allowed to land fish that would otherwise be discarded. Without detailed information on the size distribution of the commercial catch in both management areas, it is difficult to determine the extent of any economic benefits resulting from the increased economic opportunity. Similarly, without an understanding of the commercial size distribution under current regulations, it is difficult to assess the impact of the reduction in minimum fish size on ex-vessel price.
Nearly all of the management measures being implemented in this final rule provide increased economic opportunity and/or reduce the regulatory burden on vessels fishing for monkfish. A discussion of these measures is provided in the following paragraphs. Conversely, the measures to minimize the effects of monkfish fishing on EFH are expected to have some negative economic impact. The measure to establish a 6-inch (15.2-cm) maximum roller gear diameter for trawl vessels fishing under a monkfish DAS in the SFMA could have a short-term negative economic impact on some vessels since vessels using non-conforming gear will be required to bear the cost of making the necessary changes. According to individuals in the fishing industry, this roller gear diameter is already used by most vessels fishing in the SFMA, thus reducing the potential impact. The economic effect of closing Lyndonia and Oceanographer Canyons to vessels fishing under a monkfish DAS is expected to be zero based upon Vessel Trip Report (VTR) data for calendar years 1999 and 2001 which showed that no trips took place in either of these closure areas. The non-preferred EFH alternative to close up to 12 large, steep-walled canyons would have affected between 2 and 24 trips according to 2001 VTR data. Therefore, this non-preferred alternative would have been more burdensome than the selected closure alternative.
The measures to modify monkfish incidental catch limits that are being implemented in Amendment 2 will provide increased economic opportunities since they would enable vessels to land a higher incidental catch of monkfish than previously authorized, or in the case of General Category scallop vessels and surfclam and ocean quahog vessels, to land a small incidental catch of monkfish when it was previously prohibited. The no-action alternatives, i.e., not modifying the incidental catch limits, would have been more burdensome since the prohibition on retaining monkfish with dredge gear for General Category scallop vessels and surfclam and ocean quahog vessels would have remained in effect, and the incidental catch limits for other vessels would have remained at 50 lb (23 kg) tail weight per trip. The other non-preferred alternative to increase the maximum possession limit to 500 lb (230 kg), versus a maximum of 150 lb (68 kg) under the preferred alternative, would not have affected the total number of potential vessels that may benefit from the increased incidental catch limit, but would have enabled vessels to retain more monkfish during trips longer than 3 days in duration. Thus, this alternative could have resulted in slightly greater economic benefits (an average of $2,900 for each of the 112 affected vessels) in comparison to the preferred alternative. The Councils chose not to select this alternative due to a lack of evidence that the monkfish bycatch problem would not be fully addressed by a maximum possession limit of 150 lb (68 kg), and due to concerns that a higher maximum possession limit would encourage vessels to target monkfish.
The measure to reduce the monkfish minimum size limit for vessels fishing in the SFMA will enable vessels that fish in this area to land monkfish that were previously discarded. Thus, not only does this measure reduce the regulatory burden on vessels that fish in the SFMA, it provides increased economic opportunity. The other non-preferred alternative would have decreased the minimum size in both management areas to 10 inches (25.4 cm) tail length. This alternative would have resulted in increased economic opportunities for vessels fishing in both management areas, with a potentially greater economic benefit to vessels fishing in the SFMA. Although this alternative would have likely resulted in greater economic benefits than the preferred alternative, the Councils chose not to select this alternative due to concerns expressed by the Councils and fishing industry regarding the impact of a reduction in the minimum fish size on the monkfish resource, and the creation of incentives for vessels to target smaller monkfish. The no action alternative would have been more burdensome since it would have retained the larger minimum fish size for vessels fishing in the SFMA of 14 inches (35.6 cm) tail length, however, the elimination of the minimum fish size would have been the least burdensome. The Councils chose not to eliminate the minimum fish size due to concerns that this would encourage vessels to target small monkfish.
The proposal to remove the 20-day spawning block will result in a reduction in regulatory burden compared to current requirements for limited access monkfish Category A and B vessels. Furthermore, the removal of this requirement will provide these vessels with greater flexibility in choosing when they want to fish for monkfish. The non-preferred alternative would have doubled the current 20-day spawning block to 40 days. This
The Offshore Fishery Program in the SFMA and the NAFO Regulated Area Exemption Program both provide vessels with increased opportunity to target monkfish in offshore areas. The Offshore Fishery Program will allow vessels that participate in the program to use their available fishing time more efficiently by effectively increasing the amount of monkfish that the vessel could retain per DAS. Furthermore, because vessels that participate in the Offshore Fishery Program will use fewer total DAS, operational costs will be reduced potentially resulting in higher profitability in comparison to the no action alternative. The NAFO Regulatory Area Exemption Program will relieve vessels fishing for monkfish in the NAFO Regulatory Area from Federal monkfish regulations within the EEZ. The economic benefit of this exemption program, in comparison to the no action alternative, cannot be estimated since the extent that current regulations inhibit the ability of vessels to fish for monkfish in the NAFO Regulatory Area is unknown. However, the reduction in regulatory burden resulting from the implementation of this exemption program has a potential positive economic impact, in comparison to the no action alternative, since monkfish regulations in the EEZ are more restrictive than NAFO measures.
The modification of the monkfish limited entry program to include vessels fishing south of 38°20′ N. lat. will restore economic opportunities to some vessels that fished for monkfish in Federal waters prior to the implementation of FMP, but did not qualify for a limited access permit under the original criteria established in the FMP. Preliminary estimates indicate that five vessels will qualify for a limited access permit under the modified limited entry program. Thus, in comparison to the no action alternative, the proposed action will increase economic opportunities resulting in economic benefits. The non-preferred alternatives for the modified limited entry program would have either increased (seven vessels under Option 1) or decreased (three vessels under Options 2 and 4) the number of vessels that would qualify for monkfish limited access permits, with commensurate economic benefits for the qualifying vessels. It is possible that the addition of the limited access vessels under the preferred or non-preferred alternatives could result in reduced trip limits for vessels fishing in the SFMA since the target TAC will be spread across a greater number of vessels. However, the economic impact of such a trip limit reduction cannot be reliably estimated at this time.
The economic impacts of the DAS set-aside and DAS exemption programs will be re-distributive in nature at most. The proposed programs will reduce the total number of monkfish DAS allocated to the fleet by 500 DAS, distributing the reduction equally across all limited access vessels. Limited access vessels that utilize their entire annual monkfish DAS allocation and that do not participate in these cooperative research programs will be minimally impacted by the slight reduction (less than one) in DAS. However, these programs will provide increased fishing opportunities to vessels that utilize all of their annual monkfish DAS and participate in monkfish research activities. Vessels that do not utilize their full annual allotment of monkfish DAS will not be affected by the proposed programs.
The new framework measures contained in Amendment 2 will result in no direct economic impact. The addition of transferable monkfish DAS, measures to minimize the impact of the monkfish fishery on endangered or protected species, and measures to implement bycatch reduction devices to the list of frameworkable measures is administrative in nature. The economic impact of each measure will be analyzed in the associated framework action implementing the measure(s).
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. The guide will be sent to all vessels issued a Federal monkfish permit (limited access and incidental), and to all Federal dealers issued a monkfish permit. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see
This rule contains 17 new collection-of-information requirements subject to the PRA, which have been approved by OMB under control number 0648-0202. The public reporting burden for the collection-of-information requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information requirements. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
The new reporting requirements under OMB Control Number 0648-0202 and the estimated time for a response are as follows:
1. Annual declaration into the Offshore Fishery Program on initial vessel permit application or vessel permit renewal application, (30 min/response);
2. VMS purchase and installation, (1 hr/response);
3. VMS proof of installation, (5 min/response);
4. Automated VMS polling of vessel position once per hour while fishing under a monkfish DAS in the Offshore Fishery Program, (5 sec/response);
5. Request to power down VMS unit for a minimum of 30 days, (5 min/response);
6. Initial application for a limited access monkfish permit (Category G or H) under program for vessels fishing south of 38°20′ N. lat., (45 min/response);
7. Renewal of limited access monkfish permit (Category G or H) under program for vessels fishing south of 38°20′ N. lat., (30 min/response);
8. Appeal of denial of a limited access monkfish permit (Category G or H) under the program for vessels fishing south of 38°20′ N. lat., (2 hr/response);
9. Application for a vessel operator permit for new limited access monkfish vessels, (1 hr/response);
10. Vessel replacement or upgrade application for new limited access monkfish vessels, (3 hr/response);
11. Confirmation of permit history application for new limited access monkfish vessels, (30 min/response);
12. DAS reporting requirements (call-in/call-out) for new limited access monkfish vessels, (2 min/response);
13. Application for Good Samaritan DAS credit for new limited access monkfish vessels, (30 min/response);
14. Annual gillnet declaration and tag order request, (10 min/response);
15. Requests for additional gillnet tags, (2 min/response);
16. Notification of lost tags and request for replacement tags, (2 min/response); and
17. Requests for a letter of authorization to fish for monkfish in the NAFO Regulatory Area under the proposed exemption program, (5 min/response).
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to the 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.
Reporting and recordkeeping requirements.
Fisheries, Fishing, Recordkeeping and reporting requirements.
44 U.S.C. 3501
16 U.S.C. 1801
(a) * * *
(9) * * *
(i)
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(
(
(
(B)
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(
(M)
(
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(
(
(
(
(c) * * *
(1) Except as provided in paragraph § 648.95(e)(4) and paragraph (c)(2) of this section, or unless otherwise required by § 648.60(f) or paragraph (c)(1)(ii) of this section, all required VMS units must transmit a signal indicating the vessel's accurate position, as specified under paragraph (c)(1)(i) of this section.
(b) * * *
(1) * * *
(ix) A limited access monkfish vessel electing to fish in the Offshore Fishery Program in the SFMA, as provided in § 648.95.
(c) * * *
(1) Less than 1 hour prior to leaving port, for vessels issued a limited access NE multispecies DAS permit or, for vessels issued a limited access NE multispecies DAS permit and a limited access monkfish permit (Category C, D, F, G, or H), unless otherwise specified in this paragraph (c)(1), and, prior to leaving port for vessels issued a limited access monkfish Category A or B permit, the vessel owner or authorized representative must notify the Regional Administrator that the vessel will be participating in the DAS program by calling the Regional Administrator and providing the following information: Owner and caller name and phone number; vessel name and permit number; type of trip to be taken; port of departure; and that the vessel is beginning a trip. A DAS begins once the call has been received and a confirmation number is given by the Regional Administrator, or when a vessel leaves port, whichever occurs first, unless otherwise specified in paragraph (b)(2)(iii) of this section. Vessels issued a limited access monkfish Category C, D, F, G, or H permit that are allowed to fish as a Category A or B vessel in accordance with the provisions of § 648.92(b)(2)(i), are subject to the call-in notification requirements for limited access monkfish Category A or B vessels specified under this paragraph (c)(1) for those monkfish DAS where there is not a concurrent NE multispecies DAS.
(3) At the end of a vessel's trip, upon its return to port, the vessel owner or owner's representative must call the Regional Administrator and notify him/her that the trip has ended by providing the following information: Owner and caller name and phone number, vessel name, permit number, port of landing, and that the vessel has ended its trip. A DAS ends when the call has been received and confirmation has been given by the Regional Administrator, unless otherwise specified in paragraph (b)(2)(iii) of this section.
(a) * * *
(125) For vessels issued a limited access NE multispecies permit, or those issued a limited access NE multispecies permit and a limited access monkfish permit (Category C, D, F, G, or H), but are not fishing under the limited access monkfish Category A or B provisions as allowed under § 648.92(b)(2), call into the DAS program prior to 1 hour before leaving port.
(x) * * *
(8)
(y) In addition to the general prohibitions specified in § 600.725 of this chapter and in paragraph (a) of this section, it is unlawful for any person owning or operating a vessel that engages in fishing for monkfish to do any of the following, unless otherwise fishing in accordance with, and exempted under, the provisions of § 648.17:
(1) * * *
(iii) The monkfish were harvested in or from the EEZ by a vessel not issued a Federal monkfish permit that engaged in recreational fishing; or
(iv) The monkfish were harvested from the NAFO Regulatory Area in accordance with the provisions specified under § 648.17.
(3) Sell, barter, trade, or otherwise transfer, or attempt to sell, barter, trade, or otherwise transfer for a commercial purpose, any monkfish without having been issued a valid monkfish vessel permit, unless the vessel fishes for monkfish exclusively in state waters, or exclusively in the NAFO Regulatory Area in accordance with the provisions specified under § 648.17.
(7) Fail to comply with the area restrictions applicable to limited access Category G and H vessels specified under § 648.92(b)(9).
(21) Fail to comply with the area declaration requirements specified at §§ 648.93(b)(2) and 648.94(f) when fishing under a scallop, NE multispecies, or monkfish DAS exclusively in the NFMA under the less restrictive monkfish possession limits of that area.
(a)
(2)
(b)
(2) For the duration of the trip, the vessel fishes, except for transiting purposes, exclusively in the NAFO Regulatory Area and does not harvest fish in, or possess fish harvested in, or from, the EEZ;
(3) When transiting the EEZ, all gear is properly stowed in accordance with one of the applicable methods specified in § 648.23(b); and
(4) The vessel operator complies with the High Seas Fishing Compliance Permit and all NAFO conservation and enforcement measures while fishing in the NAFO Regulatory Area.
(b) * * *
(5) * * *
(i) * * *
(B) All trawl nets must comply with the minimum mesh size specified under § 648.91(c)(1)(i).
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(vi)
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(ii)
(iv)
(3)
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(i)
(iii)
(iv)
(2)
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(B) A monkfish Category C, D, F, G, or H vessel that leases DAS to another vessel(s), pursuant to § 648.82(k), is required to forfeit a monkfish DAS for each NE multispecies DAS that the vessel leases, equal in number to the difference between the number of remaining NE multispecies DAS and the number of unused monkfish DAS at the time of the lease. For example, if a lessor vessel, which had 40 unused monkfish DAS and 47 allocated NE multispecies DAS, leased 10 of its NE multispecies DAS, the lessor would forfeit 3 of its monkfish DAS (40 monkfish DAS - 37 NE multispecies DAS = 3) because it would have 3 fewer multispecies DAS than monkfish DAS after the lease.
(5) [Reserved]
(6)
(8) * * *
(i) * * *
(B)
(9)
(ii) Vessels issued valid limited access monkfish Category G or H permit that also possess a limited access NE multispecies or limited access scallop permit are subject to the same provisions as Category C or D vessels, respectively, unless otherwise stated under this subpart F.
(c)
(ii) NMFS shall convene a review panel that may include members of the Councils' Monkfish Oversight Committee, the Council's Research Steering Committee, and other technical experts, to review proposals submitted in response to the RFP.
(A) Each panel member shall recommend which research proposals should be authorized to utilize the research DAS set aside in accordance with paragraph (b)(1)(iv) of this section, based on the selection criteria described in the RFP.
(B) The Regional Administrator shall consider each panel member's recommendation, provide final approval of the projects, and notify applicants of the grant award through written notification to the project proponent. The Regional Administrator may exempt selected vessel(s) from regulations specified in each of the respective FMPs throughthe exempted fishing permit (EFP) process specified under § 600.745(b)(2).
(iii) The grant awards approved under the RFPs shall be for the upcoming fishing year. Proposals to fund research that would start prior to the fishing year are not eligible for consideration. Multi-year grant awards may be approved under an RFP for an upcoming fishing year, so long as the research DAS available under subsequent RFPs are adjusted to account for the approval of multi-year awards. All research trips shall be completed within the fishing year(s) for which the research grant was awarded.
(iv) Research projects shall be conducted in accordance with provisions approved and provided in an EFP issued by the Regional Administrator, as authorized under § 600.745(b)(2).
(v) If the Regional Administrator determines that the annual allocation of research DAS will not be used in its entirety once all of the grant awards have been approved, the Regional Administrator shall reallocate the unallocated research DAS as exempted DAS to be authorized as described in
(vi) For proposals that require other regulatory exemptions that extend beyond the scope of the analysis contained in the Monkfish FMP, subsequent amendments, or framework adjustments, applicants may be required to provide additional analysis of the impacts of the requested exemptions before issuance of an EFP will be considered.
(2)
(A) The request for a monkfish DAS exemption must be submitted along with a complete application for an EFP to the Regional Administrator. The requirements for submitting a complete EFP application are provided in § 600.745(b)(2);
(B) Exempted DAS must be available for usage. Exempted DAS shall only be made available by the Regional Administrator if it is determined that the annual set-aside of research DAS will not be used in its entirety, as described in paragraph (c)(1)(v) of this section. If exempted DAS are not available for usage, the applicant may continue to seek an exemption from monkfish DAS, but may be required to conduct an analysis of the impacts associated with the monkfish DAS exemption request before issuance of the EFP application will be considered; and
(C) For EFP applications that require other regulatory exemptions that extend beyond the scope of the analysis contained in the Monkfish FMP, subsequent amendments, or framework adjustments, applicants may be required to provide additional analysis of the impacts of the requested exemptions before issuance of an EFP will be considered.
(ii) Monkfish DAS exemption requests shall be reviewed and approved by the Regional Administrator in the order in which they are received.
(b)
(b) * * *
(2) * * *
(i)
(ii)
(iii)
(iv)
(3)
(B) Category F, G, and H vessels. Vessels issued a Category F, G, or H permit that are fishing under a NE multispecies DAS in the NFMA are subject to the incidental catch limit specified in paragraph (c)(1)(i) of this section.
(ii)
(B)
(4)
(5)
(6)
(c)
(ii)
(2)
(3)
(ii) A vessel issued a valid monkfish incidental catch (Category E) permit or a limited access monkfish permit (Category A, B, C, D, F, G, or H) fishing in the SNE or MA RMAs west of the MA Exemption Area boundary with mesh no smaller than specified at § 648.104(a)(1) while not on a monkfish, NE multispecies, or scallop DAS, may possess, retain, and land monkfish (whole or tails) only up to 5 percent (where the weight of all monkfish is converted to tail weight) of the total weight of fish on board, but not to exceed 450 lb (204 kg) tail weight or 1,494 lb (678 kg) whole weight of monkfish. For the purpose of converting whole weight to tail weight, the amount of whole weight possessed or landed is divided by 3.32.
(4)
(5)
(6) Vessels fishing with handgear. A vessel issued a valid monkfish incidental catch (Category E) permit or a limited access monkfish permit (Category A, B, C, D, F, G, or H) and fishing exclusively with rod and reel or handlines with no other fishing gear on board, while not on a monkfish, NE multispecies, or scallop DAS, may possess, retain, and land up to 50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight of monkfish per day or partial day, not to exceed 150 lb (68 kg) tail weight or 498 lb (226 kg) whole weight per trip.
(7)
(8)
(e)
(a)
(1) A vessel issued a Category F permit is subject to the specific provisions and conditions of this section while fishing on a monkfish DAS.
(2) When not fishing on a monkfish DAS, a Category F vessel may fish under the regulations applicable to the monkfish incidental catch (Category E) permit, specified under paragraph § 648.94(c). When fishing on a NE multispecies DAS in the NFMA, a Category F vessel that also possesses a NE multispecies limited access permit is subject to the possession limits applicable to vessels issued an incidental catch permit as described in § 648.94(c)(1)(i).
(3) Limited access Category C or D vessels that apply for and are issued a Category F permit remain subject to the provisions specific to Category C and D vessels, unless otherwise specified under this subpart F.
(b)
(c)
(d)
(e)
(2) A vessel enrolled in the Offshore Fishery Program is restricted to fishing under its monkfish DAS during the season in paragraph (d) of this section.
(3) A vessel issued a Category F permit that is fishing on a monkfish DAS is subject to the minimum mesh size requirements applicable to limited access monkfish Category A and B vessels, as specified under § 648.91(c)(1)(i) and (c)(1)(iii), as well as the other gear requirements specified in paragraphs (c)(2) and (c)(3).
(4) A vessel issued a Category F permit must have installed on board an operational VMS unit that meets the minimum performance criteria specified in §§ 648.9 and 648.10 during the entire season established under paragraph (d) of this section. Unless otherwise required to maintain an operational VMS unit under the VMS notification requirements specified at § 648.10(b)(1), a vessel issued a Category F permit may turn off its VMS unit outside of this season.
(f)
(g)
(2) The monkfish DAS allocation for vessels issued a Category F permit shall be equal to the trip limit applicable to the vessel's monkfish limited access permit category divided by the fixed daily possession limit specified in paragraph (g)(1) of this section, and then multiplied by the DAS allocation for limited access monkfish vessels not issued Category F permits, specified under § 648.92(b)(1). For example, if a vessel has a limited access monkfish Category C permit, and the applicable trip limit is 800 lb (363 kg) for this category, and the vessel has an annual allocation of 40 monkfish DAS, then the monkfish DAS allocated to that vessel when issued a Category F permit would be 20 monkfish DAS (800 lb divided by 1,600 lb, multiplied by 40 monkfish DAS equals 20 DAS). Any carryover monkfish DAS will be included in the calculation of monkfish DAS for Category F vessels.
(3) Vessels issued a Category F permit that are fishing under a NE multispecies DAS in the NFMA are subject to the incidental catch limit specified in paragraph (c)(1)(i) of this section.
(h)
(c) * * *
(1) * * *
(i) Based on their annual review, the MFMC may develop and recommend, in addition to the target TACs and management measures established under paragraph (b) of this section, other options necessary to achieve the Monkfish FMP's goals and objectives, which may include a preferred option. The MFMC must demonstrate through analysis and documentation that the options it develops are expected to meet the Monkfish FMP goals and objectives. The MFMC may review the performance of different user groups or fleet sectors in developing options. The range of options developed by the MFMC may include any of the management measures in the Monkfish FMP, including, but not limited to: Closed seasons or closed areas; minimum size limits; mesh size limits; net limits; liver-to-monkfish landings ratios; annual monkfish DAS allocations and monitoring; trip or possession limits; blocks of time out of the fishery; gear restrictions; transferability of permits and permit rights or administration of vessel upgrades, vessel replacement, or permit assignment; measures to minimize the impact of the monkfish fishery on protected species; gear requirements or restrictions that minimize bycatch or bycatch mortality; transferable DAS programs; and other frameworkable measures included in §§ 648.55 and 648.90.
(a)
(b)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Cross Vetpharm Group Ltd. The supplemental NADA provides for the addition of
This rule is effective April 28, 2005.
Joan C. Gotthardt, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7571, e-mail:
Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland, filed a supplement to NADA 65-506 that provides for the addition of statements to labeling of COMBI-PEN-48 (penicillin G benzathine and penicillin G procaine) injectable suspension warning against the use of this product in calves to be processed for veal. The supplemental NADA is approved as of March 23, 2005, and the regulations are amended in § 522.1696a (21 CFR 522.1696a) to reflect the approval. FDA is also amending § 522.1696a to correct an error in the indications for use for several penicillin products which was introduced during reformatting of this section in 2001 (66 FR 711, January 4, 2001). This is being done to improve the accuracy of the regulations.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
(b) * * *
(2) Nos. 010515, 059130, and 061623 for use as in paragraphs (d)(2)(i), (d)(2)(ii)(A), and (d)(2)(iii) of this section.
(3) Nos. 000856 and 049185 for use as in paragraphs (d)(2)(i), (d)(2)(ii)(B), and (d)(2)(iii) of this section.
(d) * * *
(2) * * *
(iii)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is reclassifying tricalcium phosphate (TCP) granules for dental bone repair from class III to class II (special controls), classifying into class II (special controls) other bone grafting material for dental indications, and revising the classification name and identification of the device type. Bone grafting materials that contain a drug that is a therapeutic biologic will remain in class III and continue to require a premarket approval application. The classification identification includes materials such as hydroxyapatite, tricalcium phosphate, polylactic and polyglycolic acids, or collagen. This action is being taken to establish sufficient regulatory controls that will provide reasonable assurance of the safety and effectiveness of these devices. Elsewhere in this issue of the
May 31, 2005.
Michael E. Adjodha, Center for Devices and Radiological Health (HFZ-480), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-827-5283, e-mail:
The Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 301
Under section 513 of the act, devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), generally referred to as preamendments devices, are classified after the following requirements are met: (1) FDA has received a recommendation from a device classification panel (an FDA advisory committee); (2) FDA has published the panel's recommendation
Under section 520(l) of the act (21 U.S.C. 360j(l)), devices formerly regulated as new drugs are automatically classified into class III, unless FDA, in response to a reclassification petition or on its own initiative, has classified the device into class I or II.
In the
The
Also in the
FDA received one comment on the proposed rule and guidance document. The comment said that TCP granules should remain in class III (premarket approval) and that all other bone grafting materials for dental indications should be regulated in class III because the commenter believed the special controls (composition, physical properties, and compliance with the American Society for Testing and Materials (ASTM) composition standards) described in the draft guidance document were not sufficient to provide a reasonable assurance of safety and effectiveness for these devices. The comment states that only evidence from clinical studies is sufficient to provide a reasonable assurance of safety and effectiveness for these devices.
FDA disagrees in part with the comment. In most cases, FDA believes that there is sufficient human experience with the dental bone grafting material devices being reclassified and classified into class II to establish a special controls guidance to provide reasonable assurance of safety and effectiveness through the 510(k) process without the submission of clinical data. FDA has determined that this experience supports the conclusion that information on composition, physical properties, and compliance with ASTM composition standards in a 510(k) will provide adequate information for FDA review of the device, if there is no change in the formulation, design, technology, or indication for use of the device. In cases in which there is such a change, however, the special controls guidance clearly states that FDA recommends the submission of clinical data in the 510(k) to support a substantial equivalence determination. If the manufacturer cannot demonstrate that the new device is substantially equivalent, the device will be found not substantially equivalent and a premarket approval application may be required. This approach is consistent with the general recommendations of the panel in 1995 and in 2003. Therefore, FDA believes that special controls, in addition to general controls, will provide a reasonable assurance of the safety and effectiveness of these devices and these devices can be classified in class II. Bone grafting material devices that contain a drug that is a therapeutic biologic will remain in class III and continue to require a premarket approval application.
Therefore, under sections 513 and 520(l) of the act, FDA is adopting the summary of reasons for the panel's recommendation, the summary of data upon which the panel's recommendations are based, and the assessment of the risks to public health stated in the proposed rule published on June 30, 2004. Furthermore, FDA is issuing this final rule, § 872.3930 (21 CFR 872.3930), that reclassifies TCP granules for dental bone repair from class III to class II (special controls); classifies into class II (special controls) other bone grafting material for dental indications; and revises the classification name and identification of the device. Bone grafting materials that contain a drug that is a therapeutic biologic will remain in class III and continue to require a premarket approval application.
FDA is making the following changes to the identification of bone grafting material:
• Removing the phrase “a naturally or synthetically derived” because it does not apply to all the examples that follow.
• Removing “demineralized bone additives.” Minimally manipulated demineralized bone is regulated as human cells, tissues, and cellular and tissue-based products under section 361 of the Public Health Service Act (21 CFR 1271.10). Human demineralized bone with additives is regulated as a medical device and is subject to premarket notification procedures. FDA intends to publish a separate rule for human demineralized bone with additives to classify the device into class II and establish a special control.
• Adding “polyglycolic” to “polylactic acids” to more clearly identify these materials as a class of poly(alpha-hydroxy) acids because they are often supplied as a mixture.
• Clarifying that bone grafting materials that contain a drug that is a therapeutic biologic are the devices that will remain in class III. Therapeutic biologics are biological response modifiers, such as growth factors, cytokines, and certain monoclonal antibodies that are regulated as drugs. Because insufficient information exists to determine that general controls and special controls are sufficient to provide a reasonable assurance of their safety and effectiveness, these devices will remain in class III and continue to require premarket approval applications.
FDA is also revising paragraph (c) in § 872.3930 to clarify the status of the devices described in paragraph (b)(2) that contain a drug that is a therapeutic biologic. Devices that were not in commercial distribution prior to May 28, 1976, generally referred to as postamendments devices, are classified automatically by statute (section 513(f) of the act (21 U.S.C. 360c(f)) into class III without any FDA rulemaking process. Those devices remain in class III and require a premarket approval application, unless and until the device is reclassified into class I or II or FDA
This action is being taken to establish sufficient regulatory controls to provide reasonable assurance of the safety and effectiveness of the devices in class II. The guidance document entitled “Class II Special Controls Guidance Document: Dental Bone Grafting Material Devices” will serve as the special control for the device. Elsewhere in this issue of the
The special controls guidance document contains recommendations with regard to the information and testing that should be included in a premarket notification. The guidance document addresses the following topics: Material characterization, biocompatibility, sterilization, and labeling. Adequate characterization of the composition, physical properties, and in vivo performance can address the risk of ineffective bone formation. Adequate biocompatibility can address the risk of adverse tissue reaction. Sterilization can address the risk of infection, and labeling can address the risk of improper use.
The agency is not exempting this device from the premarket notification requirements of the act, as permitted by section 510(m) of the act (21 U.S.C. 360(m)). FDA believes that it needs to review information in a premarket notification submission that addresses the risks identified in the guidance document in order to assure that a new device is at least as safe and effective as legally marketed devices of this type.
FDA has determined under 21 CFR 25.34(b) that this classification and reclassification action does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has examined the impacts of the final rule under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. FDA believes that manufacturers of the devices being reclassified or classified into class II are already substantially in compliance with the recommendations in the guidance document. Because manufacturers of the devices subject to the special control are being relieved of the burden of submitting a premarket approval application, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “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 one year.” The current threshold after adjustment for inflation is $115 million, using the most current (2003) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
FDA has analyzed the final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies conferring substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, FDA has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order. As a result, a federalism summary impact statement is not required.
FDA concludes that the final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget, according to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required.
Medical devices.
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(2) Class III (premarket approval) for bone grafting materials that contain a drug that is a therapeutic biologic. Bone grafting materials that contain a drug that is a therapeutic biologic, such as biological response modifiers, require premarket approval.
(c)
Bureau of Indian Affairs, Interior.
Final rule.
This final rule deletes provisions of parts 31 and 36 that will become obsolete on May 31, 2005, the effective date of the final rule implementing the No Child Left Behind Act of 2001.
Catherine Freels, Designated Federal Official, P.O. Box 1430, Albuquerque, NM 87103-1430; phone: 505-248-7240; e-mail:
Today the Bureau of Indian Affairs is publishing elsewhere in the
1. Regulatory Planning and Review (E.O. 12866). This document is not a significant rule and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) This rule does not raise novel legal or policy issues. It makes only changes necessary to ensure that these sections of 25 CFR conform to the changes made by the new rule being published in final today.
2.
3.
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
4.
5.
6.
7.
8.
9.
10.
11.
The Department has determined that the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not apply to this rule because of the good cause exception under 5 U.S.C. 553(b)(3)(B). This exception allows the agency to suspend the notice and public procedure requirements when the agency finds for good cause that those requirements are impractical, unnecessary, and contrary to the public interest. This rule deletes provisions made obsolete by rules published today by the Department; it makes no other substantive changes. Failure to immediately revoke these rules would lead to confusion and cause errors in vital educational programs. For these reasons, public comments is unnecessary and good cause exists for publishing this change as a direct final rule.
Elementary and secondary education programs, Government programs—education, Indians—education, Schools.
Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise noted.
Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 S.C. 2901, Title I of P.L. 101-477.
Department of Justice.
Interim rule with request for comments.
The Department of Justice is publishing this interim rule to implement 18 U.S.C. 3600A. That statute requires the Federal Government to preserve biological evidence in Federal criminal cases in which defendants are under sentences of imprisonment, subject to certain limitations and exceptions. Subsection (e) of the statute requires the Attorney General to promulgate regulations to implement and enforce the statute. This rule adds a new subpart C to 28 CFR part 28 to effect the required implementation and enforcement of 18 U.S.C. 3600A. The new provisions added by this rule explain and interpret the evidence preservation requirement of 18 U.S.C. 3600A, and include provisions concerning sanctions for violations of that requirement.
Comments may be mailed to David J. Karp, Senior Counsel, Office of Legal Policy, Room 4509, Main Justice Building, 950 Pennsylvania Avenue, NW., Washington, DC 20530. To ensure proper handling, please reference OAG Docket No. 109 on your correspondence. You may view an electronic version of this interim rule at
Public Law 108-405, the Justice for All Act of 2004, was enacted on October 30, 2004. Section 411 of that Act added two sections to title 18 of the United States Code. One of these, 18 U.S.C. 3600 (hereafter, “section 3600”), is a new postconviction remedy by means of which persons convicted and imprisoned for Federal offenses may seek DNA testing in support of claims that they are actually innocent of the crimes for which they were convicted. The Act also added 18 U.S.C. 3600A (hereafter, “section 3600A”), which requires the Government to preserve biological evidence—defined to mean “sexual assault forensic examination kit[s]” and “semen, blood, saliva, hair, skin tissue, or other identified biological material”—that was secured in the investigation or prosecution of a Federal offense for which a defendant is under a sentence of imprisonment, subject to certain limitations and exceptions. The general purpose of section 3600A is to preserve biological evidence for possible DNA testing under section 3600. If a court orders, pursuant to section 3600, DNA testing of biological evidence that has been preserved in the case, the test results may shed light on the defendant's guilt or innocence of the offense by including or excluding the defendant as the source of the biological material.
Subsection (e) of section 3600A directs the Attorney General to promulgate within 180 days of the date of enactment (
The first seven sections of the new Subpart, §§ 28.21 through 28.27, primarily explain and interpret the biological evidence preservation requirement of section 3600A. This will ensure that Federal agencies clearly understand their obligations under section 3600A, including both the positive extent of the requirement to preserve biological evidence and the limitations on and exceptions to that requirement under the statute. The final section of the new Subpart, § 28.28, concerns sanctions for violations. The provisions of the regulations are as follows:
Section 28.21 notes the biological evidence preservation requirement of section 3600A, its general purpose to preserve such evidence for possible DNA testing under 18 U.S.C. 3600, and the requirement of section 3600A(e) to promulgate regulations to implement and enforce section 3600A.
Section 28.22 provides explanation concerning the applicability, duration, and meaning of the biological evidence preservation requirement, construing subsection (a) of section 3600A.
Paragraph (a) in § 28.22 notes that the biological evidence preservation requirement applies to evidence retained in cases predating the enactment of section 3600A or the promulgation of this rule, as well as to evidence secured in pending and future cases. This reflects the effective date and applicability provision in section 411 of the Justice for All Act, which states that the provisions enacted by that section (including 18 U.S.C. 3600A) “shall apply with respect to any offense committed, and to any judgment of
Paragraph (b) in § 28.22 interprets and specifies a number of consequences of the language in section 3600A that requires the preservation of biological evidence secured in the investigation or prosecution of a Federal offense “if a defendant is under a sentence of imprisonment for such offense.” 18 U.S.C. 3600A(a). The general consequence of this limitation is that section 3600A's requirement to preserve biological evidence begins to apply when a defendant is sentenced to imprisonment for the offense in whose investigation or prosecution the evidence was secured, and ceases to apply at the end of such imprisonment.
In some cases the prison terms served by defendants are extended because of convictions for additional offenses, beyond those involving the biological evidence whose preservation is required by section 3600A. This does not change the principle that the biological evidence preservation period under section 3600A(a) continues until the end of imprisonment. For example, consider a case in which a defendant is sentenced to 10 years of imprisonment for a rape in violation of 18 U.S.C. 2241, and the biological evidence is a sexual assault forensic examination kit taken from the victim of that rape. Suppose further that, before the prison term for the rape is completed, the defendant is convicted and sentenced to a consecutive 10 years of imprisonment for some other offense—
In such a case, the 10-year prison term the defendant received for the rape is merged into the aggregate prison term of 20 years under 18 U.S.C. 3584, and the defendant is deemed to be under a sentence of imprisonment for the rape for purposes of section 3600A's biological evidence preservation requirement until he is released following imprisonment, though that will not occur until a longer period than 10 years has elapsed. Regardless of any effect on the duration of imprisonment resulting from conviction for multiple offenses, the rule is that the biological evidence preservation period under section 3600A(a) begins when a defendant is sentenced to imprisonment for an offense in whose investigation or prosecution the evidence was secured, and ends on release of the defendant or defendants following imprisonment.
Subparagraphs (1) and (2) of paragraph (b) notes two specific consequences of the “under a sentence of imprisonment” limitation of section 3600A—inapplicability of the biological evidence preservation requirement of section 3600A at the investigative stage of criminal cases, preceding the conviction and sentencing to imprisonment of a defendant, and inapplicability of the biological evidence preservation requirement to cases in which the defendants receive only non-incarcerative sentences, since in these circumstances no defendant is “under a sentence of imprisonment” for the offense.
Paragraph (b)(3) of the regulation explains that as a further consequence of the “under a sentence of imprisonment” language, the biological evidence preservation requirement of section 3600A ceases to apply once the defendant or defendants are released following imprisonment, either unconditionally or under supervision. In other words, the biological evidence preservation requirement does not apply even if a defendant remains on supervised release or parole following his release. The legislative history of section 3600A confirms that the “under a sentence of imprisonment” language in the statute refers to circumstances in which a defendant remains incarcerated and that the biological evidence retention requirement applies only in such circumstances. See H. Rep. No. 711, 108th Cong., 2d Sess. 2 (2004) (section 3600A requires preservation of biological evidence “while the defendant remains incarcerated”); id. at 14 (“while a defendant remains incarcerated”); H. Rep. No. 321, 108th Cong., 1st Sess. 19 (2003) (“while the defendant remains incarcerated”); id. at 29 (“while a defendant remains incarcerated”); 149 Cong. Rec. H10357 (daily ed. Nov. 5, 2003) (statement of Rep. Sensenbrenner) (“where the defendant remains incarcerated”); 149 Cong. Rec. S12296 (daily ed. Oct. 1, 2003) (section-by-section analysis inserted in record by Sen. Hatch) (“while a defendant remains incarcerated”). Release on parole, as well as release on supervised release, terminates the requirement to preserve biological evidence under section 3600A(a) in light of the clear legislative intent to have that requirement apply only while a defendant remains incarcerated, even though a parolee may validly be regarded as still in custody under the sentence imposed by the court for other purposes.
Federal agencies will be able to determine whether and when a defendant has been released following imprisonment by asking the Federal Bureau of Prisons. Several federal law enforcement agencies maintain Memorandums of Agreement with the Bureau of Prisons whereby they may directly access computer records of federal inmates to determine their incarceration status. Absent such a relationship, anyone may use the Bureau of Prisons' inmate locator service, which is available on its internet site at:
In general, the Bureau of Prisons determines an imprisoned defendant's release date by applying the prison term specified by the court in sentencing, subject to any good conduct credit awarded under 18 U.S.C. 3624(b) and any credit for prior custody under 18 U.S.C. 3585(b). See 18 U.S.C. 3585, 3624(a). Subsequent modification of a sentence of imprisonment by the court, or reduction of the period of custody by the Bureau of Prisons as authorized by provisions relating to successful completion of drug treatment or shock incarceration programs (18 U.S.C. 3621(e)(2)(B), 4046(c)), are also given effect by the Bureau of Prisons in determining the time of release. However, subsequent occurrences that do not terminate the Bureau of Prisons' custody over a convicted defendant—such as temporary release under 18 U.S.C. 3622 or placement in a halfway house under 18 U.S.C. 3624(c)—do not constitute release following imprisonment in the relevant sense and do not terminate the requirement to preserve biological evidence under section 3600A, since the defendant remains under a sentence of imprisonment for the offense in these circumstances. In contrast to a prisoner who is released at the conclusion of imprisonment, either unconditionally or under supervision, a prisoner furloughed under 18 U.S.C. 3622 remains in the custody of the Bureau of Prisons, and a prisoner given the benefit of 18 U.S.C. 3624(c) likewise is only afforded placement in a different type of confinement near the end of his prison term while remaining in the custody of the Bureau of Prisons.
Paragraph (b)(4) of the regulation explains that the “under a sentence of imprisonment for such offense” language in section 3600A(a) refers to imprisonment pursuant to the sentence
While imprisonment following a revocation of release is legally part of the penalty for the offense of conviction, see,
The legislative history of title IV of the Justice for All Act (
The more immediate legislative history of section 3600A provides additional support for understanding the statute as concerned only with imprisonment pursuant to the original sentence, as opposed to imprisonment dependent on later release condition violations. The references to section 3600A in the legislative history do not state that biological evidence preservation is required whenever a convicted defendant is imprisoned, but rather consistently characterize section 3600A as requiring the preservation of biological evidence while a convicted defendant “remains incarcerated.” H. Rep. No. 711, 108th Cong., 2d Sess. 2, 14 (2004); H. Rep. No. 321, 108th Cong., 1st Sess. 19, 29 (2003); 149 Cong. Rec. H10357 (daily ed. Nov. 5, 2003) (statement of Rep. Sensenbrenner); 149 Cong. Rec. S12296 (daily ed. Oct. 1, 2003) (section-by-section analysis inserted in record by Sen. Hatch). This language (“remains incarcerated”) most naturally suggests an intention to provide a benefit or protection for defendants who are initially sentenced to incarceration, which remains applicable for as long as the incarceration continues (subject to the statute's limitations and exceptions to the preservation requirement). It does not suggest an intent to provide any benefit for a probationer who does not “remain[] incarcerated,” because he is not sentenced to incarceration in the first place, and only is imprisoned later on because he violates a condition of release. Likewise, it does not suggest an intent to provide any benefit to a convict who has completed the full term of imprisonment for the offense to which he was sentenced by the court; who thereafter does not “remain[] incarcerated,” because he is released on supervised release; and later is imprisoned again because of a release condition violation. Nor does it suggest an intent to provide any benefit to a convict eligible for parole (because the offense occurred before November 1, 1987) who does not “remain[] incarcerated,” but rather is released on parole, and later is reimprisoned for violating a condition of parole.
Distinguishing between convicted defendants who are under a sentence of imprisonment for the offense to which the biological evidence relates, and those who are subsequently imprisoned because they violate release conditions, is also intelligible in terms of the underlying policies of section 3600A. The general purpose of section 3600A is to preserve biological evidence for possible post-conviction DNA testing. In formulating the statute, however, Congress did not create an unqualified requirement to preserve such evidence, but rather balanced the strength of defendants' interest in the potential availability of post-conviction DNA testing against the costs and burdens of requiring that evidence be retained following conviction in criminal cases, notwithstanding the fact that the defendants in these cases have already been proven guilty beyond a reasonable doubt or have pleaded guilty.
In striking this balance, the strength of defendants' interests is defined in part in terms of the severity and likelihood of the sanctions to which they are subject. For example, section 3600A is expressly inapplicable in relation to convicts whose sanctions include only non-incarcerative sentences, such as fines, probation, or payment of restitution, because in these circumstances no defendant is “under a sentence of imprisonment.” 18 U.S.C. 3600A(a). While a defendant under a sentence of probation may be confined, see 18 U.S.C. 3563(b)(9)-(11), (19), and may later be imprisoned if he violates release conditions,
Section 28.2(b)(4) in the regulations understands section 3600A as reflecting a similar legislative judgment in relation to the class of convicted defendants whose release is revoked. The interest of this class of convicts in the preservation of biological evidence is limited by the consideration that the resulting exposure to serious sanctions is generally much less than on original sentencing for an offense. On revocation of supervised release, for example, the convict is not resentenced for the original offense at all, but rather is exposed only to relatively limited periods of imprisonment in lieu of supervision as provided in 18 U.S.C. 3583(e)(3). As a practical matter, for both probation and supervised release violations, the resulting periods of imprisonment are normally limited in duration, and usually reflect the nature of the release condition violation and the convict's criminal history, rather than the character of the offense of conviction.
The foregoing considerations support the conclusion that, in the context of section 3600A, Congress would have regarded imprisonment on revocation of release as a sanction pertaining primarily to the release condition violation on which the revocation is premised, rather than “a sentence of imprisonment for [the] offense” of conviction in the sense of subsection (a) of section 3600A. Hence, § 28.2(b)(4) in the regulations explains that the reference in section 3600A(a) to a defendant “under a sentence of imprisonment for such offense” refers to a defendant who remains incarcerated pursuant to the sentence imposed by the court upon the defendant's conviction of the offense, as opposed to being incarcerated following some period of release based on a later violation of release conditions.
In addition to constituting the most plausible understanding based on the direct indicia of legislative intent, this reading of section 3600A simplifies and facilitates the implementation and administration of the statute's biological evidence preservation requirement. A contrary reading of the statute would mean that the applicability of the biological evidence preservation requirement could repeatedly come and go in the same case—inapplicable when the defendant initially receives a non-incarcerative sentence or is released following imprisonment, but later applicable, potentially following a lapse of years, if the convicted defendant violates a release condition and release is revoked. This complication in determining whether the biological evidence preservation requirement of section 3600A applies is avoided under the reading of the statute adopted in this rule.
Paragraph (c) of § 28.22 explains that the requirement to “preserve” biological evidence under section 3600A means that such evidence cannot be destroyed or thrown away, but does not otherwise limit agency discretion concerning the storage or handling of such evidence. The statute requires that biological evidence be preserved in the circumstances it specifies, but does not purport to regulate agency practices relating to the conditions under which evidence is maintained. Agencies accordingly have the same discretion in such practices as they did prior to the enactment of section 3600A. Also, section 3600A requires that “the Government” preserve biological evidence under specified circumstances, but does not require that this function be assigned to any particular agency. There are accordingly no resulting restrictions on interagency transfers of biological evidence.
Section 28.23 explains what types of evidence constitute “biological evidence” within the scope of section 3600A, construing the definition of “biological evidence” in subsection (b) of that section.
In approaching this issue, the regulations start from a recognition of the fact that practically anything secured in the investigation or prosecution of a criminal case will contain, or consist of, some matter derived from a living organism. For example, almost any object will at least have microorganisms on its surface, and if it has been in contact with human beings, it will also contain microscopic biological residues from that contact, such as sloughed off skin cells. Other items secured in a criminal case will often themselves consist of organic matter in a broad sense because the material they are made of is derived from living things—for example, paper made from wood pulp, or drugs like cocaine or opiates that are derived from plant material.
Hence, misunderstanding section 3600A as requiring the preservation of all evidence that is or contains something of a “biological” nature would effectively erase the distinction between “biological evidence” whose preservation is required under the statute and other forms of evidence, and would potentially entail the retention of vast amounts of evidence having no relationship to the legislative purpose underlying the enactment of section 3600A—
Section 28.23 in the regulations notes the statutory definition's self-explanatory coverage of “sexual assault forensic examination kit[s]” as biological evidence in subsection (b)(1) of section 3600A, and provides the necessary explanation and elaboration of the general definition of biological evidence in subsection (b)(2) (“semen, blood, saliva, hair, skin tissue, or other identified biological material”). Paragraph (b) in the regulation explicates the general definition as reflecting two key limitations:
First, only identified biological material is covered. This follows from section 3600A(b)(2), which defines covered biological evidence as “identified biological material,” and lists by way of illustration “semen, blood, saliva, hair, [and] skin tissue.” This limitation is significant because the human body is continually sloughing off skin cells and, as a result, virtually any physical object or thing that has been in contact with or sufficiently near human beings will contain microscopic
Second, biological material within the scope of the definition is limited to organic matter that may derive from the body of a perpetrator of the crime, and hence might be able to shed light on guilt or innocence through DNA testing under 18 U.S.C. 3600 by including or excluding the defendant as the source of the DNA in the material. This understanding follows from the legislative intent indicated by the listing of examples in section 3600A(b)(2)—“semen, blood, saliva, hair, skin tissue”—which covers the types of organic matter that are most likely to be left in identifiable form by perpetrators at crime scenes; from the enactment of section 3600A as a companion statute to 18 U.S.C. 3600, which authorizes post-conviction DNA testing in support of claims of actual innocence by applicants to determine whether they are the source of DNA in specific evidence; and from the underlying purpose of section 3600A to preserve evidence for possible DNA testing under 18 U.S.C. 3600.
Sections 28.24, 28.25, and 28.26 concern the exceptions to the biological evidence preservation requirement that appear in subsection (c) of section 3600A.
Section 28.24 notes the exceptions in subsection (c)(1) and (5) of the statute, which make the biological evidence retention requirement inapplicable if a court has denied a motion for DNA testing under 18 U.S.C. 3600 and no appeal is pending, or if there has been DNA testing under 18 U.S.C. 3600 and the results included the defendant as the source of the evidence. In such cases, the underlying purpose of section 3600A to preserve evidence for possible DNA testing under 18 U.S.C. 3600 is not served, and the statute accordingly provides that the evidence preservation requirement does not apply in these circumstances.
Section 28.25 explains the exceptions in subsection (c)(2)-(3) of the statute relating to waiver of DNA testing by the defendant, and to situations in which the defendant is given notice that biological evidence may be destroyed and does not file a motion for DNA testing under 18 U.S.C. 3600 within 180 days. Section 28.25, in paragraph (b)(3), also includes specifications concerning the procedures for notifying defendants concerning the potential destruction of biological evidence and for determining whether or not a motion under 18 U.S.C. 3600 has been filed within 180 days of such notice. Paragraph (b)(3) provides that notice may be provided by certified mail, and that the Federal Bureau of Prisons (BOP) is to create a record concerning its delivery. Existing BOP procedures already comply with this requirement.
Section 28.26 explains and discusses the application of the exception in subsection (c)(4) of the statute, which provides that biological evidence need not be retained if it must be returned to its owner or its retention is impracticable, so long as portions are preserved sufficient to permit DNA testing. Paragraphs (a) and (b) of § 28.26 identify common situations in which section 3600A(c)(4) does not have to be relied on to justify disposing of evidence that must be returned to its owner or whose retention is impracticable—and does not require the preservation of portions of such evidence if it is disposed of—because circumstances exist that make section 3600A entirely inapplicable to the evidence. The specific situations addressed are those in which the evidence is not retained past the investigative stage of a case and those in which the evidence does not constitute biological evidence as defined in section 3600A. Paragraph (c) of § 28.26 addresses situations in which section 3600A(c)(4) does have to be relied on to dispose of evidence that must be returned to the owner or whose retention is impracticable, and the requirement to preserve portions sufficient for future DNA testing in these situations.
This section of the regulations notes the specification in subsection (d) of section 3600A that section 3600A's biological evidence preservation requirement does not preempt or supersede other requirements to preserve evidence.
The final section of the new Subpart, § 28.28, concerns sanctions for violations. At a practical level, the greatest impact of the requirement of section 3600A and these regulations to preserve biological evidence secured in the investigation or prosecution of Federal offenses will be on the Department of Justice, because Department of Justice investigative agencies, and particularly the FBI, conduct most investigations of Federal offenses in which biological evidence may be secured, and because the litigating components of the Department of Justice conduct all prosecutions of Federal offenses. However, section 3600A requires “the Government”—not just agencies within the Department of Justice—to preserve biological evidence. Section 3600A and its implementing rule accordingly are not limited in their application to Justice Department components, but potentially affect all agencies of the Federal Government that may secure biological evidence in the investigation or prosecution of Federal offenses, or may become holders or custodians of such evidence after it is secured. All such agencies provide disciplinary sanctions for violations of statutory or regulatory requirements by their employees, and paragraph (a) of § 28.28 provides that employees who violate the provisions of section 3600A or this rule shall be subject to the disciplinary sanctions authorized by the
Section 3600A and these regulations will not, however, generally affect the Department of Defense and its components, since their investigative and prosecutorial jurisdiction relates to offenses under the Uniform Code of Military Justice (UCMJ), committed by members of the Armed Forces, who would be prosecuted in court martial proceedings. These are not investigations or prosecutions for a “Federal offense” within the meaning of 18 U.S.C. 3600A. Among other considerations, this is clear from the formulation of section 3600A's companion statute, 18 U.S.C. 3600, which requires that an application for post-conviction DNA testing be made to the court that entered the judgment of conviction for the relevant “Federal offense.” See 18 U.S.C. 3600(a). This is impossible in relation to UCMJ offenses, which are adjudicated by courts martial that are convened to try particular cases, and do not exist as permanent courts. Moreover, pre-enactment versions of the Innocence Protection Act would have applied the post-conviction DNA testing and biological evidence retention provisions to UCMJ offenses, dealing with the nonexistence of permanent military trial courts by specifying that postconviction DNA testing applications by military offenders would be presented to the district court having jurisdiction over the place where the court martial was convened. See S. 486, Rep. No. 315, 107th Cong., 2d Sess. (2002) (proposed 28 U.S.C. 2291(a), (i), 2292(a) in section 101). But the enacted statutes substituted provisions that include no affirmative mention of UCMJ offenses and whose application to UCMJ offenses is literally impossible. Hence, it is clear that Congress rejected the application of the new postconviction DNA testing and biological evidence preservation requirements in contexts that would affect the Department of Defense.
Paragraph (b) of § 28.28 notes that violations of section 3600A are also subject to criminal sanctions in certain circumstances, pursuant to subsection (f) of section 3600A.
Subsection (g) of section 3600A states that “[n]othing in this section shall provide a basis for relief in any Federal habeas corpus proceeding.” The inclusion of this provision in the statute reflects a legislative intent that section 3600A's requirements are to be enforced through the disciplinary sanctions referenced in subsection (e) of the statute and the criminal sanctions authorized by subsection (f) of the statute, rather than by enlarging the grounds for overturning criminal convictions in postconviction proceedings. Hence, a failure to preserve biological evidence as required by section 3600A does not provide any basis for a convict to challenge his or her conviction for the offense to which the evidence relates. Paragraph (c) of § 28.28 notes the means that are available and the means that are unavailable for the enforcement of section 3600A.
The implementation of this rule as an interim rule, with provision for post-promulgation public comments, is based on the exception found at 5 U.S.C. 553(a)(2) for “matter[s] relating to * * * public property,” and on the “good cause” exceptions found at 5 U.S.C. 553(b)(3)(B).
The “public property” exception found at 5 U.S.C. 553(a)(2) applies to “property held by the United States in trust or as guardian,” as well as to property owned by the Federal Government. H.R. Rep. No. 1980, 79th Cong., 2d Sess. 23 (1946); Attorney General's Manual on the Administrative Procedure Act 27 (1947). This rule concerns the requirement of 18 U.S.C. 3600A that the Government preserve biological evidence secured in the investigation or prosecution of Federal offenses. Hence, the rule is about the Government's management of property in its possession, and it involves matters relating to such property “clearly and directly.” H.R. Rep. No. 1980, 79th Cong, 2d Sess. 23 (1946). “Biological evidence” in the relevant sense is defined to mean “sexual assault forensic examination kit[s]” and “semen, blood, saliva, hair, skin tissue, or other identified biological material.” 18 U.S.C. 3600A(b). Normally, the Government exercises exclusive ownership of such property, in that no private party claims any right to or interest in its possession; the Government retains the property for as long as it is needed for evidentiary purposes; and the Government ultimately decides whether and when to dispose of the property, subject to legal requirements. Occasionally, biological evidence in the relevant sense is embedded in some larger object or item that must be returned to its owner—for example, blood-stained upholstery in a stolen car that was used in the commission of a crime.
Even in such a case, however, the Government acquires a sufficient proprietary interest in the item to function as its guardian while it is needed for evidentiary purposes, and to remove and preserve portions of it sufficient to permit DNA testing. See 42 U.S.C. 10607(c)(6) (Government to ensure that property of victim is maintained in good condition and returned when “it is no longer needed for evidentiary purposes”); 18 U.S.C. 3600A(c)(4) (Government to preserve portions sufficient to permit DNA testing where evidence must be returned to owner). The requirements of 5 U.S.C. 553 accordingly do not apply to this rule because it involves “matter[s] relating to * * * public property.” 5 U.S.C. 553(a)(2).
There are also features of 18 U.S.C. 3600A that indicate that Federal agencies need not implement the evidence preservation requirement until the Attorney General issues regulations, see 18 U.S.C. 3600A(e), and affected Federal agencies will have no authoritative guidance concerning the meaning of 18 U.S.C. 3600A's provisions until the Attorney General issues such regulations. Hence, delay in the issuance of an effective implementing rule could result in the loss or destruction of biological evidence that would otherwise be preserved pursuant to 18 U.S.C. 3600A. To the extent this occurred, it would thwart the objective of 18 U.S.C. 3600A to preserve biological evidence for purposes of possible DNA testing under 18 U.S.C. 3600—testing that might exonerate an innocent defendant who was wrongly convicted, or confirm guilt if the defendant was in fact the perpetrator. It would accordingly be contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b) or with the delayed effective date normally required under 5 U.S.C. 553(d).
The Department will carefully consider comments that it receives on this interim rule and will issue a final rule in as timely a manner as feasible. The Department seeks comment on an appropriate performance standard to ensure that biological evidence is preserved in a manner that will allow for effective DNA testing.
The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities for the following reason: The regulation concerns the preservation by the Federal Government of biological evidence secured in the investigation or prosecution of Federal offenses.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has been reviewed by the Office of Management and Budget.
This regulation 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. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Crime, Information, Law enforcement, Prisons, Prisoners, Records, Probation and parole.
28 U.S.C. 509, 510; 42 U.S.C. 14132, 14135a, 14135b; 10 U.S.C. 1565; 18 U.S.C. 3600A; Pub. L. 106-546, 114 Stat. 2726; Pub. L. 107-56, 115 Stat. 272; Pub. L. 108-405, 118 Stat. 2260.
Section 3600A of title 18 of the United States Code (“section 3600A”) requires the Government to preserve biological evidence that was secured in the investigation or prosecution of a Federal offense, if a defendant is under a sentence of imprisonment for such offense, subject to certain limitations and exceptions. The general purpose of this requirement is to preserve biological evidence for possible DNA testing under 18 U.S.C. 3600. Subsection (e) of section 3600A requires the Attorney General to promulgate regulations to implement and enforce section 3600A, including appropriate disciplinary sanctions to ensure that employees comply with such regulations.
(a) Applicability in general. The requirement of section 3600A to preserve biological evidence applies to evidence that has been retained in cases in which the offense or conviction occurred prior to the enactment of section 3600A or the adoption of this subpart, as well as to evidence secured in pending and future cases.
(b) Limitation to circumstances in which a defendant is under a sentence of imprisonment for the offense. The requirement of section 3600A to preserve biological evidence secured in the investigation or prosecution of a Federal offense begins to apply when a defendant is convicted and sentenced to imprisonment for the offense, and ceases to apply when the defendant or defendants are released following such imprisonment. The evidence preservation requirement of section 3600A does not apply in the following situations:
(1) Inapplicability at the investigative stage. The requirement of section 3600A to preserve biological evidence does not apply at the investigative stage of criminal cases, occurring prior to the conviction and sentencing to imprisonment of a defendant. Biological evidence may be collected and preserved in the investigation of Federal offenses prior to the sentencing of a defendant to imprisonment, reflecting sound investigative practice and the need for evidence in trial proceedings that may result from the investigation, but section 3600A does not govern these activities.
(2) Inapplicability to cases involving only non-incarcerative sentences. The requirement of section 3600A to preserve biological evidence does not apply in cases in which defendants receive only nonincarcerative sentences, such as probation, fines, or payment of restitution.
(3) Inapplicability following release. The requirement of section 3600A to preserve biological evidence ceases to apply when the defendant or defendants are released following imprisonment, either unconditionally or under supervision. The requirement does not apply during any period following the release of the defendant or defendants from imprisonment, even if the defendant or defendants remain on supervised release or parole.
(4) Inapplicability following revocation of release. The requirement of section 3600A to preserve biological evidence applies during a defendant's imprisonment pursuant to the sentence imposed upon conviction of the offense, as opposed to later imprisonment resulting from a violation of release conditions. The requirement does not apply during any period in which the defendant or defendants are imprisoned based on the revocation of probation, supervised release, or parole.
(c) Conditions of preservation. The requirement of section 3600A to preserve biological evidence means that such evidence cannot be destroyed or disposed of under the circumstances in which section 3600A requires its preservation, but does not limit agency
(a) Biological evidence generally. The evidence preservation requirement of section 3600A applies to “biological evidence,” which is defined in section 3600A(b). The covered evidence is sexual assault forensic examination kits under section 3600A(b)(1) and semen, blood, saliva, hair, skin tissue, or other identified biological material under section 3600A(b)(2).
(b) Biological evidence under section 3600A(b)(2). Biological evidence within the scope of section 3600A(b)(2) is identified biological material that may derive from a perpetrator of the offense, and hence might be capable of shedding light on the question of a defendant's guilt or innocence through DNA testing to determine whether the defendant is the source of the material. In greater detail, evidence within the scope of section 3600A(b)(2) encompasses the following:
(1) Identified biological material. Beyond sexual assault forensic examination kits, which are specially referenced in section 3600A(b)(1), section 3600A requires preservation only of evidence that is detected and identified as semen, blood, saliva, hair, skin tissue, or some other type of biological material. Section 3600A's preservation requirement does not apply to an item of evidence merely because it is known on theoretical grounds that physical things that have been in proximity to human beings almost invariably contain unidentified and imperceptible amounts of their organic matter.
(2) Material that may derive from a perpetrator of the crime. Biological evidence within the scope of section 3600A(b)(2) must constitute “biological material.” In the context of section 3600A, this term does not encompass all possible types of organic matter, but rather refers to organic matter that may derive from the body of a perpetrator of the crime, and hence might be capable of shedding light on a defendant's guilt or innocence by including or excluding the defendant as the source of its DNA.
In a murder case in which the victim struggled with the killer, scrapings of skin tissue or blood taken from under the victim's fingernails would constitute biological material in the sense of section 3600A(b)(2), and would be subject to section 3600A's requirement to preserve biological evidence, assuming satisfaction of the statute's other conditions. Such material, which apparently derives from the perpetrator of the crime, could potentially shed light on guilt or innocence through DNA testing under 18 U.S.C. 3600 to determine whether a defendant was the source of this material.
Biological material in the sense of section 3600A(b)(2) would not include the body of a murder victim who was shot from a distance, the carcasses of cattle in a meat truck secured in an investigation of the truck's hijacking, a quantity of marijuana seized in a drug trafficking investigation, or articles made from wood or from wool or cotton fiber. While such items of evidence constitute organic matter in a broader sense, they are not biological material within the scope of section 3600A(b)(2), because they do not derive from the body of a perpetrator of the crime, and hence could not shed light on a defendant's guilt or innocence through DNA testing under 18 U.S.C. 3600 to determine whether the defendant is the source of the evidence.
Subsection (c) of section 3600A makes the biological evidence preservation requirement inapplicable in two circumstances relating to the results of judicial proceedings:
(a) Judicial denial of DNA testing. Section 3600A(c)(1) exempts situations in which a court has denied a motion for DNA testing under 18 U.S.C. 3600 and no appeal is pending.
(b) Inclusion of defendant as source. Section 3600A(c)(5) exempts situations in which there has been DNA testing under 18 U.S.C. 3600 and the results included the defendant as the source of the evidence.
Subsection (c) of section 3600A makes the biological evidence preservation requirement inapplicable in two circumstances relating to action (or inaction) by the defendant:
(a) Waiver by defendant. Section 3600A(c)(2) makes the biological evidence preservation requirement inapplicable if the defendant knowingly and voluntarily waived DNA testing in a court proceeding conducted after the date of enactment,
(b) Notice to defendant. (1) Section 3600A(c)(3) makes the biological evidence preservation requirement inapplicable if the defendant is notified that the biological evidence may be destroyed “after a conviction becomes final and the defendant has exhausted all opportunities for direct review of the conviction,” and “the defendant does not file a motion under section 3600 within 180 days of receipt of the notice.”
(2) Effective notice concerning the possible destruction of biological evidence for purposes of section 3600A(c)(3) cannot be given if the case is pending on direct review of the conviction before a court of appeals or the Supreme Court, if time remains for the defendant to file a notice of appeal from the judgment of conviction in the court of appeals, or if time remains for the defendant to file a petition for certiorari to the Supreme Court following the court of appeals' determination of an appeal of the conviction.
(3) Once direct review has been completed, or the time for seeking direct review has expired, section 3600A(c)(3) allows notice to the defendant that biological evidence may be destroyed. The biological evidence preservation requirement of section 3600A thereafter does not apply, unless the defendant files a motion under 18 U.S.C. 3600 within 180 days of receipt of the notice. Notice to a defendant that biological evidence may be destroyed may be provided by certified mail, and the Federal Bureau of Prisons shall create a record concerning the delivery of such mail to an inmate. To determine whether a defendant has filed a motion under 18 U.S.C. 3600 within 180 days of receipt of such a notice, the agency providing the notice may obtain confirmation of delivery and the date of delivery by inquiry with the Federal Bureau of Prisons, and may ascertain whether the defendant has filed a motion under 18 U.S.C. 3600 within 180 days of that date by checking the records of the district court which entered the judgment of conviction of the defendant for the offense or asking the United States Attorney's office in that district.
Subsection (c)(4) of section 3600A provides that the section's biological evidence preservation requirement does not apply if “the evidence must be returned to its rightful owner, or is of such a size, bulk, or physical character as to render retention impracticable.” This exception is subject to the condition that the Government must “take[] reasonable measures to remove and preserve portions of the material
(a) Evidence not retained beyond the investigative stage. Section 3600A(c)(4) has no application if items of the sort it describes—
(b) Evidence not constituting biological material. It is rarely the case that a bulky item of the sort described in section 3600A(c)(4), or a large part of such an item, constitutes biological evidence as defined in section 3600A(b). If such an item is not biological evidence in the relevant sense, it is outside the scope of section 3600A. For example, the evidence secured in the investigation of a bank robbery may include a stolen car that was used in the getaway, and there may be some item in the car containing biological material that derives from a perpetrator of the crime, such as saliva on a discarded cigarette butt. Even if the vehicle is kept until a defendant is sentenced to imprisonment, section 3600A's preservation requirement would not apply to the vehicle as such, because the vehicle is not biological material. It would be sufficient for compliance with section 3600A to preserve the particular items in the vehicle that contain identified biological material or portions of them that contain the biological material.
(c) Preservation of portions sufficient for DNA testing. If evidence described in section 3600A(c)(4) is not otherwise exempt from the preservation requirement of section 3600A, and section 3600A(c)(4) is relied on in disposing of such evidence, reasonable measures must be taken to preserve portions of the evidence sufficient to permit future DNA testing. For example, considering a stolen car used in a bank robbery, it may be the case that one of the robbers was shot during the getaway and bled all over the interior of the car. In such a case, if the car is kept until a defendant is sentenced to imprisonment for the crime, there would be extensive biological material in the car that would potentially be subject to section 3600A's requirement to preserve biological evidence. Moreover, the biological material in question could not be fully preserved without retaining the whole car or removing and retaining large amounts of matter from the interior of the car. Section 3600A(c)(4) would be relevant in such a case, given that fully retaining the biological evidence is likely to be impracticable or inconsistent with the rightful owner's entitlement to the return of the vehicle. In such a case, section 3600A(c)(4) could be relied on, and its requirements would be satisfied if samples of the blood were preserved sufficient to permit future DNA testing. Preserving such samples would dispense with any need under section 3600A to retain the vehicle itself or larger portions thereof.
Section 3600A's requirement to preserve biological evidence applies cumulatively with other evidence retention requirements. It does not preempt or supersede any statute, regulation, court order, or other provision of law that may require evidence, including biological evidence, to be preserved.
(a) Disciplinary sanctions. Violations of section 3600A or of this subpart by Government employees shall be subject to the disciplinary sanctions authorized by the rules or policies of their employing agencies for violations of statutory or regulatory requirements.
(b) Criminal sanctions. Violations of section 3600A may also be subject to criminal sanctions as prescribed in subsection (f) of that section. Section 3600A(f) makes it a felony offense, punishable by up to five years of imprisonment, for anyone to knowingly and intentionally destroy, alter, or tamper with biological evidence that is required to be preserved under section 3600A with the intent to prevent that evidence from being subjected to DNA testing or prevent the production or use of that evidence in an official proceeding.
(c) No effect on validity of convictions. Section 3600A's requirements are enforceable through the disciplinary sanctions and criminal sanctions described in paragraphs (a) and (b) of this section. A failure to preserve biological evidence as required by section 3600A does not provide a basis for relief in any postconviction proceeding.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine on February 25, 2004 and December 9, 2004 which includes the Maine Low Emission Vehicle (LEV) Program. It was proposed for approval on January 24, 2005 (70 FR 3335). EPA received an adverse comment on the proposal, which is addressed in this action. The regulations adopted by Maine include the California LEV I light-duty motor vehicle emission standards beginning with model year 2001, the California LEV II light-duty motor vehicle emission standards effective in model year 2004, the California LEV I medium-duty standards effective in model year 2003, and the smog index label specification effective model year 2002. The Maine LEV regulation submitted does not include any zero emission vehicle (ZEV) requirements. Maine has adopted these revisions to reduce emissions of volatile organic compounds (VOC) and nitrogen oxides (NO
Effective Date: This rule will become effective on May 31, 2005.
EPA has established a docket for this action under Regional Material in EDocket (RME) Docket ID Number R01-OAR-2004-ME-0004. All documents in the docket are listed in
Copies of the documents relevant to this action are also available for public inspection during normal business hours, by appointment at the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-108, 1301 Constitution Avenue, NW., Washington, DC; and the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017.
Robert C. Judge, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, (617) 918-1045,
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine on February 25, 2004 and December 9, 2004 which includes the Maine Low Emission Vehicle (LEV) Program. It was proposed for approval on January 24, 2005 (70 FR 3335). EPA received an adverse comment on the proposal from PretiFlaherty, a law firm representing the Maine Automobile Dealers Association (MADA) by letter dated February 22, 2005. MADA had two comments.
First, MADA argued that “Maine's LEV program is not consistent with the requirement of the Clean Air Act because Maine's program does not contain a denial of registration provision.” And as a result, this effects the level of emission reductions from the program and as such is not identical to California's program as required by section 177 of the Clean Air Act. Second, MADA takes exception to our reference to Executive Order 13132, where we assert that this will not affect the distribution of power between Maine and EPA under the Clean Air Act, because, in MADA's opinion, the fact that it is approved into the SIP “gives EPA veto power/approval control over any subsequent amendments * * *” to Maine's regulations.
On the first point, MADA contends that Maine's enforcement scheme is less effective than one which denies registration to new vehicles which are not LEV certified. EPA and Maine agree, which is why Maine suggested and EPA proposed that Maine should achieve 90 percent of the benefit that a program which does deny registration to a vehicle which is not certified as LEV. However, the Clean Air Act does not require that these LEV programs include registration denial for new vehicles in a given State which are not LEV certified. In order to achieve the full environmental benefits of the LEV program, California did not and does not allow new vehicles which are not LEV certified to be registered in their State. When Massachusetts and New York adopted their versions of the California LEV program, they enforced it the same way. EPA approved those programs into the SIP, and provided those States with emission reduction credit assuming all newer vehicles in those States would be California certified. Since Maine is not assured of that same fact, it was not proposed to be awarded the same amount of credit. (As stated in the NPR , EPA currently estimates that a registration-based California LEV program will provide about 1 percent additional reductions in mobile source VOC and 2 percent in air toxics over the Federal Tier 2 program in 2020 with the program beginning in 2004. We expect no discernible NO
Section 177 of the Clean Air Act requires any State which is adopting a new motor vehicle emissions program, to adopt standards which are identical to those in California. This section does not require the adopting State to incorporate all the provisions contained in California's emissions program. Enforcement provisions, for example, need not be identical. However, section 177 prohibits States from adopting any standards which could have the effect of creating a third vehicle. As Maine's program is enforced, no such “third vehicle” would be created by the fact that new Federal tier 2 vehicles might be registered in Maine based on their enforcement scheme. It does not establish a new standard for vehicle manufacturers to meet. It is also instructive to note that, in the cases of California, Massachusetts and New York, used vehicles which have more than 7,500 miles on the odometer, may be registered in these States, regardless of whether or not they are LEV certified. Because of the fact that used vehicles may be sold into these States at different rates could effect each programs' actual benefits. Further, even minor differences in each State's ability to ensure that only California-certified new vehicles are registered could also effect each programs' benefits. However, we do not believe that this in any way creates a third car or violates the intent of section 177 of the CAA regarding identicality.
It is instructive to note that no automobile manufacturer or association supported MADA's contention regarding this issue of creating a “third car.” EPA does believe that the Federal tier 2 program is an effective pollution control strategy, achieving most of the reductions that the California program achieves. We agree with MADA that the Maine LEV program would be more effective in Maine at achieving pollution reductions if such a registration-based program were implemented. However, EPA does not believe that Maine's lack of such an enforcement scheme in any way violates section 177 of the CAA.
On the second point, we do not agree. EPA is approving an existing state rule, and EPA's approval of that rule does not in any way effect the rule that has been promulgated by the State. Chapter 127 is presently in effect in Maine, and EPA's approval does not impact the distribution of power between EPA and Maine, as discussed in Executive Order 13132. It is true that if, in the future, Maine utilizes the emission reductions from this program as part of its strategy to ensure clean air for its citizens as part of its State Implementation Plan (SIP), EPA may object to subsequent State-initiated changes to this rule which relax the level of pollution reductions from the strategy. But EPA would only do so if the State were not replacing the emission reductions which were incorporated into the SIP. In all cases, except when the Clean Air Act prescribes a specific control measure, States are free to modify their air quality strategies in the SIP as long as they maintain the level of reductions necessary to achieve its clean air
Other specific requirements of Maine's program and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 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 SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 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 June 27, 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(58) Revisions to the State Implementation Plan submitted by the Maine Department of Environmental Protection on February 25, 2004 and December 9, 2004 submitting Maine's Low Emission Vehicle Program.
(i) Incorporation by reference.
(A) Chapter 127 of the Maine Department of Environmental Protection rules entitled “New Motor Vehicle Emission Standards” with an effective
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an extension of the temporary exemption from the requirement of a tolerance for residues of
This regulation is effective April 28, 2005. Objections and requests for hearings must be received on or before June 27, 2005.
To submit a written objection or hearing request follow the detailed instructions as provided in Unit VIII. of the
Sharlene Matten, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 605-0514; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111)
• Animal production (NAICS code 112)
• Food manufacturing (NAICS code 311)
• Pesticide manufacturing (NAICS code 32532)
This listing 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 this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to using EDOCKET
On July 26, 2004, Syngenta Seeds, 3054 Cornwallis Road, Research Triangle Park, NC 27709-2257 submitted a petition (PP 3G6547) to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA), requesting that the temporary tolerance exemption for
On September 15, 2004, EPA published a Notice in the
The National Cotton Council and a private citizen each submitted comments in response to the September 15, 2004 Notice. That same private citizen also submitted similar comments in response to the March 16, 2005 Notice. In addition, a second private citizen submitted comments in response to the March 16, 2005 Notice. The National Cotton Council supported issuance of the temporary tolerance. The first private citizen, however, objected to the issuance of the temporary tolerance based on unspecified environmental and human health effects. The second private citizen objected to the issuance of the temporary tolerance based on possible environmental and health effects of programmed cell death. The Agency understands the commenters' concerns. Pursuant to its authority under the Federal Food, Drug, and Cosmetic Act (FFDCA), EPA has conducted an assessment of the VIP3A insect control proteins and the genetic material necessary for their production in cotton. EPA has concluded that there is a reasonable certainty that no harm will result from dietary exposure to this protein as expressed in cotton
.Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe ” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of the FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Data have been submitted demonstrating the lack of mammalian toxicity at high levels of exposure to the pure VIP3A proteins. This is similar to the Agency position regarding toxicity of
In examining aggregate exposure, section 408 of the FFDCA directs EPA to consider available information
The Agency has considered available information on the aggregate exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide chemical residue and to other related substances. These considerations include dietary exposure under the tolerance exemption and all other tolerances or exemptions in effect for the vegetative-insecticidal protein chemical residue, and exposure from non-occupational sources.
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2.
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Pursuant to FFDCA section 408(b)(2)(D)(v), EPA has considered available information on the cumulative effects of such residues and other substances that have a common mechanism of toxicity. These considerations included the cumulative effects on infants and children of such residues and other substances with a common mechanism of toxicity. Because there is no indication of mammalian toxicity to the VIP3A protein, it is reasonable to conclude that there are no cumulative effects for this vegetative-insecticidal protein.
FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(B)(2)(C) also provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety (MOS) will be safe for infants and children. In this instance, based on the available data, the Agency concludes that there is a finding of no toxicity for VIP3A proteins and the genetic material necessary for their production. In the absence of any threshold effects of concern, the Agency has determined that the additional margin of safety is not necessary to protect infants and children. Further, the provisions of consumption patterns, special susceptibility, and cumulative effects do not apply.
The safety data submitted show no adverse effects in mammals, even at very high dose levels, and support the prediction that the VIP3A protein would be non-toxic to humans. Therefore no effects on the immune or endocrine systems are expected.
Validated methods for extraction and direct ELISA analysis of VIP3A in cotton seed have been submitted and found acceptable by the Agency.
No Codex maximum residue levels exist for the vegetative-insecticidal protein
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP -2005 -0083 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before June 27, 2005.
1.
Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.
2.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes an extension of the temporary exemption from the tolerance requirement under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
Environmental Protection Agency.
Deletion of the Syosset Landfill Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region 2 Office announces the deletion of the Syosset Landfill Superfund Site, in the Town of Oyster Bay, Nassau County, New York from the National Priorities List (NPL). The NPL is appendix B to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended. EPA and the State of New York, through the Department of Environmental Conservation (NYSDEC), have determined that responsible parties or other persons have implemented all appropriate response actions required. In addition, EPA and the NYSDEC have determined that the remedial measures taken at the Syosset Landfill Site protect public health, welfare, and the environment.
April 28, 2005.
Sherrel D. Henry, Remedial Project Manager, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 20th Floor, New York, New York 10007-1866, (212) 637-4273.
The site to be deleted from the NPL is: Syosset Landfill Superfund Site, Town of Oyster Bay, Nassau County, New York.
A Notice of Intent to Delete for this site was published in the
The EPA maintains the NPL as the list of those sites that appear to present a significant risk to public health or the environment. Sites on the NPL can have remedial actions financed by the Hazardous Substances Response Fund. As described in § 300.425(e)(3) of the NCP, any site or portion thereof deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the site warrant such action in the future. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.
Environmental protection, Air pollution controls, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Fish and Wildlife Service, Interior.
Final rule.
The Fish and Wildlife Service is amending a portion of the Lower St. Johns River Manatee Refuge area in Duval County, Florida, to provide for both improved public safety and increased manatee protection through improved marking and enforcement of the manatee protection area. Specifically, that portion of this manatee protection area which lies downstream of the Hart Bridge to Reddie Point will be modified to allow watercraft to travel up to 25 miles per hour (mph) in a broader portion of the St. Johns River to include areas adjacent to but outside of the navigation channel. Watercraft traveling near the banks of the river will be required to travel at slow speed much as they do now. The primary exception will be around Exchange Island where the coverage of the existing State and local slow-speed zones will be expanded. However, in the main portion of the river, watercraft will be allowed to travel at speeds up to 25 mph. The manatee protection area will also be expanded approximately one mile further downstream, to the extent it was originally proposed (68 FR 16602; April 4, 2003), in order to be consistent with existing State and local governmental manatee protection measures and thereby facilitate compliance. This modification is supported by State and local government and parties to the March 18, 2003, Stipulated Order which resulted in the initial rulemaking for this manatee protection area.
The current configuration of the manatee protection area is not supported by the State of Florida or Duval County. While the Service is committed to enforcing these current protection measures, State and local government would normally provide a substantial portion of the enforcement
Establishment of manatee protection areas is authorized under the Endangered Species Act of 1973, as amended (ESA), and the Marine Mammal Protection Act of 1972, as amended (MMPA), to further recovery of the Florida manatee (Trichechus manatus latirostris) by preventing the taking of one or more manatees. We also announce the availability of a final environmental assessment for this action. Under authority of 5 U.S.C. 553, we find good cause to make this rule final without prior opportunity for public comment because public notice and comment on the rule is contrary to the public interest. However, the public may provide comments on this final rule at any time to the address in the
This rule is effective April 28, 2005.
The complete file for this rule is available for inspection, by appointment, during normal business hours at the Jacksonville Field Office, U.S. Fish and Wildlife Service, 6620 Southpoint Drive, South, Suite 310, Jacksonville, Florida 32216.
David Hankla or Chuck Underwood (see
The West Indian manatee is federally listed as an endangered species under the ESA (16 U.S.C. 1531
Human activities, and particularly waterborne activities, are resulting in the incidental take of manatees. Take, as defined by the ESA, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. Harm means an act which kills or injures wildlife (50 CFR 17.3). Such an act may include significant habitat modification or degradation that kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass includes intentional or negligent acts or omissions that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering (50 CFR 17.3).
The MMPA sets a general moratorium, with certain exceptions, on the take and importation of marine mammals and marine mammal products (section 101(a)) and makes it unlawful for any person to take, possess, transport, purchase, sell, export, or offer to purchase, sell, or export, any marine mammal or marine mammal product unless authorized. Take, as defined by section 3(13) of the MMPA means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Harassment is defined under the MMPA as any act of pursuit, torment, or annoyance which—(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.
Humans can cause take of manatees by both direct and indirect means. Direct takings include injuries and deaths from watercraft collisions, deaths from water control structure operations, lethal and sublethal entanglements with recreational and commercial fishing gear, and alterations of behavior due to harassment. Indirect takings can result from habitat alteration and destruction, such as the creation and/or subsequent cessation of artificial warm water refuges, decreases in the quantity and quality of warm water in natural spring areas, changes in water quality in various parts of the State, the introduction of marine debris, and other, more general disturbances. Indirect takings may also result from the construction of docks, boat ramps, and marinas if they lead to increased boat traffic in areas of regular manatee use and manatee protection measures are not in place.
Collisions with watercraft are the largest cause of human-related manatee deaths. Data collected during manatee carcass salvage operations in Florida indicate that more than 1,200 manatees are confirmed victims of collisions with watercraft from 1980 through 2004. Collisions with watercraft comprise nearly 25 percent of all manatee mortalities in that timeframe. Approximately 75 percent of watercraft-related manatee mortality has taken place in 11 Florida counties (Brevard, Lee, Collier, Duval, Volusia, Broward, Palm Beach, Charlotte, Hillsborough, Citrus, and Sarasota) (Florida Fish and Wildlife Commission's Florida Wildlife Research Institute Manatee Mortality Database, 2005).
To minimize the number of injuries and deaths associated with watercraft activities, we and the State of Florida have designated manatee protection areas at sites throughout coastal Florida where conflicts between boats and manatees have been well documented and where manatees are known to frequently occur. Federal authority to establish protection areas for the Florida manatee is provided by the ESA and the MMPA, and is codified in 50 CFR, part 17, subpart J. We have discretion, by regulation, to establish manatee protection areas whenever substantial evidence shows such establishment is necessary to prevent the taking of one or more manatees (that is, to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct).
We may establish two types of manatee protection areas: manatee refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR 17.102, is an area in which we have determined that certain waterborne activities would result in the taking of one or more manatees, or that certain waterborne activities must be restricted to prevent the taking of one or more manatees, including but not limited to, a taking by harassment. A manatee sanctuary is an area in which we have determined that any waterborne activity would result in the taking of one or more manatees, including but not limited to, a taking by harassment. A waterborne activity is defined as including, but not limited to, swimming, diving (including skin and scuba diving), snorkeling, water skiing, surfing, fishing, the use of water vehicles, and dredge and fill activities.
The Lower St. Johns River Manatee Refuge was established to prevent the taking of manatees resulting from collisions with watercraft. After public review and comment, the regulation establishing the refuge was published on August 6, 2003, in the
This rulemaking revises the restrictions downstream of the Hart Bridge. Watercraft traveling within 300 feet of the left descending bank of the river will be required to travel at slow speed (see map in the rule portion of this document). Watercraft traveling within an area approximately 1,000 feet from the right descending bank of the river, including that portion of the river between Exchange Island and the right descending bank, and approximately 300 feet channel-ward of Exchange Island, will also be required to travel at slow speed. However, in the remaining portion of the river, watercraft will be allowed to travel at speeds up to 25 mph.
This modification to the current configuration will eliminate some restrictions and provide a greater margin of safety between recreational boaters proceeding at speeds up to 25 mph and large private and commercial vessels. Under the current regulation, any boats traveling at greater than slow speed must travel in the channel. This means that operators of small recreational craft must choose either to share a relatively narrow channel with very large vessels, or travel perhaps several miles at slow speed. The State and county government officials believe that many will opt to share the channel with the larger vessels, unnecessarily placing them in a more dangerous environment. The Service is required under a March 18, 2003, Stipulated Order (
The manatee protection area will also be expanded approximately one mile further downstream, to the extent it was originally proposed at Reddie Point (68 FR 16601; April 4, 2003). Thus, this rule adopts the current State and local speed zone buffer configuration along the shoreline of the river which will facilitate improved signage and enforcement. There were no comments regarding the Reddie Point boundary in the initial rulemaking. We revised the initial proposed boundary here (slow speed, 25 mph in the channel) because of limitations on our ability to mark the channel boundary.
This action will also allow for some signs on wooden posts marking the boundaries of the manatee protection area to be replaced with buoys. This will reduce the danger associated with a collision with these markers.
Finally, this modification also resolves objections of State and local enforcement agencies, who have agreed to assist in enforcing this area as modified. Increased enforcement will improve the effectiveness of the protection measures not only for the benefit of manatees, but for human safety as well.
Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 500
The APA also provides that agencies must wait a minimum of 30 days before making a rule effective. However, as described above, this rule will modify the manatee protection area to prevent a public safety issue from occuring. The modification affects only a fraction of the overall manatee protection area and will be posted at the same time as the remainder of the area in order to meet the terms of the Stipulated Order. Because delay in implementing the revisions can only result in increased risks to both humans and manatees, it is appropriate to make the rule effective immediately. Therefore, pursuant to section 553(d)(3) of the APA, the Service is making this rule effective immediately. However, the Service will accept comments on this rule at any time.
In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. The Office of Management and Budget makes the final determination under Executive Order 12866.
This rule will not have an annual economic impact of over $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A quantitative assessment of the costs and benefits is not required, nor is consideration of alternatives. No significant economic impacts would result from this modification of the existing manatee refuge impacting approximately 5.5 river miles in one county in the State of Florida.
The purpose of this rule is to modify an existing manatee protection area in the St. Johns River, Duval County, Florida, to provide for a greater margin of safety for recreational boaters and improve manatee protection through better enforcement and compliance. The economic impacts of this rule are due to the previously described changes in speed zone restrictions in the manatee refuge. We will experience increased administrative costs of approximately $365,000 due to modified posting requirements. Conversely, the rule may also produce some minimal though undeterminable economic benefits associated with recreational boating and commercial crabbing, as a result of faster travel times through a larger area.
The precedent to establish manatee protection areas has been established primarily by State and local governments in Florida. We recognize the important role of State and local partners, and we continue to support and encourage State and local measures to improve manatee protection.
This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Minimal restrictions to existing human uses of the sites will result from this rule. No entitlements, grants, user fees, loan programs or the rights and obligations of their recipients are expected to occur.
This rule will not raise novel legal or policy issues. We have previously established manatee protection areas.
For the reasons set forth in our rule of August 6, 2003 (68 FR 46896), we certify that this rule will not have a
This rule is not a major rule under 5. U.S.C. 804 (2). This rule:
a. Does not have an annual effect on the economy of $100 million or more. The primary effect of the rule is to ease restrictions on boat speeds in a portion of the river to improve safety. There will be no adverse effects on any businesses.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. There will be no changes in costs or prices for consumers stemming from this rule.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. There will be no adverse effects to any segment of the community.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule is not a significant regulatory action under Executive Order 12866 and has a limited effect on boat speeds, it is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The designation imposes no new obligations on State or local governments.
b. This rule will not produce a Federal mandate of $100 million or greater in any year,
In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required. The manatee protection area is located over State-or privately-owned submerged bottoms. Navigational access to private property is not affected.
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. This rule will not have substantial direct effects on the State, in the relationship between the Federal Government and the State, or on the distribution of power and responsibilities among the various levels of government. The State of Florida and local government support the development of this rule.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This regulation does not contain collections of information that require approval by the Office of Management and Budget (OMB) under 44 U.S.C. 3501
We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment has been prepared and is available for review upon request by writing to the Field Supervisor (see
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects.
A complete list of all references cited in this rule is available upon request from the Jacksonville Field Office (see
The primary author of this document is David Hankla (see
The authority to establish manatee protection areas is provided by the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(c) * * *
(11)
(i) The Lower St. Johns River Manatee Refuge is described as portions of the St. Johns River and adjacent waters in Duval, Clay, and St. Johns Counties from Sandfly Point (the intersection of the right descending bank of the Trout River and the left descending bank of the St. Johns River) and Reddie Point, as
(ii) In the St. Johns River from Sandfly Point on the left descending bank of the St. Johns River and Reddie Point on the right descending bank of the St. Johns River, upstream to the Hart Bridge, a distance of approximately 5.5 miles (8.8 km), watercraft are required to proceed at slow speed, year-round, within 300 feet (91 m) of the shoreline on the left descending bank of the St. Johns River and within a buffer as marked, typically about 1,000 feet (305 m) from the shoreline along the right descending bank of the river. The slow speed designation also includes that portion of the river between Exchange Island and the right descending bank, a marked buffer approximately 300 feet (91 m) along the west (channel-ward) shoreline of Exchange Island, and a portion of the Arlington River as marked. Watercraft are also required to proceed at not more than 25 miles per hour (40 km/h), year round, in the area posted as such between these slow speed shoreline buffers. See map of “St. Johns River Bridges Area” in paragraph (11)(vi) of this section.
(iii) From the Hart Bridge to the Main Street Bridge, a distance of approximately 2 miles (3.2 km), watercraft are required to proceed at slow speed, year-round, outside the marked navigation channel and at speeds of not more than 25 miles per hour (40 km/h) in the marked channel (from Channel Marker “81” to the Main Street Bridge, the channel is defined as the line of sight extending west from Channel Markers “81” and “82” to the fenders of the Main Street Bridge). See map of “St. Johns River Bridges Area” in paragraph (11)(vi) of this section.
(iv) From the Main Street Bridge to the Fuller Warren Bridge, a distance of approximately 1 mile (1.6 km), shoreline to shoreline, watercraft are required to proceed at slow speed (channel included), year-round. See map of “St. Johns River Bridges Area” in paragraph (11)(vi) of this section.
(v) Upstream of the Fuller Warren Bridge: for a distance of approximately 19.3 miles (31.1 km) along the left descending bank of the St. Johns River, watercraft are required to proceed at slow speed, year-round, in a 700-foot (213 m) to 1,000-foot (305 m) as-marked, shoreline buffer from the Fuller Warren Bridge to the south bank of the mouth of Peter's Branch in Clay County; for a distance of approximately 20.2 miles (32.5 km) along the right descending bank of the St. Johns River, watercraft are required to proceed at slow speed, year round, in a 700-foot (213 m) to 1,000-foot (305 m) as marked, shoreline buffer from the Fuller Warren Bridge to the south bank of the mouth of Julington Creek in St. Johns County (defined as a line north of a western extension of the Nature's Hammock Road North); and in Doctors Lake in Clay County watercraft are required to proceed at slow speed, year-round, in a 700-foot (213 m) to 900-foot (274 m) as-marked, shoreline buffer (approximately 12.9 miles (20.8 km)). See map of “Lower St. Johns River” in paragraph (11)(vi) of this section.
(vi) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule, 2005 specifications.
NMFS announces final specifications for the 2005 fishing year for the Atlantic herring (herring) fishery, which will be maintained through the 2006 fishing year unless stock and fishery conditions change substantially. This action includes one minor regulatory language change that reflects a previously approved measure in the Fishery Management Plan for Herring (FMP). The intent of this final rule is to promote the development and conservation of the herring resource.
Effective May 31, 2005, through December 31, 2006.
Copies of supporting documents, including the Environmental Assessment, Regulatory Impact Review, Final Regulatory Flexibility Analysis (EA/RIR/FRFA), and Essential Fish Habitat Assessment are available from Paul J. Howard, Executive Director, New England Fishery Management Council (Council), 50 Water Street, Mill 2, Newburyport, MA 01950. The EA/RIR/FRFA is accessible via the Internet at
Eric Jay Dolin, Fishery Policy Analyst, 978-281-9259, e-mail at
Proposed 2005 specifications were published on January 31, 2005 (70 FR 4808), with public comment accepted through March 2, 2005. The final specifications are unchanged from those that were proposed. A complete discussion of the development of the specifications appears in the preamble to the proposed rule and is not repeated here.
The following specifications are established by this action: Allowable
These specifications will be maintained for 2006, unless stock and fishery conditions change substantially. The Council's Herring Plan Development Team (PDT) will update and evaluate stock and fishery information during 2005, and the Council and NMFS may determine, based on the review by the Herring PDT, that no adjustments to the specifications are necessary for the 2006 fishing year. Maintaining the specifications for 2 years would provide the Council with an opportunity to complete the development of Amendment 1 to the FMP, which may implement a limited access program for the herring fishery in addition to other management measures, including possible adjustments to the specification process.
This action also removes references to the dates by which the proposed and final rules for the annual specifications must be published, because it is not necessary to specify these dates in regulatory text. This regulatory language change is a matter of agency procedure and is consistent with previously approved measures.
There were 22 comments received. Similar comments have been grouped together. Commenters included the Council, Maine Department of Marine Resources, Conservation Law Foundation, Ocean Conservancy, five recreational fishermen, three private citizens, three commercial fishermen, and one charter boat fisherman. Six industry members and associations submitted comments: Cape Seafoods, Inc.; American Pelagic Association; East Coast Pelagic Association; East Coast Tuna Association; the Coalition for the Atlantic Herring Fishery's Orderly, Informed and Responsible Long Term Development; and the Associated Fisheries of Maine.
The Council applied average herring biomass estimates from the 1960-1970 time period to form the basis for a B
“Available information does not provide a clear answer to the question of whether or not harvest at current levels will jeopardize the inshore component of the resource. However, harvest levels for the Atlantic herring fishery have been relatively consistent for many years, and available data suggest that the inshore component of the stock is stable and has not experienced significant declines in biomass under these harvest levels. Without any biological targets or benchmarks specifically for the inshore component of the resource, the Herring Plan Development Team/Technical Team (PDT/TC) cannot [state] with certainty that maintaining harvest of this stock component at or near current levels will not cause a decline in biomass. Nevertheless, given a long time series of relatively consistent catch and stable surveys, the PDT/TC is comfortable concluding that no significant declines in the inshore component of the resource should be expected under harvest
The SSC met on June 19, 2003, and came to a similar conclusion, which it reported to the Council:
“In general, for the stock complex as a whole, current catch levels appear to be producing a biomass that is at least stable, if not increasing over time. No severe declines in the stock complex should be expected by maintaining current levels of catches over the short-term; however, the current concentration of harvest in the inshore Gulf of Maine is of concern and may be excessive. The areal effects of the catch distribution and risks to individual stock components may overwhelm any potential risks to the resource as a whole. It is critical that the risk associated with overfishing a specific stock component be minimized. While there is little risk associated with maintaining current catch levels over the short-term, monitoring the movement of larger year classes through the fishery will be important to ensure sustainable catches over the long-term.”
Furthermore, biological concerns are not the only basis for the decision to maintain the Area 1A TAC at 60,000 mt. The Council's economic analysis predicted, “losses of $25,000 to $238,000 per year per vessel for the Maine purse seine fleet under an Area 1A TAC of 45,000 mt...Similarly, processing plants most reliant on fish from Area 1A would experience negative impacts associated with the loss of supply and/or market and employment effects resulting from inconsistent supply under a lower TAC in Area 1A.” NMFS agrees with the Council, “That impacts of such magnitude are [not] justified at this time, given the lack of conclusive biological information to support such reductions.”
In light of the SSC advice, NMFS is concerned about the possibility that maintaining an inshore harvest of 60,000 mt for the long term might be excessive for the inshore stock component. NMFS concludes that the Council's specifications process, which will include the evaluation of the status of the stock and any new data in 2005, allows the Council and NMFS to ensure that the inshore stock is appropriately managed. This would provide an opportunity to reduce the Area 1A TAC if new biological information indicates that is necessary in 2006.
One of the specific concerns noted by the commenters is that there has been localized depletion of herring due to fishing activity, especially mid-water trawling. There is, however, no scientific evidence that suggests that mid-water trawling causes any long-term dispersal of herring or that it is problematic with respect to the health and sustainability of the herring stock in U.S. waters, either from a fishery or an ecosystem perspective. Countless observations during herring acoustic cruises conducted by NMFS during 1997-2001 indicate nothing more than short-term disturbance of herring during mid-water trawling and acoustic surveying operations. Fishing operations by at least a dozen large mid-water trawlers conducted over a several-month period during 2001 on Georges Bank caused no apparent changes in the distribution of pre-spawning herring as evidenced by hydroacoustic surveys conducted by NMFS. In addition, a recent study of the spatial dynamics of the Gulf of Maine-Georges Bank herring complex showed that herring maintained their school structure and interschool integrity during the 1970s, despite very large reductions in stock biomass. Another recent examination of data for the inshore (Gulf of Maine) herring resource suggests that this component of the overall resource is stable and much larger than it was in the 1970s and early 1980s. NMFS, nevertheless, is continuing to monitor the impacts of the fishery on herring behavior, and the results of such monitoring will inform future management of the resource. In addition, there will be a full discussion of the importance of herring as forage for other species in Amendment 1 to the FMP, which is currently being developed by the Council.
While the commenter contended that the TACs proposed by NMFS provide the potential for only a 12-percent increase in landings from Area 1 and Area 3 when compared to 2001, the commenter provided no evidence that landings from those areas are expected to increase beyond that level. In addition, NMFS is unable to duplicate this calculation. In 2001, the TAC was attained in Area 1 (1A and 1B combined), with landings of 70,432 mt and a combined TAC of 70,000.
The commenter also expressed concern that the Area 2 TAC of 30,000 mt is only slightly higher than the highest recent level of landings from the area, 27,198 mt in 2000. NMFS notes that the TAC of 30,000 mt allows for considerable expansion in landings when compared to landings in more recent years. While the 2001 landings levels demonstrate that the fishery is able to harvest higher amounts from Area 3, landings have not exceeded 20,266 mt since 2001. NMFS concludes that the inseason adjustment provision provides a mechanism to address any problems that could arise for the industry if landings approach the 30,000-mt level in 2005.
As noted by the commenters, the Council will be examining a range of alternatives in Amendment 1 that are intended to prevent overfishing of discrete spawning components, as well as provide for the orderly development of the offshore and inshore fisheries.
NMFS notes that the FMP specifically allows USAP vessels to exceed the vessel size limits that apply to fishing vessels.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Included in this final rule is the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the discussion that follows, the comments and responses to the proposed rule, and the initial regulatory flexibility analysis (IRFA) and other analyses completed in support of this action. No comments were received on the IRFA. A copy of the IRFA is available from the Regional Administrator (see
A description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to the proposed rule and is not repeated here.
During the 2003 fishing year, 154 vessels landed herring, 38 of which averaged more than 2,000 lb (907 kg) of herring per trip. There are no large entities, as defined in section 601 of the RFA, participating in this fishery. Therefore, there are no disproportionate economic impacts between large and small entities.
This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules.
The annual setting of the specifications focuses on the allocation of herring to various groups and for various purposes. Impacts were assessed by the Council and NMFS by comparing the proposed measures to the herring landings made in 2003. Alternatives that were considered to lessen the impacts on small entities are summarized below.
The Council analyzed four alternatives for OY and the distribution of TACs. One alternative would have retained the specifications implemented during the 2003 fishing year, which would have maintained the OY at 180,000 mt. This OY is still roughly 80 percent greater than the average historical landings for this fishery, and therefore that level of OY would not pose a constraint on the fishery. This alternative was rejected because it would have set OY at a level that is too high in light of the historic performance of the fishery. An allocation of this level could have resulted in an allocation of TALFF, resulting in negative impacts on the U.S. industry.
The three other alternatives considered by the Council would have set the OY at 150,000 mt. Although the OY of 150,000 mt is lower than that proposed by the Council, it is still
The alternatives that would set the OY at 150,000 mt would establish varying levels for the area TACs. One alternative would have established the following TACs: Area 1A, 60,000 mt; Area 1B, 10,000 mt; Area 2, 20,000 mt; and Area 3, 60,000 mt. The only area TAC that would be lower than the 2003 TAC under this option is the Area 2 TAC. The most recent year in which the landings from this area were greater than 20,000 mt (the proposed TAC) was 2000 (27,198 mt). The average landings from 2001 to 2003 were 14,300 mt, with 2003 landings at 16,079 mt. Under current market conditions, the new TAC may become constraining if the fishery in 2005 (and possibly 2006) is similar to that in 2000. If this is the case, then the Area 2 TAC fishery season could end before the end of the year, creating a potential economic constraint on the fishery, especially if vessels were forced to travel farther (increased steaming time) to harvest herring in Area 3. Because of this potential for economic costs, this alternative was rejected.
Another alternative considered would have established the following TACs: Area 1A, 45,000 mt; Area 1B, 10,000 mt; Area 2, 35,000 mt; and Area 3, 60,000 mt. With a 15,000-mt decrease in the combined Area 1 TACs, the economic impact of this alternative could be relatively large on vessels in the fishery that depend on herring in Area 1A, especially if those vessels are not able to move to other areas to obtain fish. Even if vessels could fish in other areas, their operating costs would be increased because of increased steaming time. Because of this potential for economic costs, this alternative was rejected. An Area 2 TAC of 35,000 mt proposed under this alternative would not be constraining given recent landings history.
The final alternative considered would have established the following TACs: Area 1A, 55,000 mt; Area 1B, 5,000 mt; Area 2, 30,000 mt; and Area 3, 60,000 mt. With a 10,000-mt decrease in the combined Area 1 TACs, the impact of this alternative would be very similar to the impact of the prior alternative, although not as severe. Because of this potential for economic costs, this alternative was rejected. An Area 2 TAC of 30,000 mt proposed under this alternative would not be constraining given recent landings history.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule, or group of related rules, for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of permits issued for the herring fishery. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out above, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(c) The Atlantic Herring Oversight Committee shall review the recommendations of the PDT and shall consult with the Commission's Herring Section. Based on these recommendations and any public comment received, the Herring Oversight Committee shall recommend to the Council appropriate specifications. The Council shall review these recommendations and, after considering public comment, shall recommend appropriate specifications to NMFS. NMFS shall review the recommendations, consider any comments received from the Commission, and shall publish notification in the
(d) NMFS shall make a final determination concerning the specifications for Atlantic herring. Notification of the final specifications and responses to public comments shall be published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to amend the electronic reporting and recordkeeping regulations for federally permitted seafood dealers participating in the summer flounder, scup, black sea bass, Atlantic sea scallop, Northeast (NE) multispecies, monkfish, Atlantic mackerel, squid, butterfish, Atlantic surfclam, ocean quahog, Atlantic herring, Atlantic deep-sea red crab, tilefish, Atlantic bluefish, skate, and/or spiny dogfish fisheries in the NE Region. This action reduces the submission schedule for dealer reports from daily to weekly, eliminates duplicate reporting of certain species, and clarifies existing reporting requirements. This action will also
This final rule is effective May 1, 2005.
Copies of the Regulatory Amendment, its Regulatory Impact Review (RIR), the Final Regulatory Flexibility Analysis (FRFA), and other supporting materials are available from Patricia A. Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn Drive, Gloucester MA 01930. The regulatory amendment/RIR/FRFA are also accessible via the Internet at
Written comments regarding the burden hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to Patricia A. Kurkul at the above address and by e-mail to
Kelley McGrath, Fishery Information Specialist, (978) 281-9307, fax (978) 281-9161 or Erik Braun, Fishery Reporting Specialist, (631) 324-3569, fax (631) 324-3314.
This final rule implements measures contained in the Regulatory Amendment to Modify Seafood Dealers Reporting Requirements (Regulatory Amendment) for federally permitted seafood dealers. This action will reduce the reporting frequency for electronic purchase reports from daily to weekly; require only species managed by the NE Region to be reported when purchasing fish from a vessel landing outside the NE Region; and exempt certain inshore species from Federal reporting requirements. Other measures include: eliminating duplicate reporting to NMFS of Atlantic bluefin tuna purchases by federally permitted dealers; removing the option for dealers to submit reports via a phone-line using File Transfer Protocol (FTP); and clarifying several existing dealer reporting requirements. In addition to the dealer reporting changes, this action modifies the requirements for vessel operator permits to allow operator permits issued by the Southeast Region under 50 CFR part 622 to satisfy NE operator permit requirements at 50 CFR 648.5. Details concerning the justification for and development of the regulatory amendment and the implementing regulations were provided in the preamble to the proposed rule (69 FR 10585, March 4, 2005) and are not repeated here. A copy of the proposed rule was mailed to all federally permitted dealers affected by this action, as well as to the state directors for all states within the NE Region.
Regulations implementing the fishery management plans (FMPs) for the summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, Atlantic surfclam, ocean quahog, Atlantic herring, Atlantic deep-sea red crab, tilefish, Atlantic bluefish, skate, and spiny dogfish fisheries are found at 50 CFR part 648. These FMPs were prepared under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). All dealers and vessels issued a Federal permit in one or more of the aforementioned fisheries must comply with the reporting requirements outlined at § 648.7. Lobster dealers issued a Federal lobster permit, but not issued any of the permits with mandatory reporting requirements under this part, are not required to comply with these reporting regulations, although other reporting requirements may apply. NMFS is modifying several components of these reporting regulations to reduce the reporting and administrative burden on seafood dealers and vessel operators, improve data quality, simplify compliance and enforceability of the reporting regulations, and eliminate confusion regarding existing reporting requirements.
This rule requires all seafood dealers permitted under § 648.6 to submit electronic, trip-level reports of all fish purchases and receipts to NMFS on a weekly basis. Consistent with the existing regulations, weekly reports will be due within 3 days of the end of the reporting week, by midnight of the following Tuesday. If no purchases or receipts are made during the entire reporting week, an electronic report so stating is required. Dealers are allowed to submit negative reports for up to 3 months in advance, if they know that no fish will be purchased during that time. Edits to an existing report will be allowed for up to 3 days following the due date of the original report.
This rule requires dealers making purchases from a vessel landing outside of the NE Region (Maine to North Carolina) to report only their purchases of species managed by the NE Region. Limiting the species that must be reported by dealers making out-of-region purchases will reduce the burden on those dealers, and still allow for effective monitoring of species for which the NE Region is responsible. It will also lessen duplicate reporting to Federal and state agencies, and improve the quality of the data collected by reducing the potential for double counting of landings.
This action exempts several inshore species from dealer reporting requirements. Inshore exempted species include bay scallops; blood arc, razor and soft clams; blood and sand worms; blue, green, hermit, Japanese shore, and spider crabs; blue mussels; oysters; and, quahogs. NMFS will continue to collect landings information from federally permitted seafood dealers for all finfish species, federally managed shellfish, and American lobsters received or purchased by these dealers. In many cases, purchases of the exempt inshore species are being reported to a state management agency as well as to NMFS, resulting in duplicate data. In other cases the state agency supplies NMFS with summary data of these species, thus providing the needed information for analyses. Other states rely on NMFS to collect inshore species landings and provide that state with the data. However, states have responsibility for collection of information for most inshore shellfish fisheries and several states have information collection programs already in place, many of which have more detailed information requirements than the Federal reporting requirements. In addition, NMFS cannot verify the quality and completeness of state data, nor properly monitor and enforce the requirement. As states move toward electronic reporting programs, it is anticipated that one reporting system will meet the data needs of both state and Federal agencies, further reducing the reporting burden on dealers and simplifying compliance with both state and Federal regulations. Until such time, state agencies may require their dealers to report purchases of exempt inshore species through the Federal electronic reporting system, and NMFS will continue to make those data available to the responsible state agency.
This action eliminates the requirement for dealers to report purchases of Atlantic bluefin tuna. However, to purchase Atlantic bluefin tuna, dealers must comply with Highly Migratory Species (HMS) requirements under 50 CFR part 635, including the
To accommodate NOAA policy, outlined in the DOC's “Unclassified System Remote Access Security Policy and Minimum Implementation Standards” document, this rule eliminates phone-line FTP as an acceptable system of file transfer due to security concerns. Dealers may submit reports using a web-based data entry system, through a web-based file upload procedure, or via an approved state-implemented data collection program.
This rule clarifies that dealers can report purchases in a variety of units of measure. The revised language will accommodate purchases of species that are landed in units of measure other than pounds or bushels. For instance, scallops may be reported in gallons, and ocean quahogs may be reported in bags. The online data entry system that many dealers use to submit data to NMFS contains these additional units of measure as well.
This rule clarifies that only surfclam and ocean quahog trips harvested under an Individual Transferrable Quota (ITQ) require cage tag numbers to be reported. Purchases of surfclams and ocean quahogs from non-ITQ trips do not require tags, nor do other species purchased by surfclam and ocean quahog dealers.
This rule requires dealers to submit price and disposition information within 16 days after the end of the reporting week. Prior to the implementation of electronic reporting in 2004, price information was due within 16 days of the end of the reporting week, which gave dealers the time they needed to collect the information and still provided economic data for analyses within a reasonable time frame. As specified in the existing regulations, effective May 1, 2005, trip identifier information will be due within the same time frame as the initial report.
To minimize the potential for duplicate and triplicate reporting of fish transferred at sea, this rule removes the requirement for at-sea receivers to report their at-sea receipts of Atlantic herring, Atlantic mackerel, squid, butterfish, scup, or black sea bass. At-sea purchases of these species must still be reported. This rule also removes summer flounder from the above list of species because summer flounder regulations prohibit that species from being transferred at sea.
This rule clarifies that dealers are not required to purchase or obtain their own personal computer to comply with the reporting requirements. Dealers may use any computer that meets the minimum system requirements to submit data. NMFS has established kiosks in several field offices specifically for dealers to use to meet their reporting requirements.
This rule clarifies that both dealers and processors must complete and submit the APPR each year. The APPR is a census used to collect employment and economic data for the processing segment of the seafood industry. Certain fisheries, such as surfclam, ocean quahog, and Atlantic herring require processors to be issued a processor permit under this part. Most entities issued a processor permit are also issued a dealer permit, however, there may be some processors issued only a processor permit under this part.
To provide a reciprocal agreement with the Southeast Region, this rule allows vessel operator permits issued by the Southeast Region under certain parts to satisfy NE Region vessel operator permitting requirements.
The deadline for receiving comments on the proposed rule (69 FR 10585, March 4, 2005) was March 21, 2005. Prior to the end of the comment period, NMFS received nine comments on the proposed rule. Six comments were from individuals representing or affiliated with seafood dealers. Two comments were from state fishery management agencies (North Carolina and Delaware). One comment was submitted by a member of the general public who appears to have no particular affiliation. Geographically, four comments were submitted by individuals in Massachusetts, and one comment each was submitted by individuals in Maine, Rhode Island, New Jersey, Delaware, and North Carolina. Three commenters expressed overall support for the proposed rule, particularly with regard to reducing the reporting frequency from daily to weekly. Two commenters were in favor of the proposed rule, but offered specific comments regarding the exempted inshore species. The remaining commenters provided specific comments on one or more of the following issues:
There are no changes from the proposed rule.
The Assistant Administrator (AA) for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C 553(d)(3) to make this rule effective immediately, thereby waiving the 30-day delayed effective date required by 5 U.S.C. 553. The principal purpose of this action is to reduce the reporting and administrative burden on seafood dealers. This rule will reduce the reporting burden on federally permitted dealers by: reducing the reporting frequency for electronic purchase reports from daily to weekly; requiring only species managed by the Northeast Region to be reported when purchasing fish from a vessel landing outside the Northeast Region; minimizing reporting of certain inshore species not managed by NMFS; eliminating confusion over some existing regulatory requirements; and, eliminating duplicate reporting of Atlantic bluefin tuna purchases by federally permitted dealers. This action will also reduce the administrative burden on vessel operators by allowing operator permits issued by the Southeast Region under 50 CFR part 622 to satisfy Northeast Regional operator permit requirements.
The AA waives the 30-day delay in effectiveness of this rule in order to implement this rule by May 1, 2005, the start of the fishing year. The original electronic dealer reporting rule was effective on May 1, 2004. It represented such a deviation from the historical paper reporting system, that NMFS allowed industry members several months to come into compliance. It also delayed the daily reporting system for small dealers until May 1, 2005. During this transition period to compliance, NMFS encountered a number of unanticipated technical problems in the development and implementation of the computer program for the reporting system. In addition, once NMFS began receiving daily reports from large dealers, it became apparent that the new system was causing much confusion and unforseen problems among dealers due to the transition from using regional species codes to using national species codes. Specifically, the new system was not able to provide the flexibility that dealers, particularly those purchasing illex and loligo squid, needed to accurately report the amounts of species landed. In order to allow effective monitoring of quota managed fisheries, NMFS concluded that a weekly reporting requirement for all dealers would satisfy quota monitoring needs for most species, for most of the year, and that the current level of staffing could manage efficiently the number of data transmissions generated by a weekly reporting requirement.
If the delayed effective period is not waived, a number of small dealers will be forced to hire at least an additional employee to meet the daily electronic reporting requirement. The average cost to hire a temporary employee for six weeks, at a wage rate of $18.88 per hour, is $4,531 per dealer. Assuming half of the 267 small dealers opt to do that, the total cost to industry, including a recruitment fee of $300 each, would be approximately $683,000. Larger dealers may have to modify their office
Further, May 1st is the start of the fishing year for most species, therefore, implementation of these requirements by that date ensures that consistent reporting requirements are in effect throughout the entire fishing year, resulting in better fisheries data. Some dealers may temporarily drop their dealer permit to avoid daily reporting, resulting in the loss of income during what is typically a very busy period for dealers. Based on 2003 and 2004 ex-vessel revenues reported by small dealers, the loss of revenue resulting from a dealer dropping their permit(s) for six weeks to avoid the daily reporting requirement would average approximately $16,500 per dealer. Assuming that ten percent, or 26, of the small dealers opt to temporarily drop their permits, the total cost to those dealers would be approximately $230,000. These estimates do not include the potential impacts to the vessels that would no longer be allowed to sell their catches to those dealers, nor the long term impacts to a dealer if a vessel is forced to go elsewhere temporarily to sell their product and then does not return to the original dealer once their dealer permit(s) is reissued. The implementation of the daily electronic reporting requirement for such a short period of time (i.e., during the delayed effectiveness period) will cause confusion and a lack of confidence in the stability of the administrative process among many dealers. In addition, the lack of a waiver will cause those fishermen in possession of an operator permit issued by the Southeast Region to have to apply for a NE Regional operator's permit if they intend to fish for species regulated under 50 CFR part 648 before the end of the delayed effectiveness period.
This final rule has been determined to be not significant for the purposes of Executive Order 12866.
Included in this final rule is the Final Regulatory Flexibility Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the IRFA and a summary of the analyses completed in support of this action. There were no public comments on the economic impacts of the proposed rule. A copy of the FRFA is available from the Regional Administrator (see
A description of why this action is being considered, and the objective of and legal basis for this action, is contained in the preamble to the proposed rule and is not repeated here.
NMFS received 9 comments on the proposed rule (69 FR 10585, March 4, 2005) prior to the close of the comment period. Of these, there were no comments on the economic impacts of the rule. Therefore, no changes were made to this action as a result of the comments received. For a complete description of the comments received on the proposed rule, refer to the above section titled “Comments and Responses.”
This action affects seafood dealers and processors issued a Federal permit for one or more of several species. Dealers are firms who purchase or receive fish from vessels for a commercial purpose, other than solely for transport on land, and then sell that product directly to restaurants, other dealers or processors, or consumers without substantially altering the product. Processors are firms that purchase raw product and produce another product form, which is then sold or transferred to markets, restaurant, or consumers. The majority of dealers and processors affected by this action are issued permits for several species.
For the purposes of RFA, all dealers affected by this final rule are considered small businesses; therefore, there are no disproportionate impacts between large and small entities, as defined in the RFA. Based on 2003 data, approximately 576 dealers and processors hold one or more of the permits requiring compliance with this rule.
The projected reporting, recordkeeping, and other compliance requirements to which the final rule applies were identified in the preamble to the proposed rule (69 FR 10585, March 4, 2005) and in the IRFA, and remain the same. A description of the projected reporting, recordkeeping, and other compliance requirements is provided in the IRFA and the IRFA summary contained in the classification section of the proposed rule and is not repeated here. No professional skills are necessary for preparation of the reports or records specified above.
This rule does not duplicate, overlap, or conflict with any relevant Federal rules.
This final rule modifies the reporting requirements for seafood dealers participating in the summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, Atlantic surfclam, ocean quahog, Atlantic herring, Atlantic deep-sea red crab, tilefish, Atlantic bluefish, skate, and/or spiny dogfish fisheries, and also makes a minor change to vessel operator permit requirements. These changes are designed to reduce the administrative burden on dealers and vessel operators, and to clarify existing regulations, thus it is anticipated that any economic impacts resulting from this action will be beneficial. The potential economic impacts of these measures are described in detail in the IRFA and the IRFA summary contained in the Classification section of the proposed rule (69 FR 10585, March 4, 2005).
In addition to the action being taken in this final rule and a No Action alternative, NMFS considered additional options for each of the three major facets of this rule: Reporting frequency, out-of-region purchases, and inshore species reporting. For reporting frequency, NMFS considered two additional options. The first option redefined the dealer categories based on purchases of quota managed species only, rather than total purchases as is currently the case. Under this option Small Dealers would continue to report weekly and Large Dealers would continue to report daily. The second option considered for reporting frequency required weekly reporting for all dealers, with an option for NMFS to implement daily reporting if landings of a species reached levels requiring daily reporting for effective quota monitoring. Both of these options would reduce the reporting frequency, and thus the cost of compliance, for most dealers. While the
For out-of-region dealer reporting, NMFS considered two other options for determining what constitutes an out-of-region dealer or trip. In the first option, the primary business address of the dealer determined whether the dealer was out-of-region or not. In the second option, the determination was based on the point of purchase for the trip. In addition, NMFS considered two other options for relieving dealers of inshore species reporting requirements. One option considered employing dealer-by-dealer reporting exemptions for any non-federally-managed species, if requested by the state agency for that dealer. The second option allowed for a state agency to request that NMFS relieve all dealers in their state from reporting species to NMFS that are also reported to the state agency, regardless of the management agency. For both out-of-region purchases and inshore species reporting, the differences in cost savings among the various options and the selected action are negligible because it is likely that the number of dealers affected under each option is very similar. However, both the options and the selected actions would result in a time and cost savings compared to the current regulations, due to the reduction in reporting requirements. Given the similar decrease in compliance costs to industry, NMFS selected the options that are the most practical for the agency to manage and enforce.
For all other changes included in this final rule, only the action being taken and the No Action alternative were considered. Of these changes, only the elimination of Atlantic bluefin tuna reporting under 50 CFR part 648, removing the option for dealer to submit reports via FTP, and alleviating at-sea receivers from reporting requirements may have an economic effect on dealers. The elimination of Atlantic bluefin tuna reporting requirements for dealers issued a permit under 50 CFR part 648 will result in a slight time saving for dealers issued an Atlantic bluefin tuna permit since they will no longer have to report their Atlantic bluefin tuna purchases under two sets of regulations. Removing the option to submit reports via a phone line FTP will require all dealers to have Internet access that could, theoretically, result in a small cost increase to certain dealers. However, since no dealers are currently using the FTP option, no dealers will actually be affected by this change. Eliminating the requirement for at-sea receivers to submit purchase reports may save a very small number of entities from reporting under 50 CFR part 648.
The remaining changes are primarily clarifications or administrative changes that will not result in any economic impacts on the affected entities. These changes include allowing various units of measure to be reported; requiring the trip identifier and disposition to be reported within 16 days of the end of the reporting week; clarifying which trips require cage tag numbers to be reported; clarifying that dealers do not have to purchase their own computer to comply with these reporting requirements; and allowing operator permits issued by the Southeast Region to satisfy operator permit requirements under 50 CFR part 648. Detailed descriptions of each of the changes are provided in the associated RIR/IRFA document (see
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare an FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of related rules. As part of the rulemaking process, a small entity compliance guide will be sent to all holders of NE Federal dealer permits. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see
This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under OMB Control Number 0648-0229. Public reporting burden for electronic dealer purchase reports is estimated to average 4 minutes per response, including the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding these burden estimates or any other aspects of this data collection, including suggestion for reducing the burden, to NMFS (see
Notwithstanding any other provision of law, no person is required to respond to, and no person shall 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.
Fisheries, Fishing, Reporting and recordkeeping requirements.
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
Bay scallop -
Blood arc clam -
Blood worm -
Blue crab -
Blue mussel -
Green crab -
Hermit crab -
Japanese shore crab -
Oyster -
Quahog -
Razor clam -
Sand worm -
Soft clam -
Spider crab -
(a)
(a) * * *
(1) * * *
(i)
(ii)
(A) Inshore Exempted Species, as defined in § 648.2, are not required to be reported under this part;
(B) When purchasing or receiving fish from a vessel landing in a port located outside of the Northeast Region (Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia and North Carolina), only purchases or receipts of species managed by the Northeast Region under this part, and American lobster, managed under part 697 of this chapter, must be reported. Other reporting requirements may apply to those species not managed by the Northeast Region, which are not affected by this provision; and
(C) Dealers issued a permit for Atlantic bluefin tuna under part 635 of this chapter are not required to report their purchases or receipts of Atlantic bluefin tuna under this part. Other reporting requirements, as specified in § 635.5 of this chapter, apply to the receipt of Atlantic bluefin tuna.
(iii) * * *
(2)
(3)
(i) All dealers and processors issued a permit under this part must complete all sections of the Annual Processed Products Report for all species that were processed during the previous year. Reports must be submitted to the address supplied by the Regional Administrator.
(f)
(ii) [Reserved]
(iii) * * *
(iv) Through April 30, 2005, to accommodate the potential lag in availability of some required data, the trip identifier, price and disposition information required under paragraph (a)(1) may be submitted after the detailed weekly report, but must be received within 16 days of the end of the reporting week or the end of the calendar month, whichever is later. Dealers will be able to access and update previously submitted trip identifier, price, and disposition data.
(v) Effective May 1, 2005, the trip identifier required under paragraph (a)(1) of this section must be submitted with the detailed report, as required under paragraphs (f)(1)(i) of this section. Price and disposition information may be submitted after the initial detailed report, but must be received within 16 days of the end of the reporting week.
(vi) * * *
(2) * * *
(3)
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Proposed rule.
This rule proposes to amend the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) regulations to enable petitioners to file O and P nonimmigrant petitions up to one year prior to the petitioners' need for the alien's services. By extending the filing time requirement for O and P petitions, USCIS will be able to adjudicate petitions in a timely fashion and ensure that, if approvable, such petitions will be approved prior to the date of the need for the alien's services, which is often dictated by a scheduled event, competition or performance.
Written comments must be submitted on or before June 27, 2005.
You may submit comments, identified by CIS No. 2295-03 or DHS 2004-0009, by one of the following methods:
• EPA Federal Partner EDOCKET Web Site:
• Federal eRulemaking Portal:
• E-mail:
• Mail: The Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To ensure proper handling, please reference CIS No. 2295-03 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. Contact telephone number (202) 272-8377.
• Docket: For access to the docket to read background documents or comments received, go to
Kevin J. Cummings, Adjudications Officer, Business and Trade Services Branch/Program and Regulation Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, telephone (202) 305-3175.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. USCIS also invites comments that relate to the economic, environmental, or federalism affects that might result from this proposed rule. Comments that will provide the most assistance to USCIS in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See
The O and P nonimmigrant classifications include individual aliens with extraordinary ability in the arts, sciences, education, business or athletics (including those in the motion picture and television industry), as well as internationally recognized athletic team members, entertainment groups, artists and other entertainers. Petitions for O and P nonimmigrant classifications are filed on Form I-129, Petition for Nonimmigrant Worker.
8 CFR 214.2(o)(2)(i) currently states that an O nonimmigrant petition may not be filed more than 6 months before the actual need for the alien's services. A P nonimmigrant petition may not be filed more than 6 months before the actual need for the alien's services under 8 CFR 214.2(p)(2)(i).
USCIS is amending its regulations to allow an O or P petitioner to file a Form I-129 up to one year, but not earlier than 6 months, before the date of the petitioner's need for the alien's services. The rule also provides that USCIS may grant exceptions to the filing timeframes in emergency situations at the discretion of the USCIS Service Center Director, and in special filing situations as determined by USCIS Headquarters.
Current filing times combined with processing times often result in an O or P petition being adjudicated at the same time or later than the date of the petitioner's stated need for the alien. This situation creates a hardship for petitioners who are seeking to employ the alien based on a scheduled performance, competition, or event and who may have booked a venue and sold advance tickets. If the petition is not
USCIS has determined that a large percentage of O and P petitioners seeking alien performers or athletes often schedule and plan for events more than a year in advance. Thus, filing the Form I-129 within 6 months of the petitioner's stated need should not be a hardship on those U.S. employers seeking O and P nonimmigrants. In addition, filing within a 6 month timeframe will ensure that USCIS is able to timely adjudicate and, if eligible, approve Form I-129 petitions prior to the scheduled event or performance. USCIS recognizes that there may be certain instances, and even emergency circumstances, where the U.S. employer is unable to file the Form I-129 six months in advance of his or her actual need or of the scheduled event or performance. In those instances, USCIS will review the specifics of the U.S. employer's case and may, in its discretion, permit the U.S. employer to file the O or P petition within a shorter timeframe. USCIS intends to use its discretion liberally in this regard. USCIS also reminds U.S. employers seeking O and P nonimmigrants that premium processing is available for these categories. See 8 CFR 103.2(f).
No. At this time, USCIS is satisfied that the petitions for the other Form I-129 classifications are processed by the date of the petitioner's stated need. Moreover, a large percentage of cases filed under these other categories are for ongoing, long-term employment rather than one-time performances or specific entertainment events or series of events that are usually planned, booked, and funded well in advance. In addition, the O and P nonimmigrant classifications do not require a current test of the U.S. labor market or a certification from the Department of Labor indicating that the hiring of a foreign laborer will not result adversely affect the domestic U.S. workforce. Further, USCIS is concerned that expanding the filing times for all Form I-129 petitioners would lead to an increase in cases where the need for the alien has not fully materialized and may lead to an increase in adjudications of petitions regarding speculative employment.
USCIS, however, specifically invites comments on whether it should extend the filing timeframes for all Form I-129 petitioners. USCIS also requests comments on whether such an extension may increase the potential for fraud or abuse of the O and P classifications (as well as other nonimmigrant categories covered by the Form I-129 petition) and suggestions for addressing such fraud or abuse should it occur.
DHS has reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. As stated under the certification required by Executive Order 12866, section 1(b)(6), DHS has determined that there are no new costs to either the government or the public associated with this rule. This rule does not alter any of the substantive petitioning requirements related to the Form I-129 or the evidentiary standards for establishing eligibility for the O and P nonimmigrant classification. This rule will ensure that certain O and P nonimmigrant petitions are adjudicated well in advance of the date of the employers' stated need and thus prevent employers from having to cancel an event, competition or performance either because the petition was denied at the last minute, or because the petition was not adjudicated in advance of the need. Employers will be less likely to lose booking costs or have to issue refunds if they receive a decision on the petition well in advance of the event, competition, or performance.
This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
This rule is considered by the Department of Homeland Security to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget (OMB) for review.
DHS has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b)(6) and has determined that there are no new costs to either the government or the public associated with this rule. The rule does not alter any of the substantive petitioning requirements related to the Form I-129 or the evidentiary standards for establishing eligibility for the O or P nonimmigrant classification. Further, DHS has determined that the benefits of this rule justify any
This rule will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.
Administrative practice and procedures, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Accordingly, part 214 of chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 214 continues to read as follows:
8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively, 8 CFR part 2.
2. Section 214.2 is amended by:
a. Revising the second sentence in paragraph (o)(2)(i) and adding a new sentence immediately thereafter; and by
b. Revising the tenth sentence in paragraph (p)(2)(i) and adding a new sentence immediately after.
The revisions read as follows:
(o) * * *
(2) * * *
(i)
(p) * * *
(2) * * *
(i)
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the Virus-Serum-Toxin Act regulations to require licensees and permittees to confirm the proposed expiration dating period of products by potency testing serials on multiple occasions throughout the proposed dating period, rather than only at release and at the approximate expiration date as is currently required. We would require that those stability test data be submitted to the Animal and Plant Health Inspection Service for review and filing, and that the approval date be specified in a filed Outline of Production. In addition, after a product is licensed and its dating period confirmed, the licensee or permittee would have to submit a plan to monitor the stability of the product and the suitability of its dating period; that plan would have to include regular testing of serials for potency during and at the end of dating. The proposed changes would help clarify the distinction between specifying an expiration date for an individual serial of a product and establishing the appropriate expiration dating period for the product. The effect of these proposed changes would be to establish a single uniform standard for determining expiration dates for veterinary biological products.
We will consider all comments that we receive on or before June 27, 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. 04-064-1, 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. 04-064-1.
• Federal eRulemaking Portal: Go to
Dr. Albert P. Morgan, Chief of Operational Support, Center for Veterinary Biologics, Licensing and Policy
The Virus-Serum-Toxin Act regulations in 9 CFR part 114, “Production Requirements for Biological Products” (referred to below as the regulations), include requirements applicable to designating the expiration date of a serial or subserial of veterinary biologics and determining the expiration dating period (stability) for veterinary biologics. Currently, § 114.12 of the regulations requires each serial or subserial of veterinary biological product prepared in a licensed establishment to be given an expiration date determined in accordance with the requirements prescribed in § 114.13 of the regulations. The regulations in § 114.13 require the expiration date described under § 114.12 to be computed from the date of the initiation of the potency test.
The expiration date of a product designates the end of the period during which a biological product, when properly stored and handled, can be expected, with reasonable certainty, to be efficacious. Thus, the most precise determination of the expiration date occurs when the product is tested at the end of its predicted shelf life. However, the typical product may be released for distribution and sale before its dating period is confirmed, which necessitates a mechanism for predicting the product's shelf life. Prior to licensure, the stability of each fraction of a product must be determined by methods acceptable to Animal and Plant Health Inspection Service (APHIS). Typically, such methods involve subjecting the product to extreme temperatures and measuring its relative strength by conducting a potency test. Products that pass the potency test are licensed with the provision that such expiration dates must be confirmed by real-time testing as follows: For products consisting of viable organisms each (prelicensing) serial shall be tested for potency at release and at the approximate expiration date until a statistically valid stability record has been established; for nonviable biological products, each (prelicensing) serial presented in support of licensure shall be tested for potency at release and at or after the dating requested.
We are proposing to amend the title of § 114.12 to read: “Expiration date required for a serial.” In addition, we propose to amend this section by adding the wording “computed from the date of the initiation of the potency test” and remove it from § 114.13 where it is currently found. This change is intended to clarify the fact that the expiration date of a serial, and not the dating period of a product, is computed from the date of the initiation of the potency test.
We are proposing to amend the title of § 114.13 to read: “ Determination of the expiration dating period of a product.” This change will show that it deals with a product's dating period rather than the expiration date of a serial. The proposed revision of this section would define a single uniform standard for determining the dating period for all veterinary biologics; require the expiration dating periods of a product to be confirmed by testing serials or subserials on multiple occasions throughout their dating period in place of the current requirement which only requires testing at the beginning and end of the dating period in order to confirm stability; require a report of the expiration dating period testing to be submitted to APHIS for review and filing and the date of approval to be specified in section VI of the filed Outline of Production; and after the dating period has been approved, require that the stability of the product and the suitability of the dating period be monitored by regularly testing serials during and after their dating period.
APHIS is proposing these amendments because it has been shown that the potency of most veterinary biologics degrades in a nonlinear fashion, which could result in their potency reaching its lowest point during the middle of the dating period rather than at the end. Testing on only two occasions would be reasonable only if potency loss has a strictly linear pattern, and this is usually not the case. Thus, APHIS is proposing to evaluate a product's stability as a function of time by requiring serials to be tested on multiple occasions when confirming the dating period, and thereafter by monitoring stability on a regular basis.
The proposed amendment would update and standardize testing to establish/confirm the stability of veterinary biologics and improve the reliability of expiration dating periods currently specified on the labeling of veterinary biologics, thereby providing greater assurance that the product, when properly stored and handled, will be efficacious. We are therefore proposing to amend §§ 114.12 and 114.13 as set forth below.
This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
This proposed rule would amend the Virus-Serum-Toxin Act regulations in §§ 114.12 and 114.13 concerning expiration dates and the determination of the stability of veterinary biologics to: Change the title of the sections; require veterinary biologics licensees and permittees to evaluate the stability of veterinary biologics as a function of time by testing serials for potency throughout and after their proposed dating period beginning at the date of final formulation; require that the expiration dating period be determined by testing serials for potency on multiple occasions throughout and after the proposed dating period; require that a report of the results of the testing to confirm expiration dating be submitted to APHIS for review and filing and that the date of approval be specified in the filed Outline of Production; and require monitoring of the stability of the product and the suitability of the dating period. The overall effect of these proposed amendments would be to establish a single uniform standard for confirming the expiration dating period of veterinary biologics.
This proposed rule would affect all licensed manufacturers of veterinary biologics. Currently, there are approximately 152 veterinary biologics manufacturers, including permittees. According to the standards of the Small Business Administration, most veterinary biologics establishments are small entities. We believe that this proposed rule would not have a significant effect on small entities because all veterinary biologics manufacturers are currently required to confirm the expiration dating of the products that they produce and to submit a report to APHIS for review and filing. In addition, the proposed requirements to test serials on multiple occasions when confirming expiration dating and to require post-licensing stability monitoring are not expected to have a significant effect, as most veterinary biologics manufacturers routinely test and monitor the stability of products throughout their dating period.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not
This program/activity is listed in the category 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 proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. The Virus-Serum-Toxin Act does not provide administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.
This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal biologics, Reporting and recordkeeping requirements.
Accordingly, we propose to amend 9 CFR part 114 as follows:
1. The authority citation for part 114 would continue to read as follows:
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
2. Section 114.12 would be revised to read as follows:
Unless otherwise provided for in a Standard Requirement or filed Outline of Production, each serial or subserial of biological product prepared in a licensed establishment must be given an expiration date computed from the date of the initiation of the first potency test. A licensed biological product shall be considered worthless under the Virus-Serum-Toxin Act subsequent to the expiration date appearing on the label.
3. Section 114.13 would be revised to read as follows:
(a) An expiration dating period shall be assigned to each product. When tested at any time during the dating period, the potency of the product must not be less than the minimum specified in the filed Outline of Production.
(b) Prior to licensure, a proposed expiration dating period for the product should be determined by assessing the stability of each of its fractions by methods acceptable to Animal and Plant Health Inspection Service. The proposed dating period must be confirmed by testing the serials for potency on multiple occasions throughout the proposed dating period beginning at the date of final formulation specified in the filed Outline of Production. A report of the study should be submitted to Animal and Plant Health Inspection Service for review and filing and the date of approval should be specified in section VI of the filed Outline of Production.
(c) After the product is licensed and its dating period confirmed, the licensee or permittee must submit a plan to monitor the stability of the product and the suitability of its dating period that includes regularly testing serials for potency during and at the end of dating.
(d) Subsequent changes in the dating period for a product may be granted, based on the submission of a study to support a revision of the Outline of Production.
Fish and Wildlife Service, Interior.
Proposed rule; extension of public comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the extension of the public comment period for the proposal to designate critical habitat for the Arkansas River Basin population of the Arkansas River Shiner (
Comments must be submitted directly to the Service (
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field Supervisor, Oklahoma Ecological Services Office, U.S. Fish and Wildlife Service, 222 South Houston, Tulsa, Oklahoma 74127-8909.
2. You may hand-deliver written comments and information to our Oklahoma Office, at the above address, or fax your comments to 918-581-7467.
3. You may send your comments by electronic mail (e-mail) to
All comments and materials received, as well as supporting documentation used in preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address.
Jerry Brabander, Field Supervisor, Oklahoma Office (telephone 918-581-7458; facsimile 918-581-7467).
On October 6, 2004 (69 FR 59859), we proposed to designate as critical habitat a total of approximately 2,002 kilometers (1,244 miles) of linear distance of rivers, including 91.4 meters (300 feet) of adjacent riparian areas measured laterally from each bank. This distance includes areas that we are proposing to exclude that are discussed below. The areas that we have determined to be essential to the conservation of the Arkansas River Shiner include portions of the Canadian River (often referred to as the South Canadian River) in New Mexico, Texas, and Oklahoma, the Beaver/North Canadian River of Oklahoma, the Cimarron River in Kansas and Oklahoma, and the Arkansas River in Arkansas, Kansas, and Oklahoma.
In developing this proposal, we evaluated those lands determined to be essential to the conservation of the Arkansas River Shiner to ascertain if any specific areas would be appropriate for exclusion from the final critical habitat designation pursuant to section 4(b)(2) of the Act. On the basis of our preliminary evaluation, we believe that the benefits of excluding the Beaver/North Canadian River of Oklahoma and the Arkansas River in Arkansas, Kansas, and Oklahoma, from the final critical habitat for the Arkansas River Shiner outweigh the benefits of their inclusion. The public comment period for the proposed rule was originally scheduled to close on April 30, 2005.
On September 30, 2003, in a complaint brought by the New Mexico Cattle Growers Association and 16 other plaintiffs, the U.S. District Court of New Mexico instructed us to propose critical habitat by September 30, 2004, and publish a final rule by September 30, 2005. The proposed rule was signed on September 30, 2004, and published in the
Critical habitat is defined in section 3 of the Act as the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection; and specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We are currently developing a draft economic analysis and draft environmental assessment for the proposal to designate certain areas as critical habitat for the Arkansas River Shiner and will announce their availability at a later date. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
Pursuant to 50 CFR 424.16(c)(2), we may extend or reopen a comment period upon finding that there is good cause to do so. We are currently developing a draft economic analysis and draft environmental assessment for the proposal and will announce the availability of those documents and solicit data and comments from the public on these draft documents at a later date. We will also announce hearing dates concurrently with the availability of the draft documents. However, it is our intention to leave the public comment period open and uninterrupted until those documents are available for public consideration and comment. We believe that allowing the comment period to close before the full set of supporting draft analytical documents is available could result in hurried and incomplete comments on our proposed rule and could also unnecessarily frustrate respondents. We deem these considerations as sufficient cause to extend the comment period.
We are required by court order to complete the final designation of critical habitat for the Arkansas River Shiner by September 30, 2005. To meet this date, all comments on or proposed revisions to the proposed rule need to be submitted to us during the comment period, as extended by this document (
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for public inspection, by appointment, during normal business hours at the Tulsa Ecological Services Office (
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule; notice of availability of draft economic analysis and draft environmental assessment, and notice of public hearings.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis and draft environmental assessment for the proposal to designate critical habitat for southwestern willow flycatcher (
Comments must be submitted directly to the Service (
We will hold public informational sessions from 3:30 p.m. to 5 p.m., followed by a public hearing from 7 p.m. to 9 p.m., on the following dates:
1. May 2, 2005: Escondido, CA.
2. May 3, 2005: City of Chino, CA.
3. May 9, 2005: Las Vegas, NV.
4. May 10, 2005: Lake Isabella, CA.
5. May 16, 2005: Mesa, AZ.
6. May 17, 2005: Silver City, NM.
7. May 18, 2005: Albuquerque, NM.
8. May 19, 2005: Alamosa, CO.
The public informational sessions and hearings will be held at the following locations:
1. Escondido, CA: California Center for the Arts, 340 N. Escondido Blvd., Escondido, CA 92025.
2. City of Chino, CA: El Prado Golf Course, 6555 Pine Ave., Chino, CA 91710.
3. Las Vegas, NV: Cashman Center, 850 N. Las Vegas Blvd., Las Vegas, NV 89101.
4. Lake Isabella, CA: Lake Isabella Senior Center, Room 1, 6405 Lake Isabella Blvd., Lake Isabella, CA 93240.
5. Mesa, AZ: Mesa Community and Conference Center, 263 N. Center St., Mesa, AZ 85211.
6. Silver City, NM: Western New Mexico University, Global Resource Room, 1000 W. College, 12th and E St., Silver City, NM 88061.
7. Albuquerque, NM: Indian Pueblo Cultural Center, Special Events Center, 2401 12th St. NW., Albuquerque, NM 87104.
8. Alamosa, CO: Adams State University, Student Union Bldg., Rooms 308 & 309, First and Stadium Dr., Alamosa, CO 81102.
Persons needing reasonable accommodations in order to attend and participate in the public hearing should contact Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office at the phone number and address below as soon as possible. In order to allow sufficient time to process requests, please call no later than 1 week before the hearing. Information regarding this proposal is available in alternative formats upon requests.
If you wish to comment on the proposed rule, draft economic analysis, or draft environmental assessment, you may submit your comments and materials by any one of several methods:
1. You may submit written comments and information by mail or hand-delivery to the Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021.
2. Written comments may be sent by facsimile to (602) 242-2513.
3. You may send your comments by electronic mail (e-mail) to
You may obtain copies of the draft economic analysis and draft environmental assessment by mail or by visiting our Web site at
Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office (telephone 602-242-0210, facsimile 602-242-2513) or by electronic mail at
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule, the draft economic analysis, and the draft environmental assessment. On the basis of public comment, during the development of our final determination, we may find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or not appropriate for exclusion. We particularly seek comments concerning:
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species resulting from designation;
(2) Specific information on the distribution of the southwestern willow flycatcher, the amount and distribution of the species' habitat, and which habitat is essential to the conservation of the species, and why;
(3) Land-use designations and current or planned activities in the subject area and their possible impacts on the species or proposed critical habitat;
(4) Whether our approach to listing or critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments;
(5) Any foreseeable economic, environmental, or other impacts resulting from the proposed designation of critical habitat or coextensively from the proposed listing, and in particular, any impacts on small entities or families;
(6) Whether the economic analysis identifies all State and local costs. If not, what other costs should be included;
(7) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the listing of the species or the designation of critical habitat;
(8) Whether the economic analysis correctly assesses the effect on regional costs associated with land- and water-use controls that derive from the designation;
(9) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation; and
(10) Whether the economic analysis appropriately identifies all costs that could result from the designation or coextensively from the listing.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (
We proposed to designate for the southwestern willow flycatcher 376,095 acres (ac) (152,124 hectares (ha)) [including approximately 1,556 stream miles (2,508 stream kilometers)] of critical habitat, which includes various stream segments and their associated riparian areas, not exceeding the 100-year floodplain or flood prone area, on Federal, State, Tribal, and private lands in southern California, southern Nevada, southwestern Utah, south-central Colorado, Arizona, and New Mexico. The proposed rule was published in the
On September 30, 2003, in response to a complaint brought by the Center for Biological Diversity, the U.S. District Court of New Mexico ordered us to propose critical habitat on or by September 30, 2004, and complete a final designation by September 30, 2005. Additional background information is available in the October 12, 2004, proposal to designate critical habitat.
Critical habitat identifies specific areas that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We are announcing the availability of a draft economic analysis and draft environmental assessment for the proposal to designate certain areas as critical habitat for the southwestern willow flycatcher. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
Following the publication of the proposed rule on October 12, 2004, we discovered that the coordinates for river reaches in Riverside, Orange, and San Diego Counties, California, were not correctly projected, causing a shift in the proposed critical habitat polygons of approximately 262 feet (ft) (80 meters (m)) to the west. We have since corrected the data projections to accurately reflect what we are considering for designation or exclusion from proposed critical habitat, and we provide the corrected start- and end-point coordinates below. Corrected Geographic Information System layers will be available at
In our proposed rule we inaccurately mapped the extent of essential habitat on the West Fork of the Little Colorado River in Arizona. We are correcting that error by adding a Service Road 113 (longitude −109.507567, latitude 33.959677) to a new endpoint approximately 170 ft (51.8 m) east of the Mt. Baldy Wilderness boundary (longitude −109.516209, latitude 33.958302).
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Foreign Agricultural Service, USDA.
Notice to reestablish board of evaluators.
Notice is hereby given that the Secretary of Agriculture intends to reestablish the Edward R. Madigan United States Agricultural Export Excellence Award Board of Evaluators. The Secretary of Agriculture has determined that the Board is necessary and in the public interest.
Marketing Operations Staff, Foreign Agricultural Service, USDA, Room 4932, 1400 Independence Ave., SW., Washington, DC 20250-10442, telephone: (202) 720-4327, fax: (202) 720-9361, E-mail:
The purpose of the Edward R. Madigan United States Agricultural Export Excellence Award Board of Evaluators is to advise the Secretary of Agriculture on the selection of recipients for the Edward R. Madigan United States Agricultural Export Excellence Award.
Forest Service, USDA.
Notice of intent to prepare a Supplemental Environmental Impact Statement.
The USDA, Forest Service is releasing a Supplemental Environmental Impact Statement (SEIS) to further address the environmental effects that the Main Boulder Fuels Reduction Project would have on the northern goshawk. This is a hazardous fuels reduction project consisting of approximately 2500 acres of overstory and understory canopy thinning, prescribed burning, and aspen stimulation.
The Supplemental Draft Environmental Impact Statement is expected May of 2005 and the Supplemental Final Environmental Impact Statement and Record of Decision are expected August of 2005.
Written correspondence should be sent to Bill Avey, District Ranger, Big Timber Ranger District, P.O. Box 1130, Big Timber, MT 59011-1130. Copies of the Main Boulder Fuels Reduction SEIS will be available at the Big Timber Ranger District Office, 225 Big Timber Loop Road, Big Timber, MT and the Bozeman Ranger District Office, 3710 Fallon Street, Bozeman, MT. Electronic copies will also available on the Internet at
Bill Avey, District Ranger or Brent Foster, ID Team Leader, Big Timber Ranger District at (406) 932-5155 or Barbara Ping, Co-ID Team Leader, Bozeman Ranger District at (406) 522-2558 (
The purpose and need of the project is to provide for public and firefighter safety by minimizing the probability and effects of future fire starts in the wildland/urban interface of the Main Boulder River Corridor, to extend the potential time available for evacuation in the event of a wildfire by reducing the fire hazard along the Main Boulder Road, and to reduce fuel loadings by breaking up the vertical and horizontal fuel composition in the corridor, wherever possible.
Stand density reduction, utilizing ground based harvest equipment, would occur on approximately 1060 acres on slopes up to 35%. Approximately 1040 acres on slopes >35% would be treated with other specialized methods or hand-treatments. A minimum of 15 to 20% of each unit would be left untreated to provide diversity across the landscape. In addition to reducing surface fuel loading by commercial thinning and salvage, small diameter fuel reduction, understory and/or pile burning would occur. Conifers would be slashed and prescribed burning would occur on approximately 400 acres of meadow-type habitats. Aspen clones would have conifers removed within a 100 foot radius to encourage aspen regeneration. A maximum of 7.4 miles of temporary road may be constructed to access the areas proposed for mechanical fuels treatment. No permanent roads would be constructed.
Alternatives that were considered in detailed study include the No Action Alternative and the Proposed Action Alternative. Seven other alternatives were considered, but did not merit detailed analysis or further consideration in the process.
Rebecca Heath, Forest Supervisor, Gallatin National Forest, P.O. Box 130, 10 East Babcock, Bozeman, MT 59011.
The scope of actions in the decision are limited to stand density reduction and the reduction of downed fuel loadings on National Forest Land including the thinning of large diameter conifers, removal of insect or disease damaged/killed conifers, cutting of small diameter conifers, slashing of conifers encroaching into meadow or aspen stands, prescribed burning of meadow areas, underburning of some treated stands, piling and removal or burning of downed woody materials resulting from treatment actions.
Collaboration with the public has been an important part of the project. The proposal was developed with input from adjacent private landowners,the local watershed association, and numerous state, county, and local officals and groups. More than 20 meetings have been held providing information and updates pertaining to the project. Numerous field trips to the project area have been conducted involving various individuals, agencies and organizations. In December 2002, a formal scoping letter was sent to interested parties. The DEIS was released for public comment in July of 2004 followed by a 45 day review and comment period. In January of 2005 the FEIS and ROD were released and a 45 day appeal filing period began. Three appeals were received and subsequently the decision was reversed to update and clarify the analysis to better address the impacts to northern goshawk.
Key issues that were identified include the possible negative environmental effects to water quality, fisheries, scenery, wildlife, recreation, and air quality. Key issues also included the threat of fuel accumulation and the potential for increasing the risk of noxious weed spread.
The Draft Supplemental EIS is expected to be filed with the Environmental Protection Agency (EPA) and available for public review in May 2005. At that time EPA will publish a Notice of Availability (NOA) of the Draft Supplemental EIS in the
A Supplemental Draft Environmental Impact Statement will be prepared for comment. The comment period on the Supplemental Draft Environmental Impact Statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the Supplemental Draft Environmental Impact Statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the Draft Statement. Comments may also address the adequacy of the Supplemental Draft Environmental Impact Statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Forest Service, USDA.
Revised notice of intent to prepare an environmental impact statement.
The USDA, Forest Service, Los Padres National Forest, published a Notice of Intent to conduct an analysis and prepare an Environmental Impact Statement (EIS) for oil and gas leasing in the
Scoping was conducted as described in the September 15, 1995 Notice of Intent. Scoping comments submitted during scoping for the proposed action are part of the project record and were considered in the Draft EIS. The Draft EIS was distributed in December of 2001. Agency, organization, and public comment to the Draft EIS was accepted until April 19, 2002. These comments are being considered during the completion of the Final EIS. The final environmental impact statement is expected in June of 2005.
Al Hess, Oil and Gas Resource Specialist, Los Padres National Forest, 1190 E. Ojai Ave., Ojai, CA 93023, (805) 646-4348, ext. 311. E-mail:
There is a need for identification of Los Padres National Forest lands were oil and gas exploration, development, and production would be appropriate. There is a need to respond to the Bureau of Land Management on outstanding requests (applications) for leasing. There is a need for information concerning the potential environmental impacts of existing leases.
The Forest Supervisor proposes to make additional areas of Los Padres National Forest lands available for oil and gas exploration, development, and production by selecting among alternative leasing scenarios. These scenarios vary in the amount of area available for leasing as well as the conditions (stipulations) under which the lands would be leased. The Forest Supervisor will also determine what specific lands will be offered for leasing. The various leasing scenarios are described in detail in Section 2.4.2 of the Draft EIS. The proposal will amend the Los Padres National Forest Land and Resource Management Plan in accordance with regulations for oil and
Seven alternative leasing scenarios were analyzed and compared in the draft EIS. These alternatives are:
Alternative 5 and 5a were identified as “Preferred Alternatives” in the draft EIS. One or the other would be selected depending upon the outcome of the Roadless Rule.
Gloria Brown, Forest Supervisor, Los Padres National Forest, Goleta, California, is the responsible official.
In order to implement the proposed action the Forest Supervisor will amend the Los Padres Land and Resources Management Plan to incorporate the following leasing decisions:
1. Decide within Los Padres National Forest which, if any, National Forest System lands not already withdrawn from mineral entry, are available for oil and gas leasing and under what conditions (lease stipulations). (Reference: 36 CFR 228.102(d)).
2. Decide what specific National Forest System lands the Bureau of Land Management will be authorized to offer for lease, subject to Forest Service stipulations to be attached to leases issued by the Bureau of Land Management. (Reference: 36 CFR 228.102(e)).
3. If requested, recommend leasing options to the Bureau of Land Management for the non-federal lands with federal mineral ownership that are within the administrative boundary of Los Padres National Forest.
Subsequently, the BLM will decide whether or not to offer leases on the specific lands authorized by the Forest Service.
Forest Service, USDA.
Revised notice: intent to prepare an environmental impact statement
The Forest Service will prepare an environmental impact statement (EIS) to analyze and disclose the environmental effects of proposed activities within the three OHV Study project areas. The three OHV Study project areas are located on National Forest System lands administered by the Potosi/Fredericktown and Poplar Bluff Ranger Districts is southeast Missouri. The legal descriptions of the three study areas are as follows:
The primary purpose of this project is to study OHV use and users to guide future management options on OHV trail opportunities and use. This study will also evaluate equipment impacts to natural resources. Social impacts, such as customer satisfaction, demographics of trail users, and compatibility between trail users, would also be studied.
The Mark Twain National Forest needs to determine if designating more motorized trails can be done in a manner that not only provides for this recreational use, but also addresses environmental concerns. It is hoped that by providing additional designated OHV trails, OHV users would avoid undesignated roads and trails and, thereby, the overall environmental damage from unauthorized use can be reduced. Observations by OHV managers locally and from other states indicate that when OHV riders have designated areas to ride, they are more likely to stay on designated routes.
Therefore, the OHV customer, the resource manager, and the environment should all benefit from this study. Resource managers would be able to direct OHV customers to a designated trail system where impacts are confined, minimized, evaluated, monitored, and mitigated. With this study, OHV customers would know they are in an area where they can legally ride in a setting they enjoy. The Forest Service can promote responsible OHV use, better communicate with this forest user group, promote local partnerships for conservation education and OHV trail maintenance, and evaluate resource and social impacts.
The focus of this study is to evaluate OHV use in three separate study locations and publish an evaluation of what is learned. The results of this study would be used to guide future management decisions on OHV trail management here and elsewhere in the National Forest System. At the end of the study period, unless the study is modified or terminated early, a separate decision, following the National Environmental Policy Act process, would be made as to whether or not to designate all, part, or none of the three areas as permanent OHV trails. The data collected from this study and other ongoing national studies would be used to corroborate and assist in making that decision.
An original Notice of Intent was published in the
Comments concerning this revision should be received in writing within 30 days of this Notice's publication. Send comments to: Potosi/Fredericktown Ranger District, P.O. Box 188, Potosi, MO 63664. Electronic comments must be sent via the Internet to: comments-eastern-mark-
Tom McGuire, Project Leader/Integrated Resource Analyst, Potosi/Fredericktown Ranger District, P.O. Box 188, Potosi Missouri 63664, phone (573) 438-5427.
Further information about the proposal can be found in the original notice of intent originally published in the
The draft EIS is expected to be filed with the Environmental Protection Agency and available for public review in December 2005. A 45-day comment period will follow publication of a Notice of Availability of the draft EIS in the
The Forest Service believes it is important at this early stage to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of the draft EIS must structure their participation in the environmental review of the proposal in such a way that it is meaningful and alerts an agency to the reviewer's position and contentions.
The responsible official for this environmental impact statement is Ronnie Raum, Forest Supervisor, Mark Twain National Forest, 401 Fairgrounds Rd, Rolla, MO 65401 (573) 364-4621.
Lassen Resource Advisory Committee, Susanville, California, USDA Forest Service.
Notice of meetings.
Pursuant to the authorities in the Federal Advisory Committees Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Lassen National Forest's Lassen County Resource Advisory Committee will meet Thursday, May 12, 2005, at the Lassen National Forest Supervisor's Office, 2550 Riverside Drive, Susanville, California for a business meeting. The meeting is open to the public.
The business meeting on May 12th will begin at 9 a.m., at the Lassen National Forest Supervisor's Office. There will be an update on the Coordinated Resource Management Plan (CRMP), as well as HR2389 and the project-monitoring letter. Time will also be set aside for public comments at the beginning of the meeting.
Robert Andrews, District Ranger, Designated Federal Officer, at (530) 257-4188; or Public Affairs Officer Heidi Perry at (530) 252-6604.
Forest Service, USDA.
Action of meeting.
The Rogue/Umpqua Resource Advisory Committee (RAC) will meet on Thursday and Friday, May 19 and 20, 2005. The purpose of the meeting is monitor RAC projects through fieldtrips. The fieldtrip is scheduled to begin at 9 a.m. and conclude at approximately 4 p.m. on May 19 and begin at 9 a.m. and conclude at approximately 4 p.m. on May 20. The May 19 fiedltrip will be held on the Cottage Grove Ranger District, 78405 Cedar Park Road, Cottage Grove, OR. On May 20, the fieldtrip will be held on the Tiller Ranger District, 27812 Tiller Trail Highway, Tiller, OR. The agenda on both days includes a short business meeting from 9 to 9:30 a.m. to discuss RAC projects and funding, followed by monitoring RAC projects on the district. Public comments are welcome between 9 to 9:30 a.m. Written public comments may be submitted prior to the May fieldtrip by sending them to Designated Federal Official Jim Caplan at the address given below.
For more information regarding this meeting, contact Designated Federal Official Jim Caplan; Umpqua National Forest; 2900 NW., Stewart Parkway, Roseburg, Oregon 97470; (541) 580-0839.
Import Administration, International Trade Administration, Department of Commerce.
April 28, 2005.
Jon Freed or Michael Holton, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3818 and (202) 482-1324, respectively.
On March 31, 2005, the Department of Commerce (“Department”) received a Petition on imports of certain artist canvas from the People's Republic of China (“PRC”) (“Petition”) filed in proper form by Tara Materials Inc. (“Tara” or “Petitioner”) on behalf of the domestic industry and workers producing certain artist canvas. On April 7, 2005, the Department clarified that the official filing date for the Petition was April 1, 2005, and that the proper period of investigation (“POI”) is July 1, 2004, through December 31, 2004.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), Petitioner alleged that imports of certain artist canvas from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring and threaten to injure an industry in the United States.
The products covered by this investigation are artist canvases regardless of dimension and/or size, whether assembled or unassembled (
Artist canvases subject to this investigation are currently classifiable under subheadings 5901.90.20.00 and 5901.90.40.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Specifically excluded from the scope of this investigation are tracing cloths and stretcher strips, whether or not made from wood, so long as they are not incorporated into artist canvases or sold as part of an artist canvas kit. While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
During our review of the Petition, we discussed the scope with Petitioner to ensure that it accurately reflects the product for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage.
Comments should be addressed to Import Administration's Central Records Unit in Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230—Attn: Michael Holton. The period of scope consultations is intended to provide the Department with ample opportunity to consider all comments and consult with interested parties prior to the issuance of the preliminary determination.
Section 732(b)(1) of the Act requires that a Petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that the Department's industry support determination, which is to be made before the initiation of the investigation, be based on whether a minimum percentage of the relevant industry supports the Petition. A Petition meets this requirement if the domestic producers or workers who support the Petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the Petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the Petition, as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether a Petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
With regard to the domestic like product, Petitioner does not offer a
Our review of the data provided in the petition and other information readily available to the Department indicates that Petitioner has established industry support representing at least 25 percent of the total production of the domestic like product; and more than 50 percent of the production of the domestic like product produced by that portion of the industry, requiring no further action by the Department pursuant to section 732(c)(4)(D) of the Act. In addition, the Department received no opposition to the petition from domestic producers of the like product. Therefore, the domestic producers (or workers) who support the petition account for at least 25 percent of the total production of the domestic like product, and the requirements of section 732(c)(4)(A)(i) of the Act are met. Furthermore, the domestic producers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. Thus, the requirements of section 732(c)(4)(A)(ii) of the Act also are met. Accordingly, the Department determines that the petition was filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.
The Department finds that Petitioner filed this petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(G) of the Act and it has demonstrated sufficient industry support with respect to the antidumping investigation that it is requesting the Department initiate.
The following is a description of the allegation of sales at less than fair value upon which the Department based its decision to initiate this investigation. The sources of data for the deductions and adjustments relating to the U.S. price and the factors of production are also discussed in the
Petitioner based export price on a price list for artist canvas offered for sale by a producer and exporter of artist canvas located in the PRC.
Using the product codes contained in the price list provided to the U.S. buyer, Petitioner chose four of the most common types of artist canvas sold in the U.S. to be used for the dumping margin calculation.
Petitioner asserted that the PRC is a non-market economy country (“NME”) and no determination to the contrary has yet been made by the Department. In previous investigations, the Department has determined that the PRC is an NME.
Petitioner selected India as the surrogate country.
Petitioner provided a dumping margin calculation using the Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C).
For the normal value calculation, Petitioner valued the factors of production for artist canvas using surrogate values derived from official Indian government import statistics.
For each of the inputs detailed in the normal value calculations, Petitioner provided surrogate values based on Indian Import Statistics.
The Department calculates and publishes the surrogate values for labor to be used in NME cases. Therefore, to value labor, Petitioner used a labor rate of $0.93 per hour, in accordance with the Department's regulations.
Petitioner did not include amounts for energy consumption as a separate factor of production in its calculation of normal value. Since Petitioner did not directly value energy consumption in its normal value calculation and because the Department does not normally include energy costs in the numerator of its factory overhead ratio, the Department has not included an amount for energy in its recalculation of Petitioner's normal values.
Factory overhead, selling, general and administrative expenses, interest, and profit were derived from the 2003-2004 financial statements of Arvind Mills Limited, an Indian fabric producer.
In addition to the changes discussed above, the Department has adjusted Petitioner's normal value calculations with regard to how amounts for packing materials are incorporated into the normal value calculation. Petitioner stated that it had excluded the packing material amounts from the components of the normal value calculation to which the surrogate financial ratios were applied in the normal value calculations. However, Petitioner's calculation of normal value for the 16x20 stretched canvas and the 18x24 stretched canvas applied the surrogate financial ratios to the packing materials as well as to the material and labor amounts, which Petitioner valued directly. As a result, Petitioner's calculation overstated normal value to a certain extent for those two products. In light of this, the Department has recalculated the normal values for the 16x20 stretched canvas and the 18x24 stretched canvas so that packing costs are added to normal value after application of the surrogate financial ratios to the cost of manufacturing.
Based on the data provided by Petitioner, there is reason to believe that imports of certain artist canvas from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based upon comparisons of export price to the normal value, calculated in accordance with section 773(c) of the Act, the estimated recalculated dumping margins for certain artist canvas range from 242.09 percent to 264.09 percent.
The Petition alleges that the U.S. industry producing the domestic like product is being materially injured and is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value. The petitioner contends that the
The Department has assessed the allegations and supporting evidence (
The Department recently modified the process by which exporters and producers may obtain separate-rate status in NME investigations. This change is described in
The specific requirements for submitting a separate-rates application are outlined in detail in the application itself, and in Policy Bulletin 05.1, which is also available on the Department's Web site at
The deadline for submitting a separate-rates application applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers who purchase the subject merchandise and export it to the United States. Therefore, this notice constitutes public notification to all firms eligible to seek separate-rate status in the investigation of artist canvas from the PRC that they must submit a separate-rates application within 60 calendar days of the date of publication of this initiation notice in the
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in this investigation.
Based upon our examination of the Petition on certain artist canvas from the PRC, we find that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating an antidumping duty investigation to determine whether imports of certain artist canvas from the PRC are being, or are likely to be, sold in the United States at less than fair value. Unless it is postponed, we will make our preliminary determination no later than 140 days after the date of this initiation.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of the Petition has been provided to the Government of the PRC.
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, no later than May 16, 2005, whether there is a reasonable indication that imports of certain artist canvas from the PRC are causing material injury, or are threatening to cause material injury, to a U.S. industry. A negative ITC determination will result in this investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.---
On February 24, 2005, the Department of Commerce (the Department) published in the
Constance Handley or Saliha Loucif, at (202) 482-0631 or (202) 482-1779, respectively, AD/CVD Enforcement, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th
In accordance with 19 CFR 351.214(c), on January 31, 2005, Cablesa requested an administrative review of the antidumping duty order on prestressed concrete steel wire strand from Mexico. On February 24, 2005, in accordance with section 751(a)(2)(B)(ii) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(d)(1), we initiated the administrative review of this order for the period July 17, 2003 to December 31, 2004 (70 FR 9035). Cablesa withdrew its request for a first administrative review on March 29, 2005.
The Department's regulations at 19 CFR 351.213(d)(1) provide that the Department will rescind an administrative review if a party that requested a review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. Cablesa, the only interested party to request a review, withdrew its request for an administrative review within the 90-day period. Therefore, the Department is required to grant the request to rescind this administrative review.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.
This notice is issued and published in accordance with sections 751(a)(2)(B)(iv) and 777(I) of the Act and 19 CFR 351.214(f)(3).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (CPSMT) will hold a work session, which is open to the public. The CPSMT will meet Wednesday, May 18, 2005 from 8 a.m. until business for the day is completed.
The CPSMT will meet Wednesday, May 18, 2005 from 8 a.m. until business for the day is completed.
The CPSMT work session will be held at National Marine Fisheries Service, Southwest Fisheries Science Center, Small Conference Room (D-203), 8604 La Jolla Shores Drive, La Jolla, California 92037, (858) 546-7000.
Mr. Mike Burner, Pacific Fishery Management Council, (503) 820-2280.
The CPSMT will review the current Pacific mackerel stock assessment and develop harvest guideline and seasonal structure recommendations for the 2005-2006 fishery. The CPSMT will also review the 2005 CPS stock assessment and fishery evaluation (SAFE) document and analyses pertaining to a long-term allocation framework to apportion the annual Pacific sardine harvest guideline. Additionally, the CPSMT will develop recommendations for Council consideration at its June meeting in Foster City, CA review progress on development of management measures to regulate directed fisheries for krill, receive an update on Vessel Monitoring System issues, and address other assignments relating to coastal pelagic species management. No management actions will be decided by the CPSMT.
Although nonemergency issues not contained in the meeting agenda may come before the CPSMT for discussion, those issues may not be the subject of formal CPSMT action during this meeting. CPSMT action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the CPSMT's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at 503-820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The 89th meeting of the Western Pacific Fishery Council's Scientific and Statistical Committee (SSC) will convene in May 2005. Agenda topics are provided under the
The meeting will be held from 8:30 a.m. to 5 p.m. each day on May 17-19, 2005.
The 89th SSC meeting will be held at the Council office conference room, 1164 Bishop St., Suite 1400, Honolulu, HI; telephone: 808-522-8220.
Kitty M. Simonds, Executive Director; telephone 808-522-8220.
The SSC will discuss and may make recommendations to the Council on the agenda items below. The order in which agenda items will be addressed can change.
1. Introductions
2. Approval of Draft Agenda and Assignment of Rapporteurs
3. Approval of the Minutes of the 88th SSC Meeting
4. Insular Fisheries
A. Bottomfish Management
1. Report on Northwestern Hawaiian Islands Bottomfish Habitat Study
2. Main Hawaiian Islands Bottomfish Overfishing Plan (Action Item)
B. Black Coral Management
1. State of Hawaii Research
2. Black Coral Management Options (Action Item)
C. Bottomfish Plan Team Recommendations
D. Precious Coral Plan Team Recommendations
E. Public Comment
F. Discussion and Recommendations
5. Ecosystem and Habitat
A. Marine Protected Area Objectives and Criteria DRAFT (Action Item)
B. Ecosystem-Based Fishery Management Workshop
C. Report on Marianas Fisheries Ecosystem Plan Pilot Project
D. Coral Reef Plan Team Recommendations
E. Public Comment
F. Discussion and Recommendations
6. Pelagics Fisheries
A. Bigeye Overfishing Plan (Action Item)
1. International
2. Domestic Federal Permits and Reporting
B. American Samoa & Hawaii Longline Fisheries Quarterly Reports
C. International Issues
D. Plan Team Recommendations
E. Public Comment
F. Discussion and Recommendations
7. Protected Species
A. Sea Turtles
1. Technical Assistance Workshop
2. Ridleys Sea Turtle Biological Opinion
3. Report on the Turtle Advisory Committee
B. Marine Mammals
1. Report on Marine Mammal Advisory Committee
C. Public Comment
D. Discussion and Recommendations
8. Other Business
A. 90th SSC meeting
9. Summary of SSC Recommendations to the Council Paul Callaghan
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, 808-522-8220 (voice) or 808-522-8226 (fax), at least 5 days prior to meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Applications for two scientific research permits (1531, 1532) and requests to modify two permits (1119, 1338).
Notice is hereby given that NMFS has received two scientific research permit applications and two modification requests relating to Pacific salmon. The proposed research is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and to help guide management and conservation efforts.
Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (see ADDRESSES) no later than 5 p.m. Pacific daylight-saving time on May 31, 2005.
Written comments on the application should be sent to Protected Resources Division, NMFS, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. Comments may also be sent via fax to 503-230-5441 or by e-mail to
Garth Griffin, Portland, OR (ph.: 503-231-2005, Fax: 503-230-5441, e-mail:
The following listed species and evolutionarily significant units (ESUs) are covered in this notice:
Chinook salmon (
Chum salmon (
Steelhead (
Coho salmon (
Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531 et. seq) and regulations governing listed fish and wildlife permits (50 CFR 222-226). NMFS issues permits based on findings that such permits: (1) are applied for in good faith; (2) if granted and exercised, would not operate to the disadvantage of the listed species that are the subject of the permit; and (3) are consistent with the purposes and policy of section 2 of the ESA. The authority to take listed species is subject to conditions set forth in the permits.
Anyone requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see
The U.S. Fish and Wildlife Service (FWS) is seeking to modify its 5-year permit covering six studies that, among them, would annually take adult and juvenile endangered UCR spring chinook salmon (natural and artificially propagated) and UCR steelhead (natural and artificially propagated) at various points in the Wenatchee, Entiat, Methow, Okanogan, and Yakima River watersheds and other points in eastern Washington State. The ongoing research projects are: Study 1-Recovery of ESA-listed Entiat River Salmonids through Improved Management Actions; Study 2-Peshastin Creek Salmonid Production and Life History Investigations; Study 3-Entiat Basin Spawning Ground Surveys; Study 4-Snorkel Surveys in the Wenatchee, Entiat, Methow, Okanogan, and Yakima Watersheds and Other Waterways of Eastern Washington; Study 5-Fish Salvage Activities in the Wenatchee, Entiat, Methow, Okanogan, and Yakima Watersheds and other Waterways of Eastern Washington; Study 6-Icicle
The research has many purposes and would benefit listed salmon and steelhead in different ways. In general, the purposes of the research are to (a) gain current information on the status and productivity of various fish populations (to be used in determining the effectiveness of restoration programs); (b) collect data on the how well artificial propagation programs are helping salmon recovery efforts (looking at hatchery and wild fish interactions); (c) support the aquatic species restoration goals found in several regional plans; and (d) fulfill ESA requirements for several fish hatcheries. The fish would benefit through improved recovery actions, better designs for hatchery supplementation programs, and by being rescued outright when they are stranded by low flows in Eastern Washington streams. The FWS does not intend to kill any of the fish being captured, but a small percentage may die as an unintentional result of the research activities.
The FWS is asking to modify its 5-year permit to continue studying salmonids in tributaries of the Lower Columbia River. The FWS is requesting to increase its annual take of juvenile LCR chinook salmon and CR chum salmon because the abundance of juvenile salmon has increased in the study area.
The research is designed to provide a better understanding of life history requirements and factors affecting chum salmon in Hardy Creek and in Hamilton Springs and ultimately to improve the conservation of salmonids in the lower Columbia River. The study will benefit listed chum salmon by providing information on their freshwater life history that can be used in Columbia River water management and recover planning. The FWS is requesting authorization to capture (using fyke nets, weirs, or screw traps), handle, mark, and release additional juvenile fish. The USFWS does not intend to kill any fish being captured but some additional fish may die as an unintentional result of the research activities.
Aaron Maxwell of the Southern Oregon University (SOU) is asking for a 3-year research permit to identify existing salmonid strongholds and detail threats to salmonid survival and recovery. The research will take place in Bear Creek, a tributary to the Rogue River in southern Oregon. The SOU is requesting to take juvenile SONCC coho salmon.
The research is designed to assess species abundance and to further document the location of habitats occupied by native and non-native fish species in the Bear Creek Watershed. Detailed species abundance data will be used to identify productive habitats and to prioritize sites of feasible restoration potential. The study will benefit listed coho salmon by providing information on habitat that could be used for the long-term protection of intact ecosystems in the Klamath-Siskiyou Bioregion. The SOU proposes to capture, using minnow traps, handle, and release listed salmonids. The SOU does not intend to kill any fish being captured but some may die as an unintentional result of the research activities.
The Columbia River Inter-Tribal Fish Commission (CRITFC) is seeking a 5-year permit to take juvenile MCR steelhead during the course of research designed to determine their freshwater movements and how those movements are affected by the area's substantially altered hydrograph. The research will take place in Satus, Ahtanum, and Toppenish Creeks, Washington.
The fish will be captured using screw traps, anesthetized, and some will be tissue-sampled and some will receive passive integrated transponder (PIT) tags. The information gathered will be used to determine the fishes' movements, abundance, and the ongoing status of the various MCR steelhead populations in the Yakima River subbasin. The research will benefit the fish by helping managers determine the effectiveness of current recovery measures and design new ones where needed. The CRITFC does not plan to kill any of the fish being captured, but a few may die as an unintentional result of the research.
This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the applications, associated documents, and comments submitted to determine whether the applications meet the requirements of section 10(a) of the ESA and Federal regulations. The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted a public information collection request (ICR) entitled AmeriCorps Member Satisfaction Surveys to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, Pub. L. 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, LaMonica Shelton at (202) 606-5000, ext. 464. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (202) 565-2799 between 8:30 a.m. and 5 p.m. eastern time, Monday through Friday.
Comments must be received on or before May 31, 2005.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Katherine Astrich, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods:
(1) By fax to: (202) 395-6974, Attention: Ms. Katherine Astrich, OMB Desk Officer for the Corporation for National and Community Service; and
(2) Electronically by e-mail to:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose 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,
A 60-day public comment Notice was published in the
The Department is not bound by any estimates in this notice.
Project Period: Up to 60 months.
This priority is:
The project must—
• Demonstrate experience and capacity to provide for a national clearinghouse of rehabilitation training materials;
• Identify and gather rehabilitation information and training materials for use in preparing pre-service and in-service education and training for rehabilitation personnel;
• Disseminate, in a cost-effective manner, rehabilitation information and state-of-the-art training materials and methods to rehabilitation personnel to assist them in achieving improved outcomes in vocational rehabilitation, supported employment, and independent living; and
• Provide linkages and policies for the exchange of information and referral of inquiries with other existing clearinghouses and information centers supported by the U.S. Department of Education, including the Educational Resources Information Center and the National Rehabilitation Information Center.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
2.
Under 34 CFR 75.562(c), an indirect cost reimbursement on a training grant is
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.275A.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, you must include all of the application narrative in Part III.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition must be submitted electronically using the Electronic Grant Application System (e-Application) available through the Department's e-Grants system. For information (including dates and times) about how to submit your application electronically or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Deadline for Intergovernmental Review: August 11, 2005.
4.
5.
6.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
a.
Applications for grants under Rehabilitation Training—National Clearinghouse of Rehabilitation Training Materials—CFDA Number 84.275A must be submitted electronically using e-Application available through the Department's e-Grants system, accessible through the e-Grants portal page at:
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• You must complete the electronic submission of your grant application by 4:30 p.m., Washington, DC time, on the application deadline date. The e-Application system will not accept an application for this competition after 4:30 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The regular hours of operation of the e-Grants Web site are 6 a.m. Monday until 7 p.m. Wednesday; and 6 a.m. Thursday until midnight Saturday, Washington, DC time. Please note that the system is unavailable on Sundays, and between 7 p.m. on Wednesdays and 6 a.m. on Thursdays, Washington, DC time, for maintenance. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Any narrative sections of your application should be attached as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgment that will
• Within three working days after submitting your electronic application, fax a signed copy of the ED 424 to the Application Control Center after following these steps:
(1) Print ED 424 from e-Application.
(2) The applicant's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the ED 424.
(4) Fax the signed ED 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of e-Application and you have initiated an electronic application for this competition; and
(2)(a) The e-Application system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) The e-Application system is unavailable for any period of time between 3:30 p.m. and 4:30 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgment of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under For
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Department's e-Application system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application. If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Edward Smith, U.S. Department of Education, 400 Maryland Avenue, SW., room 5027, Potomac Center Plaza, Washington, DC 20202-2800. Fax: (202) 245-7591.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for any exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.275A), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260. The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
• Identify and gather rehabilitation information and training materials for use in preparing pre-service and in-service education and training for rehabilitation personnel;
• Disseminate, in a cost-effective manner, rehabilitation information and state-of-the-art training materials and methods to rehabilitation personnel to assist them in achieving improved outcomes in vocational rehabilitation, supported employment, and independent living; and
• Provide linkages and policies for the exchange of information and referral of inquiries with other existing clearinghouses and information centers supported by the U.S. Department of Education, including the Education Resources Information Center and the National Rehabilitation Information Center.
The grantee must, in their annual progress report, present the results of analysis of their performance in achieving the goals and objectives it sets forth in its application. The report must include, at a minimum, the number of requests received and filled; average time to respond to a request; and an analysis any customer satisfaction survey findings, including findings from questions about the product quality, relevance, and utility.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Please see the chart elsewhere in this notice (
Basic Awards: $19,413-$325,590.
Quality Awards: $20,000-$60,000.
Basic Awards: $63,234.
Quality Awards: $40,000.
Basic Awards: 80.
Quality Awards: 30.
The Department is not bound by any estimates in this notice.
In order to be considered for a Quality Award, applicants must submit a separate Application for Federal Assistance (ED 424).
These priorities are:
The proposed project demonstrates an effective plan to develop and disseminate information on its State VR In-Service Training program, including the identification of training approaches and successful practices, in order to permit the replication of these programs by other State VR units.
The proposed project demonstrates innovative strategies for training State VR unit personnel through distance education methods, such as interactive audio, video, computer technologies, or existing telecommunications networks.
The proposed project supports specialized training in the provision of VR or related services to individuals with disabilities to increase the rehabilitation rate into competitive employment for all individuals or specified target groups.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Basic awards are calculated annually and distributed according to staffing levels of the State agencies obtained from data on the Annual Vocational Rehabilitation Program/Cost Report (RSA-2). The minimum level of a basic award is one-third of one percent of the funds available. For FY 2005 that amount is $19,413 (34 CFR 388.21(a)(3)).
The following chart lists, by State agency, the Estimated Available Funds for Basic Awards.
Basic Awards: $63,234.
Quality Awards: $40,000.
Basic Awards: 80.
Quality Awards: 30.
The Department is not bound by any estimates in this notice.
1.
2.
Under 34 CFR 75.562(c), an indirect cost reimbursement on a training grant is limited to the recipient's actual indirect costs, as determined by its negotiated indirect cost rate agreement, or eight percent of a modified total direct cost base, whichever amount is less. Indirect costs in excess of the eight percent limit may not be charged directly, used to satisfy matching or cost-sharing requirements, or charged to another Federal award.
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.265A.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, you must include all of the application narrative in Part III.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications Available: April 28, 2005.
Deadline for Transmittal of Applications: June 13, 2005.
Applications for grants under this competition must be submitted electronically using the Electronic Grant Application System (e-Application) available through the Department's e-Grants system. For information (including dates and times) about how to submit your application electronically or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
4.
5.
6.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
a.
Applications for grants under State Vocational Rehabilitation Unit In-Service Training—CFDA Number 84.265A must be submitted electronically using e-Application available through the Department's e-Grants system, accessible through the e-Grants portal page at:
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• You must complete the electronic submission of your grant application by 4:30 p.m., Washington, DC time, on the application deadline date. The e-Application system will not accept an application for this program after 4:30 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The regular hours of operation of the e-Grants Web site are 6 a.m. Monday until 7 p.m. Wednesday; and 6 a.m. Thursday until midnight Saturday, Washington, DC time. Please note that the system is unavailable on Sundays, and between 7 p.m. on Wednesdays and 6 a.m. on Thursdays, Washington, DC time, for maintenance. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Any narrative sections of your application should be attached as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgment that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the ED 424 to the Application Control Center after following these steps:
(1) Print ED 424 from e-Application.
(2) The applicant's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the ED 424.
(4) Fax the signed ED 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of e-Application and you have initiated an electronic application for this competition; and
(2)(a) The e-Application system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) The e-Application system is unavailable for any period of time between 3:30 p.m. and 4:30 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgment of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Department's e-Application system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application. If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Marilyn P. Fountain, U.S. Department of Education, 400 Maryland Avenue, SW., room 5028, Potomac Center Plaza, Washington, DC 20202-2800. Fax: (202) 245-7591.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for any exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c. Submission of Paper Applications by Hand Delivery.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.265A), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
In order to measure the success of the State VR Unit In-Service Training program grantees in meeting this objective, State VR agencies are required to submit performance data through the in-service annual performance report and their State plans. At a minimum, the annual performance report must include data on the percentage of currently employed VR State agency counselors who meet their States' CSPD standards.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
Take notice that on April 14, 2005, Algonquin Gas Transmission, LLC (Algonquin) tendered for filing as a part of its FERC Gas Tariff, Fifth Revised Volume No. 1, the tariff sheets on Appendix A to the filing, to become effective April 1, 2005.
Algonquin states that the purpose of this filing is to implement the negotiated rate transactions for transportation service to be rendered to Consolidated Edison Company of New York, Inc. and Orange and Rockland Utilities, Inc.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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 April 14, 2005, the Commission issued an order initiating a proceeding in Docket No. EL05-83-000 under section 206 of the Federal Power Act concerning the justness and reasonableness of the market-based rates of Aquila, Inc., and its affiliates, specified in the caption above, in the Missouri and Kansas control areas.
The refund effective date in Docket No. EL05-83-000, 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 April 11, 2005, Cameron LNG, LLC and Cameron Interstate Pipeline, LLC, 101 Ash Street, San Diego, CA 92101, filed in the above-referenced dockets, applications for: (1) abandonment by intra-corporate transfer pursuant to section 7(b) of the Natural Gas Act of the pipeline certificates issued to Cameron LNG, LLC at Docket Nos. CP02-374-000, CP02-376-000 and CP02-377-000; and (2) a certificate of public convenience and necessity under section 7(c) of the Natural Gas Act and Part 157, Subpart A of the Commission's regulations authorizing Cameron Interstate Pipeline to construct, own, operate, and maintain the pipeline facilities described therein. Cameron Interstate Pipeline also seeks (a) a blanket certificate pursuant to Part 157, Subpart F of the Commission's regulations; and (b) a blanket certificate pursuant to Part 284, Subpart G of the Commission's regulations.
The applications are on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Cameron LNG, LLC proposes to transfer development of the previously certificated interstate pipeline aspects of its project to Cameron Interstate Pipeline, LLC. The application states that there will be no change to the siting, operation and maintenance of the pipeline as previously certificated at Docket Nos. CP02-374-000, CP02-376-000 and CP02-377-000.
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 shown below. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “efiling” link at
Take notice that Cantera Gas Company (Cantera) and PVR Gas Pipeline, LLC (PVR), 3 Radnor Corporate Center, Suite 230, 100 Matson Ford Road, Radnor, Pennsylvania, 19087, filed in Docket Nos. CP05-122-000 and CP05-123-000 on April 11, 2005, an application pursuant to sections 7(b) and 7 (c) of the Natural Gas Act (NGA) and the Commission's Regulations, for authorization (i) for Cantera to abandon its section 7 (c) certificate of public convenience and necessity and blanket certificate under Subpart F of Part 157 of the Commission's Regulations, and (ii) to grant PVR a Section 7 (c) certificate of public convenience and necessity and a blanket certificate under Subpart F of Part 157 of the Commission's Regulations. The authorization is to effectuate Cantera's transfer of its sole 11-mile, 10-inch diameter pipeline, its sole jurisdictional facility, to its affiliate PVR, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at
Any questions regarding this application should be directed to Randy Lentz, Penn Virginia Resource GP, LLC, the General Partner of Penn Virginia Resource Partners, L.P., 8080 North Central Expressway, Suite 900, Dallas,
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link.
Take notice that on April 15, 2005, CenterPoint Energy—Mississippi River Transmission Corporation (MRT) tendered for filing and approval an amendment to a negotiated rate agreement between MRT and Union Electric Company, d/b/a AmerenUE, to be effective May 1, 2005. MRT further states it also has submitted this agreement as a non-conforming agreement, to be included as part of its FERC Gas Tariff, Third Revised Volume No. 1, also to be effective May 1, 2005.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on April 15, 2005, Discovery Gas Transmission LLC (Discovery) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets, to be effective April 1, 2005:
Discovery states that this filing is intended to comply with the Commission's Letter Order issued on March 31, 2005.
Discovery further states that copies of the filing have been mailed to each of its customers, interested State Commissions and other interested persons.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on April 18, 2005, Dominion Cove Point LNG, LP (Cove Point) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, 2004, Second Sub. Fourth Revised Sheet No. 10; and First Revised Sheet No. 75, to become effective April 1, 2004.
Cove Point states that the sheets are being filed in compliance with the Commission's “Order on Compliance and Rehearing and Establishing Hearing” issued March 25, 2005, in the above captioned docket.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Harvard Dedicated Energy Limited (HDEL) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for the sales of capacity and energy at market-based rates. HDEL also requested waiver of various Commission regulations. In particular, HDEL requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by HDEL.
On April 20, 2005, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted the request for blanket approval under part 34. The Director's order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing motions to intervene or protest is May 20, 2005.
Absent a request to be heard in opposition by the deadline above, HDEL is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of HDEL, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of HDEL's issuances of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
On April 19, 2005, the Commission issued an order initiating a proceeding in Docket No. EL05-91-000 under section 206 of the Federal Power Act concerning the continued justness and reasonableness of New England ISO's previously-accepted Schedule 3 for Reliability Administration Service.
The refund effective date in Docket No. EL05-91-000, established pursuant to section 206 of the Federal Power Act, will be 60 days from the date of
On April 15, 2005, the Commission issued an order initiating a proceeding in Docket No. EL05-84-000 under section 206 of the Federal Power Act to determine whether the Tri-Lakes Agreement and a Conversion Agreement between Niagara Mohawk Power Corporation (Niagara Mohawk), the New York Power Authority and the Villages of Tupper Lake and Lake Placid, as well as the revisions to Niagara Mohawk's Rate Schedule 204 necessary to effectuate these agreements, should be filed under the New York Independent System Operator, Inc. tariff. 111 FERC ¶ 61,048 (2005).
The refund effective date in Docket No. EL05-84-000, established pursuant to section 206 of the Federal Power Act, will be 60 days following publication of this notice in the
On April 15, 2005, the Commission issued an order initiating a proceeding in Docket No. EL05-84-000 under section 206 of the Federal Power Act to determine whether the Tri-Lakes Agreement and a Conversion Agreement between Niagara Mohawk Power Corporation (Niagara Mohawk), the New York Power Authority and the Villages of Tupper Lake and Lake Placid, as well as the revisions to Niagara Mohawk's Rate Schedule 204 necessary to effectuate these agreements, should be filed under the New York Independent System Operator, Inc. tariff. 111 FERC ¶ 61,048 (2005).
The refund effective date in Docket No. EL05-84-000, 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 April 14, 2005, Northern Natural Gas Company (Northern) tendered for filing to become part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Tenth Revised Sheet No. 303, to be effective on May 15, 2005.
Northern states that it is filing the above-referenced tariff sheet to incorporate additional types of permissible discounts in section 54(B) of the General Terms and Conditions of its Tariff.
Northern further states that copies of the filing have been mailed to each of its customers and interested state commissions.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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
Take notice that on April 19, 2005, Northern Natural Gas Company (Northern) tendered for filing to become part of Northern's FERC Gas Tariff, Fifth Revised Volume No. 1, Substitute Sixth Revised Sheet No. 297, with an effective date of December 30, 2004. Northern states it is filing the above-referenced tariff sheet in compliance with the Commission's March 25, 2005 Order.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu
This filing is accessible on-line at
Take notice that on April 14, 2005, Northern Natural Gas Company (Northern) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Tenth Revised Sheet No. 303, with an effective date of May 15, 2005.
Northern states that the filing is being made to incorporate additional types of permissible discounts in section 54(B) of the General Terms and Conditions of its Tariff.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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 April 19, 2005, the Commission issued an order initiating a proceeding in Docket No. EL05-90-000 under section 206 of the Federal Power Act to examine whether the interconnection portion of PJM Interconnection, L.L.C.'s (PJM) open access transmission tariff (OATT) needs to be modified to allow PJM to enter into conforming interconnection agreements.
The refund effective date in Docket No. EL05-90-000, established pursuant to section 206 of the Federal Power Act, will be 60 days from the date of publication of this notice in the
Take notice that on April 11, 2005, Questar Pipeline Company (Questar), tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets, to be effective May 14, 2005:
Questar states that, due to shipper inquiries regarding the section of Questar's tariff pertaining to the right of first refusal (ROFR) for firm shippers, Questar has determined that further clarification of this section is necessary. Questar states that this filing proposes changes that restate concisely the scope of a shipper's ROFR and the procedure for exercising a shipper's ROFR. Questar further states that these changes are proposed in order to reduce or eliminate confusion on this issue.
Questar states that copies of this filing were served upon Questar's customers, the Public Service Commission of Utah and the Public Service Commission of Wyoming.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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
Take notice that on April 18, 2005, Southern Natural Gas Company (Southern) tendered for filing its Negotiated Rate Tariff Filing in Docket No. RP01-205-007 to reflect a name change for Lester PDC, LTD and to correct the backhaul rates shown on the First Revised Sheet Nos. 23N and 23O, which amends its filings in Docket Nos. RP01-205-005 and 006.
Southern requests that the Commission grant such approval of the tariff sheets effective April 1, 2005 and March 1, 2005, respectively.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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
Total Gas & Electricity (PA), Inc. (TG&E PA) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for the sales of capacity, energy, and ancillary services at market-based rates. TG&E PA also requested waiver of various Commission regulations. In particular, TG&E PA requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by TG&E PA.
On April 14, 2005, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted the request for blanket approval under part 34. The Director's order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing motions to intervene or protest is May 16, 2005.
Absent a request to be heard in opposition by the deadline above, TG&E PA is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of TG&E PA, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of TG&E PA's issuances of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on April 20, 2005, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Fourth Revised Sheet No. 135F to be effective March 31, 2005.
Transco states that the purpose of the instant filing is to revise section 8.2 of Rate Schedule WSS-Open Access by deleting Public Service Electric & Gas (PSE&G) from the list of buyers as a result of a permanent release of WSS-OA service effective March 31, 2005.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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 April 14, 2005, the Commission issued an order initiating a proceeding in Docket No. EL05-87-000 under section 206 of the Federal Power Act concerning the justness and reasonableness of Tucson Electric Power Company's market-based rates in the Tucson control area.
The refund effective date in Docket No. EL05-87-000, 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 April 15, 2005, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Fifth Revised Sheet No. 293, to become effective May 15, 2005.
Williston Basin states that it is proposing to revise its tariff language to define the timeline governing situations where no acceptable third party bids for released capacity are received during the right of first refusal process.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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
Take notice that on April 15, 2005, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the
Williston Basin states that it has revised the above-referenced tariff sheets found in section 48 of the general terms and conditions of its FERC Gas Tariff, Second Revised Volume No. 1, to rename two existing receipt points: Point ID No. 00880 (Bowdoin Whitewater to Whitewater) in Williston Basin's Bowdoin Pool, and Point ID No. 04840 (Billy Creek Plant to Kinder Morgan-Billy Creek) in Williston Basin's Billy Creek Pool.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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
Take notice that on April 15, 2005, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, to become effective May 15, 2005:
Williston Basin states that it is proposing the tariff changes in order to provide additional flexibility for Williston Basin's shippers and potential shippers by allowing such shippers the opportunity to request additional or new discounted services in conjunction with the evening and/or intra-day nomination cycles.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
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 following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on April 14, 2005, Tenaska Power Fund, L.P. (Power Fund), TPF Calumet, LLC (TPF Calumet), Calumet Energy Team, LLC (CET), and CET Two, LLC (CET Two) (collectively, Applicants) tendered for filing with the Federal Energy Regulatory Commission pursuant to section 203 of the Federal Power Act and Part 33 of the Commission's regulations, an application authorizing TPF Calumet to purchase all of the membership interests in CET from CET Two. CET states it owns an approximately 300 MW electric generating facility located in Chicago, Illinois. Applicants request confidential treatment of certain parts of the Application.
Applicants state that a copy of the filing was served on the Illinois Commerce Commission.
Take notice that on April 15, 2005, Pinnacle West Energy Corporation (PWEC) and Arizona Public Service Company (APS) filed with the Federal Energy Regulatory Commission an application pursuant to section 203 of the Federal Power Act for authorization of a disposition by PWEC and the acquisition by APS of jurisdictional facilities. Applicants states that it seeks authorization for the transfer, directly or indirectly, by PWEC to APS of certain jurisdictional facilities, specifically the step-up transformers, tie lines, switchyard and associated jurisdictional facilities of the following generating units: Saguaro Combustion Turbine Unit 3 located in Red Rock, Arizona; West Phoenix Combined Cycle Unit 4 located in Phoenix, Arizona; West Phoenix Combined Cycle Unit 5 located in Phoenix, Arizona; Redhawk Combined Cycle Unit 1 located in Arlington, Arizona; and Redhawk Combined Cycle Unit 2 located in Arlington, Arizona.
Take notice that on April 13, 2005, FPL Energy Horse Hollow Wind, LP (FPLE Horse Hollow), 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.
FPLE Horse Hollow states it will own an approximate wind-powered generating facility of up to 305 MW located in Taylor County, Texas.
Take notice that on April 14, 2005, San Joaquin Cogen, L.L.C. (San Joaquin), filed with the Commission an application for prospective determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
San Joaquin states that it is a limited liability company, organized under the laws of the State of Delaware, and engaged directly and exclusively in owning and operating the San Juaquin Cogen, L.L.C. electric generating facility located in Lathrop, California, and selling electric energy at wholesale from the facility.
Take notice that on April 15, 2005, Brascan Power Piney & Deep Creek LLC (Brascan Power PDC) filed an application for a determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations. Brascan Power PDC states that it is a Delaware limited liability company that will acquire and operate the Piney Hydroelectric Project (Project No. 309) and the Deep Creek Hydroelectric Project (formerly licensed by the Commission as Project No. 2370), from Reliant Energy Mid-Atlantic Power Holdings, LLC and Reliant Energy Maryland Holdings, LLC, respectively.
Take notice that April 12, 2005, Niagara Mohawk Power Corporation, a National Grid Company, and the New York Independent System Operator, Inc. jointly submit this compliance filing pursuant to the Commission's Order Approving Uncontested Settlement Agreement issued on March 25, 2005 in the above-referenced proceedings.
Take notice that on April 11, 2005, Oklahoma Gas and Electric Company (OG&E) and OGE Energy Resources, Inc. (OERI) submitted blacklined versions of the market-based rate tariffs of Oklahoma Gas and Electric Company (FERC Electric Tariff, First Revised Volume No. 3) and OGE Energy Resources, Inc. (Second Revised Rate Schedule FERC No. 1) originally filed on February 7, 2005 in Docket Nos. ER98-511-013 and ER97-4345-015.
OG&E states that copies of the filing were served upon all parties in Docket Nos. ER98-511-000 and ER97-4345-000.
Take notice that, on April 12, 2005, the California Independent System Operator Corporation (ISO) submitted a filing in compliance with the Commission's “order “ issued on February 11, 2005, in the above-identified dockets, 110 FERC ¶ 61,124.
The ISO states that this filing has been served on all parties on the official service lists for the captioned dockets. In addition, the ISO is posting this filing on the ISO Home Page.
Take notice that on April 12, 2005, UGI Development Company filed its market-based rate update pursuant to the Commission's Order in
Take notice that, on April 12, 2005, Casco Bay Energy Company, LLC submitted for filing revisions to its market-based rate tariff, designated as FERC Electric Tariff, Original Volume No. 1, to include the change in status reporting requirements adopted in
Casco Bay states that copies of the filing were served upon the parties on the official service list in the above-captioned proceeding.
Take notice that on April 11, 2005, Arizona Public Service Company (APS) and Electrical District Number Seven of Maricopa County, Roosevelt Irrigation District, Buckeye Water Conservation and Drainage District, Maricopa County Municipal Water Conservation District Number One, Aguila Irrigation District, Harquahala Valley Power District, Electrical District Number Eight of
Take notice that on April 11, 2005, Otter Tail Power Company (Otter Tail) submitted its updated market analysis as required by the Federal Energy Regulatory Commission's orders in
Otter Tail states that copies of the public version of this filing have been served on all parties to the proceeding captioned above, as well as the state commissions of Minnesota, North Dakota, and South Dakota.
Take notice that on April 15, 2005, Mill Run Windpower, LLC (Mill Run) filed a supplement to its February 28, 2005 filing in Docket Nos. ER01-1710-004 and ER05-660-000.
Mill Run states that copies of the filing were served on parties on the official service lists for Docket Nos. ER01-1710 and ER05-660 and on the Florida Public Service Commission.
Take notice that, on April 15, 2005, Somerset Windpower, LLC (Mill Run) filed a supplement to its February 28, 2005 filing in Docket Nos. ER01-2139-005 and ER05-661-000.
Mill Run states that copies of the filing were served on parties on the official service list for Docket Nos. ER01-2139 and ER05-661 and on the Florida Public Service Commission.
Take notice that on April 11, 2005, Ontario Energy Trading International Corp. (Ontario Energy) submitted a compliance filing pursuant to the Commission's new interim generation market power screens issued on April 14, 2004 in
Ontario Energy states that copies of the filing were served on parties on the official service list in Docket No. ER02-1021-000.
Take notice that on April 12, 2005, Entergy Services, Inc., on behalf of Entergy Louisiana, Inc., tendered for filing with the Federal Energy Regulatory Commission, a compliance Interconnection and Operating Agreement with Occidental Chemical Corporation in response to the Commission's December 22, 2004, order in
Take notice that, on April 12, 2005, the California Independent System Operator Corporation (ISO) submitted an informational filing regarding to the ISO's updated transmission Access Charge rates effective as of January 1, 2005.
The ISO states that this filing has been served upon the Public Utilities Commission of the State of California, the California Energy Commission, the California Electricity Oversight Board, the Participating Transmission Owners, and upon all parties with effective Scheduling Coordinator Service Agreements under the ISO Tariff. In addition, ISO states it is posting the filing on the ISO Home Page.
Take notice that on April 8, 2005 Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted for filing a withdrawal of its February 15, 2005 filing of Amendment No. 1 to the Generation-Transmission Interconnection Agreement among Wisconsin Electric Power Company, the Midwest ISO and American Transmission Company LLC for the Elm Road Generating Facility.
Midwest ISO states that it has served the foregoing document upon each person designated on the official service list compiled by the Secretary in the above-captioned proceeding.
Take notice that on April 8, 2005, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted for filing a withdrawal of its February 16, 2005 filing of Amendment No. 1 to the Generation-Transmission Interconnection Agreement among Wisconsin Electric Power Company, the Midwest ISO and American Transmission Company LLC for the Port Washington Generating Facility.
Midwest ISO states that it has served the foregoing document upon each person designated on the official service list compiled by the Secretary in the above-captioned proceeding.
Take notice that on April 8, 2005, Gexa Energy LLC (Gexa), filed an amendment to its March 21, 2005 petition requesting Commission acceptance of Gexa's Rate Schedule FERC No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations.
Take notice that on April 15, 2005, ISO New England Inc. (the ISO) submitted for filing a motion for expedited consideration and to revise the effective date requested in the Amendments to Appendix A of Market Rule 1 Regarding Reference Price Calculations, filed in this proceeding jointly by the ISO and the New England Power Pool Participants Committee on April 1, 2005.
Take notice that on April 8, 2005, the California Independent System Operator Corporation (ISO) tendered for filing an amendment to the ISO Tariff
The ISO states that this filing has been served on the California Public Utilities Commission, the California Energy Commission, the California Electricity Oversight Board, all parties with effective Scheduling Coordinator Service Agreements under the ISO Tariff, and all parties in Docket No. EL04-132. In addition, the ISO states that it has posted the filing on its Web site.
Take notice that on April 8, 2005, Orange and Rockland Utilities, Inc. (O&R) tendered for filing an amendment to its open access transmission tariff, FERC Electric Tariff, Original Volume No. 3. O&R states that the filing proposes a surcharge mechanism applicable to costs associated with the undergrounding of existing transmission facilities at the request or requirement of municipal governmental authorities. O&R requests an effective date of May 1, 2005.
Take notice that on April 8, 2005, Virtual Energy, Inc. (Virtual Energy) petitioned the Commission for acceptance of Virtual Energy, Inc. Rate Schedule FERC No. 1, under which Virtual Energy will engage in wholesale electric power and energy transactions as a marketer; the granting of certain blanket approvals, including the authority to sell electricity at market based rates; and the waiver of certain Commission regulations.
Take notice that on April 8, 2005, Southwest Power Pool, Inc. (SPP) submitted for filing a partially executed service agreement for network integration transmission service (service agreement) between SPP and Oklahoma Municipal Power Authority (OMPA), as well as an executed Network Operating Agreement (NOA) between SPP, OMPA and Oklahoma Gas and Electric Company (OKGE). SPP requests an effective date of April 1, 2005.
SPP states that both OMPA and OKGE were served with a copy of this filing.
Take notice that on April 8, 2005, Mirabito Gas & Electric, Inc. (Marabito) filed a Notice of Cancellation of its market-based rate authority in Docket No. ER00-3717-000, effective December 8, 2000.
Take notice that on April 8, 2005, Naniwa Energy LLC (Naniwa) submitted Notices of Cancellation of Service Agreement Nos. 1 and 2 under Naniwa's FERC Electric Tariff, Original Volume No. 1, effective July 20, 2004. Naniwa states that all consents have been obtained for such cancellation and that a copy of this filing has been served upon the customers under the service agreements.
Take notice that on April 8, 2005, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted, pursuant to section 205 of the Federal Power Act, revisions to the Midwest ISO's open access transmission and energy markets tariff to address several issues related to financial transmission rights. The Midwest ISO requests and effective date of May 6, 2005.
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 Tariff Customers under the EMT, 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, the Midwest ISO states that the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that, on April 8, 2005, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted proposed revisions to Attachment H-1 (Index of Interconnection Agreement Customers) of its energy markets tariff to reflect the addition of an interconnection agreement to be executed between Indiana & Michigan, Northern Indiana Public Service Company, PJM Interconnection, Inc. and the Midwest ISO as Service Agreement No. 1524 in compliance with the Commission's March 9, 2005
The Midwest ISO states that copies of the filing were served on parties on the official service list in Docket Nos. ER05-31-000 and EL05-70-000. In addition, the Midwest ISO states that it has served a copy of this filing electronically, including attachments, upon all Tariff Customers under the EMT, 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. The Midwest ISO further states that the filing has also been posted electronically on the Midwest ISO's Web site at
Take notice that on April 8, 2005, Southern California Edison Company (SCE) submitted for filing an Interconnection Facilities Agreement (Interconnection Agreement), Service Agreement No. 137 under SCE's Wholesale Distribution Access Tariff (WDAT), FERC Electric Tariff, First Revised Volume No. 5, and an associated Service Agreement for Wholesale Distribution Service (WDAT Service Agreement), Service Agreement
SCE states that copies of the filing were served upon the Public Utilities Commission of the State of California and Moreno Valley.
Take notice that on April 8, 2005, Westar Energy, Inc. (Westar) submitted for filing a Notice of Cancellation for Rate Schedule FERC No. 230, an Electric Power Supply Agreement between Westar and the City of Enterprise, Kansas.
Westar states that copies of the filing were served upon the Kansas Corporation Commission and the City of Enterprise, Kansas.
Take notice that on April 11, 2005, Kansas Gas and Electric Company and Westar Energy, Inc. (collectively Westar Energy) submitted for filing a Notice of Cancellation for Rate Schedules FERC Nos. 193, 195, 196, 197 and 198, Generating Municipal Electric Service Agreements between Westar Energy and the City of Burlington, Kansas; City of Mulvane, Kansas; City of Neodesha, Kansas; City of Wellington, Kansas and the City of Winfield, Kansas.
Westar Energy states that copies of the filing were served upon the City of Burlington, Kansas; City of Mulvane, Kansas, City of Neodesha, Kansas, City of Wellington, Kansas; City of Winfield, Kansas and the Kansas Corporation Commission.
Take notice that on April 11, 2005, Pacific Gas and Electric Company (PG&E) tendered for filing a Generator Special Facilities Agreement (GSFA), and Generator Interconnection Agreement (GIA) between PG&E and Diablo Winds, LLC (Diablo Winds) (collectively, Parties). PG&E states that the GSFA permits PG&E to recover the ongoing costs associated with owning, operating and maintaining the Special Facilities for the Parties. PG&E states that the GIA provides terms and conditions for billing, operation, maintenance and metering. PG&E further states that as detailed in the GSFA, PG&E proposes to charge Diablo Winds a monthly Cost-of-Ownership Charge equal to the rate for transmission-level, customer-financed facilities.
PG&E states that copies of this filing have been served upon Diablo Winds, California Independent System Operator Corporation and the California Public Utilities Commission.
Take notice that on April 11, 2005, pursuant to section 35.15, 18 CFR 35.15 (2004), of the Commission's Regulations, Eagle Point Cogeneration Partnership (Eagle Point) filed with the Commission a Notice of Cancellation of market-based rate authority under the applicant's FERC Electric Tariff, Revised Volume No. 1. Eagle Point requests an effective date of April 11, 2005.
Take notice that on April 12, 2005 the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted, pursuant to section 205 of the Federal Power Act, revisions to section 7 (Billing and Payments; Defaults and Remedies) and Attachment L (Credit Policy) of the Midwest ISO's Open Access Transmission and Energy Markets Tariff. The Midwest ISO has requested June 11, 2005 as the effective date for the tariff sheets submitted as part of this filing.
Take notice that on April 12, 2005, UGI Energy Services, Inc. filed a wholesale power sales tariff to sell capacity, energy, and certain ancillary services at market-based rates.
Take notice that on April 12, 2005, ISO New England Inc. (the ISO) and the New England Power Pool (NEPOOL) Participants Committee jointly filed for acceptance amendments (the Amendments) to the ISO Financial Assurance Policy for Market Participants, the ISO Financial Assurance Policy for Non-Market Participant Transmission Customers, and the ISO Financial Assurance Policy for Non-Market Participant FTR Customers and Non-Market Participant Demand Response Providers, which are, respectively, Exhibits 1A, 1B & 1C to Section I of the ISO Transmission, Markets and Services Tariff. A June 1, 2005 effective date for the filed changes is requested. The ISO states that they also filed the Amendments as an update to its prior compliance filing in Docket No. PL05-3-000.
NEPOOL and the ISO state that copies of these materials were sent to the New England state governors and regulatory commissions and all customers under the ISO Transmission, Markets and Services Tariff.
Take notice that on April 12, 2005, Consolidated Edison Company of New York, Inc. (Con Edison) tendered for filing amendments to Con Edison's Delivery Rate Schedule No. 96 (PASNY Tariff) and Economic Development Delivery Service Rate Schedule No. 92 (EDDS Tariff). Con Edison states that the filing proposes to revise the rates, terms, and conditions for delivery services that Con Edison provides under contracts with the New York Power Authority, the County of Westchester Public Utility Service Agency, and the New York City Public Utility Service. Con Edison requests that the proposed amendments be made effective on April 1, 2005.
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
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on March 3, 2005, Sierra Pacific Power Company and Nevada Power Company (collectively, Sierra) submitted a response to recent Commission staff inquiries regarding Sierra's triennial market power study filed October 28, 2004, as supplemented on November 12, 2004.
Take notice that, on April 15, 2005, Somerset Windpower, LLC (Somerset) filed a supplement to its February 28, 2005 filing in Docket Nos. ER01-2139-005 and ER05-661-000.
Somerset states that copies of the filing were served on parties on the official service list for Docket Nos. ER01-2139 and ER05-661 and on the Florida Public Service Commission.
Take notice that on April 14, 2005 the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted its errata filing to its April 6, 2005 filing in Docket Nos. ER04-691-034 and EL04-104-032. The Midwest ISO requests an effective date of April 1, 2005 for the tariff sheets submitted as part of this filing.
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, the Midwest ISO states that the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on April 14, 2005, Georgia Power Company (Georgia Power) resubmitted the Control Area Compact by and among Georgia Power Company, Oglethorpe Power Corporation, and Georgia System Operations Corporation (Control Area Compact), accepted by the Commission's letter order issued January 27, 2005 in the above captioned dockets, to reflect a rate schedule designation and other information in accordance with section 35.9 of the Commission's regulations, 18 CFR 35.9 (2004). Georgia Power Company also submitted a Notice of Termination of the Revised and Restated Coordination Services Agreement Between and Among Georgia Power Company, Oglethorpe Power Corporation, and Georgia System Operations Corporation, which has been supplanted by the Control Area Compact.
Take notice that on April 14, 2005, Saracen Energy LP (Saracen Energy) submitted a compliance filing pursuant to the Commission's March 24, 2005 order in this proceeding, 110 FERC ¶ 61,332 (2005). Saracen Energy states that the compliance filing consists of an amendment to Saracen Energy's Rate Schedule FERC No. 1 to reflect the change-in-status reporting requirement adopted in Order No. 652,
Saracen Energy states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on April 14, 2005, Saracen Energy Power Advisors LP (Saracen Power Advisors) submitted a compliance filing pursuant to the Commission's March 24, 2005 order in this proceeding, 110 FERC ¶ 61,332 (2005). Saracen states that the compliance filing consists of an amendment to Saracen Power Advisors's Rate Schedule FERC No. 1 to reflect the change-in-status reporting requirement adopted in Order No. 652,
Saracen Power Advisors states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that, on April 14, 2005, Saracen Merchant Energy LP (Saracen Merchant) submitted a compliance filing pursuant to the Commission's March 24, 2005 order in this proceeding, 110 FERC ¶ 61,332 (2005). Saracen Merchant states that the
Saracen Merchant states that copies of the filing were served on parties on the official service list in the proceeding.
Take notice that on April 13, 2005, Wabash Valley Power Association, Inc. (Wabash Valley) submitted Wabash Valley Rate Schedule Nos. 33 through 47 and a request for certain waivers of the Commission's regulations.
Wabash Valley states that copies of the filing were served upon Wabash Valley's Members, AES Power, Inc., American Municipal Power-Ohio, Inc., Big Rivers Electric Corporation, Cincinnati Gas and Electric Company, Central Illinois Public Service Company, Indiana Municipal Power Agency, Hoosier Energy Rural Electric Cooperative, Southern Indiana Gas and Electric Company, PSI Energy, Inc., Cinergy Services, Inc., Ontario Power Generation, Inc., Soyland Power Cooperative, Inc., Illinois Municipal Electric Agency, Louisville Gas and Electric Company, Indianapolis Power & Light Company, Northern Indiana Public Service Company, and the State public service commissions in Illinois, Indiana, Michigan and Ohio.
Take notice that on April 13, 2005, PJM Interconnection, L.L.C. (PJM) submitted for filing an executed interconnection service agreement (ISA) among PJM, PSEG Nuclear LLC, Public Service Electric and Gas Company and Atlantic City Electric Company, and a notice of cancellation for an ISA that has been superseded. PJM requests an effective date of March 14, 1005.
PJM states that copies of this filing were served upon the parties to the agreement and the State regulatory commissions within the PJM region.
Take notice that on April 13, 2005, CES Marketing VI, LLC, CES Marketing VII, LLC, CES Marketing VIII, LLC, CES Marketing IX, LLC and CES Marketing X, LLC (Applicants) submitted: (1) proposed rate schedules under which Applicants will make wholesale sales of electric energy, capacity, replacement reserves, and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights; (2) requests for the grant of certain blanket approvals; (3) and requests for the grant of certain waivers.
Take notice that on April 14, 2005, Pastoria Energy Facility, L.L.C. (Pastoria) submitted: (1) Notification of a change in the name of the company from Pastoria Energy Center, LLC to Pastoria Energy Facility, L.L.C.; and (2) a revised market-based rate tariff to provide the correct name of the company and to incorporate the reporting requirements adopted by the Commission in Order No. 652,
Pastoria states that a copy of this filing has been mailed to each person designated on the official service list compiled by the Secretary of this proceeding.
Take notice that on April 14, 2005, Florida Power & Light Company (FPL) tendered for filing a Notice of Cancellation of Service Agreement No. 196, an Interconnection & Operation Agreement between FPL and Blue Heron Energy Center, LLC (Blue Heron). FPL states that the Cancellation of Service Agreement No. 196 has been mutually agreed to by FPL and Blue Heron. FPL requests that the cancellation be made effective March 21, 2005.
FPL states that a copy of the filing was served upon Blue Heron.
Take notice that on April 14, 2004, American Electric Power Service Corporation (AEPSC), tendered for filing a Interconnection and Local Delivery Service Agreement (ILDSA) for Wabash Valley Power Association, Inc. (Wabash Valley) of the Indianapolis, Indiana, and a Facilities Agreement, as an attachment to the ILDSA, for the establishment of a new Delivery Point (the Huntertown Delivery Point) between Wabash Valley and AEP. The ILDSA is being designated and filed as Service Agreement No. 1262 under the PJM Interconnection, LLC (PJM's) FERC Open Access Transmission Tariff Sixth Revised Volume No. 1, pursuant to FERC Order dated February 25, 2005 under Docket Nos. ER04-1003-002
AEPSC states that a copy of the filing was served upon Wabash Valley and the Public Service Commissions affected by the filing.
Take notice that on April 15, 2005, Midwest Independent Transmission System Operator, Inc., (Midwest ISO) pursuant to section 205 of the Federal Power Act and section 35.13 of the Commission's regulations, 18 CFR 35.13 (2002), submitted for filing revisions to Exhibit A and Exhibit B of the Network Integration Transmission Service Agreement under the Midwest ISO's Open Access Transmission Tariff, FERC Electric Tariff, Second Revised Volume No. 1, between the City of St. Louis, Michigan and the Midwest ISO.
Midwest ISO states that a copy of this filing has been served on all parties on the official service list compiled by the Secretary in this proceeding.
Take notice that on April 15, 2005, Consolidated Edison Company of New
Take notice that on April 15, 2005, Northeast Utilities Service Company (NUSCO), on behalf of its operating company affiliates, The Connecticut Light and Power Company (CL&P), Western Massachusetts Electric Company (WMECO), Holyoke Water Power Company (HWP), Holyoke Power and Electric Company (HP&E), and Public Service Company of New Hampshire (PSNH), submitted a Notice of Cancellation of the Memorandum of Understanding—Pooling of Generation and Transmission (NUG&T) between CL&P, WMECO, HWP, and HP&E; Notice of Cancellation of the Sharing Agreement between PSNH and CL&P; and Notice of Cancellation of the Capacity Transfer Agreements between CL&P and PSNH.
NUSCO states that copies of the filing were served upon the NUSCO's jurisdictional customers, Connecticut Department of Public Utility Control, New Hampshire Public Utilities Commission, and Massachusetts Department of Telecommunications and Energy.
Take notice that April 15, 2005, Northwestern Wisconsin Electric Company, (NWEC) tendered for filing proposed changes in its Transmission Use Charge, Rate Schedule FERC No. 2. NWEC states that the proposed changes would increase revenues from jurisdictional sales by $4,409.20 based on the 12-month period ending April 30, 2005. NWEC also states that it is proposing this rate schedule change to more accurately reflect the actual cost of transmitting energy from one utility to another based on current cost data. NWEC further states that the service agreement for which this rate is calculated calls for the Transmission Use Charge to be reviewed annually and revised on May 1. NWEC requests an effective date of May 1, 2005.
NWEC states that copies of this filing have been provided to the respective parties and to the Public Service Commission of Wisconsin.
Take notice that on April 15, 2005, American Transmission Company LLC (ATCLLC) tendered for filing a Distribution-Transmission Interconnection Agreement between ATCLLC and Lodi Utilities. ATCLLC requests an effective date of March 31, 2005.
ATCLLC states that it has served a copy of this filing on Lodi Utilities, the Midwest ISO, and the Public Service Commission of Wisconsin.
Take notice that on April 15, 2005, Xcel Energy Services Inc., on behalf of Public Service Company of Colorado (PSCo), submitted an Amended and Restated Generation Interconnection Agreement between Ridge Crest Wind Partners, LLC and PSCo.
Take notice that on April 13, 2005, East Texas Electric Cooperative, Inc. (ETEC) submitted for filing a withdrawal of its filed rates, effective upon ETEC's April 13, 2005 receipt of Rural Utilities Service guaranteed loan funds, ETEC will no longer meet the definition of a “public utility” pursuant to section 201 of the Federal Power Act, 16 U.S.C. 824 and thus will not be subject to regulation by the Commission for so long as ETEC has RUS loan funds outstanding.
ETEC states that it has provided its three constituent members with a copy of this filing.
Take notice that on April 13, 2005, American Transmission Company LLC (ATCLLC) tendered for filing an Amended and Restated Generation-Transmission Interconnection Agreement among American Transmission Company LLC, Wisconsin Electric Power Company, and the Midwest Independent Transmission System Operator, Inc., (for the Elm Road Generating Facility) Docket No. ER02-548-001. ATCLLC requests an effective date of April 16, 2005.
Take notice that on April 14, 2005, American Transmission Company LLC (ATCLLC) tendered for filing an Amended and Restated Generation-Transmission Interconnection Agreement among American Transmission Company LLC, Wisconsin Electric Power Company, and the Midwest Independent Transmission System Operator, Inc., (for Port Washington Generating Facility) Docket No. ER02-548-001. ATCLLC requests an effective date of April 17, 2005.
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 following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on April 15, 2005, PPL Montana, LLC; PPL Colstrip I, LLC; and PPL Colstrip II, LLC (collectively the PPL MT Parties) submitted a compliance filing pursuant to the Commission's deficiency letter issued on March 25, 2005, in Docket Nos. ER99-3491-002,
The PPL MT Parties state that copies of the filing were served on parties on the official service list in Docket Nos. ER99-3491-003, ER00-2184-001 and ER00-2185-001.
Take notice that on April 13, 2005, Promet Energy Partners LLC, (Promet) submitted for filing a revised Rate Schedule FERC No. 1, Sheet No. 1. Promet states that this revision was necessary in order to comply with Order No. 652, 110 FERC ¶ 61,097, (2005), which requires change in status reporting requirement be incorporated in the market-based rate tariff of each entity authorized to make sales at market-based rates.
Take notice that on April 15, 2005, Mitchell Electric Membership Corporation submitted a compliance filing pursuant to the Commission's order issued March 25, 2005, Mitchell Electric Membership Corporation, 110 FERC ¶ 61,350 (2005).
Take notice that on April 14, 2005, Wisconsin River Power Company (Wisconsin River) filed revised tariff sheets and information regarding interlocking directorates in compliance with the Commission's Letter Order issued March 25, 2005 (110 FERC ¶ 61,342).
Take notice that on April 19, 2005, Tuscon Electric Power Company (Tucson Electric) and UNS Electric, Inc. filed substitute revised tariff sheets to its February 18, 2005 filing in Docket Nos. ER05-610-000 and 001 in compliance with
Take notice that on April 15, 2005, KRK Energy submitted an amendment to its March 17, 2005 filing in Docket No. ER05-713-001.
Take notice that on April 15, 2005, Cokinos Power Trading Company, submitted for filing a Notice of Cancellation of its market-based rate authority approved by the Commission's order issued May 14, 2002 in Docket No. ER02-1365-000.
Take notice that on April 18, 2005, New England Power Company (NEP) submitted two local service agreements for local network service with Bear Swamp Power Co., LLC (Bear Swamp Power), under ISO New England Inc.'s Transmission, Markets and Services Tariff (ISO New England Inc., FERC Electric Tariff No. 3).
NEP states that a copy of this filing has been served upon Bear Swamp Power, ISO New England Inc., and regulators in the Commonwealth of Massachusetts.
Take notice that on April 18, 2005, American Electric Power Service Corporation (AEP), on behalf of its affiliate Public Service Company of Oklahoma, submitted for filing a letter agreement that provides for AEP to begin engineering, equipment procurement and construction work on the network upgrades required on the AEP transmission system as a result of interconnecting the wind power project being developed by Blue Canyon Windpower II, LLC to the Western Farmers Electric Cooperative transmission system. AEP requests an effective date of April 4, 2005.
AEP states that a copy of the filing was served upon Blue Canyon Windpower II, LLC.
Take notice that on April 15, 2005, the American Electric Power Service Corporation, on behalf of its affiliate Ohio Power Company (AEP) tendered for filing pursuant to section 35.15 of the Commission's regulations, 18 CFR section 35.15, a notice of termination of an amended interconnection and operation agreement between Ohio Power Company and Lima Energy Company, LLC. designated as Service Agreement No. 463 under American Electric Power Operating Companies' open access transmission tariff. AEP requests an effective date of April 15 2005.
AEP states that a copy of the filing was served upon Lima Energy
Take notice that on April 18, 2005, the California Independent System Operator Corporation (ISO), tendered for filing an amendment (Amendment No. 5) to revise the metered subsystem agreement between the ISO and Silicon Valley Power (SVP) for acceptance by the Commission. The ISO states that the purpose of Amendment No. 5 is to add information regarding metering at the proposed new SVP Switching Station. The ISO requests privileged treatment, pursuant to 18 CFR 388.112, with regard to portions of the filing of Amendment No. 5. The ISO requests an effective date of April 19, 2005.
The ISO states that the non-privileged elements of this filing have been served on SVP, the California Public Utilities Commission, and all entities on the official service lists for Docket Nos. ER02-2321-000, ER04-185-000, ER04-940-000, ER05-81-000, ER05-449-000.
Take notice that on April 8, 2005, Oregon Trail Electric Consumers Cooperative, Inc. (Oregon Trail) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to: (1) make long-term borrowings under a loan agreement with the National Rural Utilities Cooperative Finance Corporation (CFC) in an amount not to exceed $10 million; and (2) make no more than $5 million of short-term borrowings under a line of credit with CFC.
Oregon Trail also requests a waiver of the Commission's competitive bidding and negotiated placement requirements at 18 CFR 34.2.
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
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Energy Regulatory Commission's (Commission) regulations (18 CFR part 380), Commission staff have reviewed an application for amendment of license for the Rocky Mountain Pumped Storage Project, filed January 24, 2005, to increase the project's authorized generating capacity. The project is located on Heath Creek, near the City of Rome, in Floyd County, Georgia.
The project licensees, Oglethorpe Power Corporation and Georgia Power Company, propose to increase the project's generating capacity through replacing the project's existing pump-turbine runners and possibly modifying the pump-turbine, motor-generator, and auxiliary equipment components. These changes would increase the project's maximum hydraulic capacity at peak generation by 20 to 25 percent, and increase the firm peak generating capacity by 202 megawatts.
In the environmental assessment (EA), Commission staff has analyzed the probable environmental effects of the proposed work and has concluded that approval, with appropriate environmental measures, would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the EA is attached to a Commission order titled “Order Amending License,” which was issued April 20, 2005, and is available for review at the Commission's Public Reference Room. A copy of the EA may also be viewed on the Commission's Web site at
Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. Any questions, please contact the Secretary's Office. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the docket number (DI05-2-000) on any comments, protests, or motions filed.
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When a Declaration of Intention is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “PROTESTS”, AND/OR “MOTIONS TO INTERVENE”, as applicable, and the Docket Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the Project Number on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all interveners filing a document with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities
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k. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
m. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
n. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
o. Agency Comments—Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. 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. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
q. Comments, protests and interventions may be filed electronically
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Scoping comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application is not ready for environmental analysis at this time.
l. The existing project structures consist of the Santee Dam (also known as the Wilson Dam) on the Santee River, the Pinopolis Dam on the Cooper River, the Diversion Canal, the Santee Spillway Hydroelectric Station, and the Jefferies (formerly known as Pinopolis) Hydroelectric Station. The project includes an estimated 179,990 acres of land and water resources. The project has two major impoundments—Lake Marion and Lake Moultrie—that are connected by the Diversion Canal. Lake Marion is up to 40 miles long and has a normal pool elevation of 75.0 feet. Lake Moultrie is about 10 miles long and has a normal pool elevation typically from 0.2 to 1.0 foot lower than Lake Marion. The two impoundments have a combined area of approximately 160,000 acres. The combined usable storage capacity of the two impoundments is approximately 529,000 acre-feet. The total installed capacity is 134.52 MW. The SCPSA operates the Santee Spillway and Jefferies Stations and the U.S. Army Corps of Engineers' (Corps) St. Stephen Station, which is not a part of the Commission-licensed Santee Cooper Project.
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. Scoping Process
The Commission intends to prepare an Environmental assessment (EA) on the project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action.
FERC staff will conduct one agency scoping meeting and two public meetings. The agency scoping meeting will focus on resource agency and non-governmental organization (NGO) concerns, while the public scoping meeting is primarily for public input. All interested individuals, organizations, and agencies are invited to attend one or both of the meetings, and to assist the staff in identifying the scope of the environmental issues that should be analyzed in the EA. The times and locations of these meetings are as follows:
Copies of the Scoping Document (SD1) outlining the subject areas to be addressed in the EIS were distributed to the parties on the Commission's mailing list. Copies of the SD1 will be available at the scoping meeting or may be viewed on the Web at
The Applicant and FERC staff will conduct a project site visit beginning at 9 a.m. on May 17 and 18, 2005. All interested individuals, organizations, and agencies are invited to attend. All participants should meet at the Jefferies Hydroelectric Station at 9 a.m. on May 17, 2005 and at Wilson Landing near the Santee Dam spillway at 9 a.m. on May 18, 2005. All participants are responsible for their own transportation to the site. Anyone with questions about the site visit should contact Mr. John Dulude of SCPSA at (843) 761-4046.
Commission staff will hold a technical conference to discuss the issue
At the scoping meetings, the staff will: (1) Summarize the environmental issues tentatively identified for analysis in the EA; (2) solicit from the meeting participants all available information, especially quantifiable data, on the resources at issue; (3) encourage statements from experts and the public on issues that should be analyzed in the EA, including viewpoints in opposition to, or in support of, the staff's preliminary views; (4) determine the resource issues to be addressed in the EA; and (5) identify those issues that require a detailed analysis, as well as those issues that do not require a detailed analysis.
The meetings are recorded by a stenographer and become part of the formal record of the Commission proceeding on the project.
Individuals, organizations, and agencies with environmental expertise and concerns are encouraged to attend the meeting and to assist the staff in defining and clarifying the issues to be addressed in the EA.
Take notice that the following hydroelectric application and applicant-prepared environmental assessment have been filed with the Commission and are available for public inspection.
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j. Deadline for filing motions to intervene and protests, comments, and terms and conditions 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.
Motions to intervene and protests, comments, and terms and conditions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing.
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The applicant would increase the project's generating capacity to 3,650 kW by installing a second, 500-kW vertical turbine/generator. The new unit would be located adjacent to the existing powerhouse inside the river outlet works structure and would discharge into the same tailrace as the existing turbine via a weir box. The new unit would use water being released from the reservoir for other purposes, and operation of the dam would not be changed to increase power production.
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
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) Bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “COMMENTS,” “REPLY COMMENTS,” or “TERMS AND CONDITIONS;” (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
You may also register online at
Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Ms. Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please include the project number (P-2503-089) on any comments or motions filed. Comments, protests, and interventions may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages e-filings.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, State, and local agencies are invited to file comments on the described applications. A copy of the applications may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. 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. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure 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 encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application is not ready for environmental analysis at this time.
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The Norway development includes the following constructed facilities: (1) A 915-foot-long dam consisting of (a) a 410-foot-long, 34-foot-maximum-height earth fill embankment with a concrete core wall; (b) a 225-foot-long, 29-foot-high concrete gravity overflow spillway with flashboards; (c) a 120-foot-long, 30-foot-high concrete gated spillway with three 30-foot-wide, 22-foot-high spillway gates; (d) an 18-foot-wide, 30-foot-high trash sluice housing with one 8-foot-wide, 11-foot-high gate; and (e) a 142-foot-long, 64-foot-wide powerhouse integral with the dam containing four vertical Francis turbine-generating units with a rated head of 28 feet, total hydraulic capacity of 3,675 cubic feet per second (cfs), and a total electric output of 7.2 MW; (2) a 10-mile-long, 10-foot average depth, 1,291-acre reservoir; (3) a 2-mile-long, 69,000-volt transmission line; and (4) appurtenant facilities.
The Oakdale development includes the following constructed facilities: (1) A 1,688-foot-long dam consisting of (a) a 126-foot-long, 58-foot maximum-height east concrete buttress and slab dam connecting the left abutment to the powerhouse; (b) a 114-foot-long, 70-foot-wide powerhouse integral with the dam containing three vertical Francis turbine-generating units with a rated head of 42 to 48 feet, total hydraulic capacity of 3,200 cfs and a total electric output of 9.2 MW; (c) an 18-foot-wide structure containing a nonfunctional fish ladder and a gated trash sluice; (d) an 84-foot-long ogee-shaped concrete gated spillway with two 30-foot-wide, 22-foot-high vertical lift gates; (e) a 90-foot-long, six bay concrete gravity siphon-type auxiliary spillway; and (f) a 1,260-foot-long, west earth embankment with a maximum height of 58 feet and a 30-foot-wide crest; (2) a 10-mile-long, 16-foot-average depth, 1,547-acre reservoir; and (3) appurtenant facilities.
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.
Commission staff will conduct two public scoping meetings in the project area to solicit comments and viewpoints the public may wish to offer concerning project effects associated with the Norway and Oakdale developments. The evening meeting will focus on input from the public, and the morning meeting will focus on resource agency concerns. We invite all interested agencies, nongovernmental organizations, Native American tribes, and individuals to attend one or both of the meetings to help us identify the scope of environmental issues to be analyzed in the EA. The times and locations of these meetings are as follows:
Copies of the Scoping Document (SD1) outlining the subject areas to be addressed in the EA will be available at the scoping meetings or may be viewed on the Commission's Web site at
Individuals, organizations, resource agencies, and Indian tribes with environmental expertise and concerns are encouraged to attend the meetings and to assist Commission staff in defining and clarifying the issues to be addressed in the EA.
The Federal Energy Regulatory Commission (Commission) hereby gives notice that on April 21, 22 and 29, 2005, members of its staff will attend workshops on Resource Adequacy hosted by the California Public Utilities Commission (CPUC). The workshops will take place in Commission Courtroom A of the CPUC, located at 505 Van Ness Avenue, San Francisco, CA 94102.
Sponsored by the CPUC, the meeting is open to the public, and staff's attendance is part of the Commission's ongoing outreach efforts. The meeting may discuss matters at issue in Docket No. ER02-1656-000.
Environmental Protection Agency (EPA).
Notice regarding within-the-scope determination.
The California Air Resources Board (CARB) requested that EPA confirm CARB's finding that two sets of
Any objections to the findings in this notice regarding EPA's determination that California's amendments are within-the-scope of a previous waiver must be filed by May 31, 2005. Otherwise, at the end of this 30-day period, these findings will become final. Upon receipt of any timely objection, EPA will consider scheduling a public hearing to reconsider these findings in a subsequent
Any objections to the within-the-scope findings in this notice should be filed with David Dickinson at the address noted below. The Agency's Decision Document, containing an explanation of the Assistant Administrator's decision, as well as all documents relied upon in making that decision, including those submitted to EPA by CARB, are contained in the public docket. The official public docket is the collection of materials that is available for public viewing. The EPA Docket Center Public Reading Room is open from 8:30 to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1743. The reference number for this docket is OAR-2004-0057. The location of the Docket Center is the Environmental Protection Agency, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. Copies of the Decision Document for this determination can also be obtained by contacting David Dickinson as noted below, or can be accessed on the EPA's Office of Transportation and Air Quality Web site, also noted below.
David Dickinson, Attorney-Advisor, Certification and Compliance Division, (6405J), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Telephone: (202) 343-9256, Fax: (202) 343-2804, E-Mail:
Electronic copies of this Notice and the accompanying Decision Document are available via the Internet on the Office of Transportation and Air Quality (OTAQ) Web site (
Please note that due to differences between the software used to develop the documents and the software into which the documents may be downloaded, changes in format, page length, etc. may occur.
I have determined that these amendments to the CARB's LEV II regulation are within-the-scope of a prior waiver issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to CARB.
In an April 12, 2004 letter to EPA, CARB notified EPA of the above-described amendments to its LEV II regulations and asked EPA to confirm that these amendments are within-the-scope of EPA's previous waiver for the LEV II regulation. EPA can make such a confirmation if certain conditions are present. Specifically, if California acts to amend a previously waived standard or accompanying enforcement procedure, the amendment may be considered within-the-scope of a previously granted waiver provided that it does not undermine California's determination that its standards in the aggregate are as protective of public health and welfare as applicable Federal standards, does not affect the consistency with section 202(a) of the Act, and raises no new issues affecting EPA's previous authorization determination.
In its request letter, CARB stated that the amendments will not cause the California standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards. Regarding consistency with
EPA's analysis confirms CARB's finding that the criteria for these amendments meeting a within-the-scope designation have been met. Thus, EPA finds that these amendments are within-the-scope of a previous waiver. A full explanation of EPA's decision is contained in a Decision Document which may be obtained from EPA as noted above.
I have determined that the third set of amendments to the CARB's LEV II regulation are within-the-scope of a prior waiver issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to CARB.
In an April 12, 2004 letter to EPA, CARB notified EPA of the above-described amendments to its LEV II regulations and asked EPA to confirm that these amendments are within-the-scope of a previous waiver.
In its request letter, CARB stated that the amendments will not cause the California standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards. Regarding consistency with section 202(a), CARB stated that the amendments do not raise any concerns of inadequate leadtime or technological feasibility or impose any inconsistent certification requirements (compared to the Federal requirements). Finally, CARB stated that the amendments raise no new issues affecting the prior EPA waiver determination.
EPA's analysis confirms CARB's finding that the criteria for these amendments meeting a within-the-scope designation have been met. Thus, EPA finds that these amendments are within-the-scope of previous authorizations. A full explanation of EPA's decision is contained in a Decision Document which may be obtained from EPA as noted above.
Because these amendments are within the scope of a previous waiver, a public hearing to consider them is not necessary. However, if any party asserts an objection to these findings by May 31, 2005, EPA will consider holding a public hearing to provide interested parties an opportunity to present testimony and evidence to show that there are issues to be addressed through a section 209(b) waiver proceeding and that EPA should reconsider its findings. Otherwise, these findings will become final on May 31, 2005.
My decision will affect not only persons in California but also the manufacturers outside the State who must comply with California's requirements in order to produce vehicles for sale in California. For this reason, I hereby determine and find that this is a final action of national applicability.
Under section 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by June 27, 2005. Under section 307(b)(2) of the Act, judicial review of this final action may not be obtained in subsequent enforcement proceedings.
EPA's determination that these California regulations are within-the-scope of a prior waiver determination by EPA does not constitute a significant regulatory action under the terms of Executive Order 12866 and this action is therefore not subject to Office of Management and Budget review.
In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility analysis addressing the impact of this action on small business entities.
The Congressional Review Act, 5 U.S.C. 801
Finally, the Administrator has delegated the authority to make determinations regarding waivers under section 209(b) of the Act to the Assistant Administrator for Air and Radiation.
Environmental Protection Agency (EPA).
Notice.
The Office of Pesticide Programs (OPP), in coordination with the EPA regional offices, is soliciting pesticide and special project proposals from eligible Tribes, Alaska native villages, and intertribal consortia for fiscal year (FY) 2005 funding. Under this program, cooperative agreement awards will provide financial assistance to eligible Tribal governments, Alaska native village governments, or intertribal consortia to carry out projects that assess or reduce risks to human health and the environment from pesticide exposure. The total amount of funding available for award in FY 2005 is expected to be approximately $445,000, with a maximum funding level of $50,000 per project.
Proposals must be received by EPA on or before 5 p.m. eastern standard time, June 13, 2005.
Proposals may be submitted to your EPA regional office by mail. An electronic copy of the proposal is also required and may be sent via e-mail to the regional contact. Please follow the detailed instructions provided in Unit V.1. of the
Georgia McDuffie, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 605-0195; e-mail address:
The following listing provides certain key information concerning this funding opportunity.
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EPA expects to enter into grants and cooperative agreements under the authority provided in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Section 20 of FIFRA authorizes the Agency to issue grants or cooperative agreements for research, public education, training, monitoring, demonstration, and studies.
The award and administration of these grants will be governed by the Uniform Administrative Requirements for Grants and Cooperative Agreements to states, Tribes, and local governments set forth at 40 CFR part 31. Grants awarded pursuant to this solicitation are program grants subject to the regulations for “Environmental Program Grants for Tribes” set forth at 40 CFR 35.500-35.518. In addition, the provisions in 40 CFR part 32, governing government wide debarment and suspension, and the provisions in 40 CFR part 40, regarding restrictions on lobbying, apply.
All costs incurred under this program must be allowable under the applicable OMB Cost Circular A-87. Copies of this circular can be found at
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Funds may be used to support new activities that fit the requirements of this solicitation. Projects may be targeted to any pesticide-related concern or need facing a Tribe or intertribal consortium. Although the proposal may request funding for activities that will further long-term objectives, this program provides one-time funding, and the maximum period of performance for funded activities is expected to be approximately 12 months.
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(i) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running throughout the reservation;
(ii) All dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of the State; and
(iii) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
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i. Linkage to EPA Strategic Plan/GPRA Architecture. These assistance agreements will support progress towards EPA Strategic Plan Goal 4--Healthy Communities and Ecosystems; Objective 4.1--Chemical, Organism and Pesticide Risk; Program/Project 09--Categorical Grants: Pesticides Program Implementation (STAG).
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Each year since 1997, EPA's Office of Pesticide Programs, in coordination with the EPA regional offices, has awarded approximately $445,000 annually to eligible Tribes and intertribal consortia for projects supporting pesticide management and water quality goals.
This
Funding for each award recipient will be in the form of a cooperative agreement for $50,000 or less, under FIFRA section 20 and section 23(a)(1). Total funding available for award is expected to be approximately $445,000.
Should additional funding become available for award, the Agency may make additional monies available, based on this solicitation and in accordance with the final selection process, without further notice of competition. The Agency also reserves the right to decrease available funding for this program, or to make no awards based on this solicitation. All costs charged to these awards must be allowable under the applicable OMB Cost Circular, A-87 which may be found at
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• Be an applicant who is eligible to receive funding under this announcement, including federally recognized Tribal governments,
• The proposal must meet all format and content requirements contained in this Notice.
• The proposal submittal must comply with the directions for submittal contained in this Notice.
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i. Projects must be targeted to a pesticide concern or need facing a Tribe or intertribal consortium, including, but not limited to:
• Water quality.
• Development/support of exposure and risk assessment capacity.
• Traditional Tribal lifeways/subsistence. Effects of pesticides on cultural activities.
• Assessment of the need for and/or development of a pesticide management policy or plan.
• Consideration of integrated pest management, reduced pesticide use, or alternatives to pesticides.
• Sampling.
• Concerns associated with the return of culturally and spiritually significant items that may have been exposed to pesticides as part of historical preservation efforts by museums or other collectors.
• Noxious weed education materials and/or control alternatives.
• Public outreach/education materials relating to pest management and/or pesticide safety.
In addition, eligible proposals may be focused on the monitoring of surface water or ground water (e.g., assessing dietary exposure to pesticides via drinking water, determining those water bodies that may be impaired by pesticides, predicting potential exposure to endangered or threatened aquatic species, or establishing a baseline of contamination from which to measure progress toward future improvement in the environment).
Water quality projects may involve: (1) Information gathering; (2) baseline development including vulnerability assessment, identifying pesticides (from either on or off reservation sources) that are most likely to impact water quality; (3) providing information to pesticide users on ways they can assist in protecting the quality of water sources; (4) developing other measures that protect water from pesticides; or (5) developing projects aimed at preventing contamination of water sources, mitigating contaminated water sources or developing best management practices.
Other projects, not necessarily linked to water quality issues, may include: (1) Training on the establishment of Tribal pesticide codes; (2) creating and implementing a system for the proper disposal of pesticides, and/or; (3) educational outreach to the community on pesticide controls. Sampling projects may include soil sampling, residue sampling on culturally significant/medicinal plants, or sampling to determine the effects of pesticides on cultural activities, such as subsistence hunting and fishing.
Water quality and non-water quality pesticide-related projects are equally eligible for funding under this grant program. Reviewers will give additional consideration to proposals that recognize and build upon existing, publicly available, technical and educational information.
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EPA regional Tribal pesticide contacts are as follows:
EPA Region I (Connecticut, Maine, New Hampshire, Rhode Island, Vermont). Rob Koethe, EPA Region I, One Congress St., Suite 1100, (CPT), Boston, MA 02114-2023, telephone: (617) 918-1535, fax: (617) 918-1505, e-mail:
EPA Region II (New Jersey, New York, Puerto Rico, Virgin Islands). Tracy Truesdale, EPA Region II, U.S. EPA Facilities, Raritan Depot (MS500), 2890 Woodbridge Ave., Edison, NJ 08837-3679, telephone: (732) 906-6894, fax: (732) 321-6771, e-mail:
EPA Region III (Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia). Fatima El Abdaoui, EPA Region III, Chestnut Building (3AT11), Philadelphia, PA 19107, telephone: (215) 814-2129, fax: (215) 814-3114, e-mail:
EPA Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee). Randy Dominy, EPA Region IV, 61 Forsyth St., SW., Atlanta, GA 30303, telephone: (404) 562-8996, fax: (404) 562-8973, e-mail:
EPA Region V (Illinois, Indiana, Michigan, Minnesota, Wisconsin). Meonii Crenshaw, EPA Region V, 77 West Jackson Boulevard (DT-8J), Chicago, IL 60604-3507, telephone: (312) 353-4716, fax: (312) 353-4788, e-mail:
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas). Jerry Collins, EPA Region VI, 1445 Ross Avenue, (6PD-P), Dallas, TX 75202-2733, telephone: (214) 665-7562, fax: (214) 665-7263, e-mail:
EPA Region VII (Iowa, Kansas, Missouri, Nebraska). John Tice, EPA Region VII, 100 Centennial Mall N., Room 289, Lincoln, NE 68508, telephone: (402) 437-5080, fax: (402) 323-9079, e-mail:
EPA Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming). Margaret Collins, EPA Region VIII, 999 18th St., (8P-P3T), Denver, CO 80202-2466, telephone: (303) 312-6023, fax: (303) 312-6044, e-mail:
EPA Region IX (Arizona, California, Hawaii, Nevada, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam). Marcy Katzin, EPA Region IX, 75 Hawthorne St., (CMD 5), San Francisco, CA 94105, telephone: (415) 947-4215, fax: (415) 947-3583, e-mail:
EPA Region X (Alaska, Idaho, Oregon, Washington). Theresa Pimentel, EPA Region X, 1200 Sixth Avenue, (OCE-084), Seattle, WA 98101, telephone: (206) 553-0257, fax: (206) 553-1775, e-mail:
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Your application package must include the following:
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-- Description/list of deliverables.
-- The separate phases of the project.
-- The tasks associated with each phase of the project.
-- The time frames for completion of each phase or task.
The name, title of the person(s) who will conduct each phase or task. The dates when progress reports will be provided to EPA, clearly showing deliverables, accomplishments, delays and/or obstacles. (Project costs cannot be incurred until a final work plan has been approved by the appropriate EPA regional office.)
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Applicants must submit information, as specified in this solicitation, to address award criteria. Applicants must also provide information specified in this solicitation that will assist EPA in assessing the Tribe's capacity to do the work outlined in the project proposal. The proposed work plan and budget should reflect activities that can realistically be completed during the period of performance of the cooperative agreement. Criteria that will be used to review, rank, and award funding are found below.
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• What was the project?
• When was the award made, and for what dollar amount?
• What successes or barriers were encountered as the project moved forward?
• What outputs from previously funded OPP projects continue to provide benefits to the Tribe (e.g., retention of trained personnel, continued use of purchased equipment, accretion of baseline, sampling and analysis data)?
Information on projects previously funded by this OPP Tribal grant program may be provided in several ways: You may include descriptive language either in the narrative of the current proposal or as an appendix to the current proposal, or you may include a copy of the previous project's final report as an appendix to this proposal. The name of the EPA Project Officer for any projects previously funded under this grant program should also be included. If the applicant has never received funding under this grant program, that should be clearly noted in the proposal. Failure to address this information request may render your proposal non-responsive to this solicitation. If you have questions about this requirement, please contact your EPA region, or the person listed under
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• Does the person(s) designated to lead the project have the technical expertise he or she will need to successfully complete it? Does the project leader have experience in grant and project management?
• Proposals should provide complete information on the education, skills, training and relevant experience of the project leader. As appropriate, please cite technical qualifications and specific examples of prior, relevant experience. If this project will develop new Tribal capacity, describe how the project leader and/or staff will gain necessary training and expertise.
• To whom does the project leader report? What systems of accountability and management oversight are in place to ensure that this project stays on track?
• If previously performed work directly impacts this project, briefly describe the connection. If a directly relevant project is currently ongoing, what progress has been made? If this new project builds upon earlier efforts, how will the Tribe use the knowledge, data, and experience derived from previous projects to shape this new proposed activity?
• If appropriate, reviewers will give additional consideration to proposals that recognize and build upon existing, publicly available, technical and educational information.
To provide reviewers with context for your proposed project, and to assist them in gaining the clearest possible sense of the positive impact of this project on your Tribe and the environment, please briefly provide some information about your reservation:
• Specify the location, size, geography, and general climate of the reservation.
• About how many residents are Tribal members and how many are not Tribal members?
• How much of the reservation is under cultivation where pesticides are used?
• Does the reservation include wetlands or other natural resource preserves?
• If there is relevance to your project, briefly describe the Tribal and non-Tribal populations of surrounding counties/states, and surrounding land use.
• How many people (tribal/non-Tribal) are employed by the Tribal government (e.g., in government services, including environmental monitoring or management, health care, police and fire protection)?
• How many are employed on the reservation in other areas that use pesticides or may be impacted by their use (e.g., agriculture, animal husbandry, fisheries/fishing, forestry, construction, casinos/resorts/golf course maintenance, etc.)?
• If you are concerned about pesticide pollution that may originate within reservation boundaries, what are the potential sources and what chemicals might be involved?
• If you are concerned with pollution migration from off-reservation sources, what are those potential sources, and what chemicals are of specific concern?
• Is the Tribe concerned about water quality issues? If so, please describe the nature of these concerns.
• Does the Tribe currently have any pesticide policy or pesticide management program in place? If not is it seeking to establish a code?
• Why is this project important to the Tribe or the Tribal consortium? What environmental issues(s) will it address and how serious and/or pervasive are these issues? What is the expected outcome of the project? What benefits will this project bring to the Tribe in terms of human and environmental health?
• Has the tribe identified a need to coordinate or consult with other parties (Tribal and/or non-Tribal) to ensure the success of this project? If so, who are they and what is your plan to involve them? How will they be affected by the outcome of the project?
• What are the key outputs of this project? How do you propose to quantify and measure progress? Have interim milestones for this project been established? If so, what are they? How will you evaluate the success of the project in terms of measurable environmental results?
• Does your budget request accurately reflect the work you propose? Please provide a clear correlation between expenses and project objectives. Will EPA funding for this project be supplemented with funding from other source(s)? If so, please identify them.
• Please describe the steps you will take to ensure successful completion of the project. Provide a time-line and description of interim and final results and deliverables.
Discuss if the results from this project will continue to provide benefits to the Tribe or other Tribes after the period of performance has expired and this funding is no longer available.
• How are the benefits of this effort expected to be sustained over time?
• Can the project results be incorporated into existing and/or future pesticide-related Tribal environmental activities?
• Are any of the deliverables, experiences, products, or outcomes resulting from the project transferable to other communities? Might this project readily be implemented by another Tribe?
• What ecological or human health benefits does this project provide? What quality of life issues does the project address?
• Does the project have limited or broad application to address risks related to pesticides?
• Does the applicant recognize a need for coordination between Tribal agencies and outside communities, and/or Federal, State or local agencies?
• Will the project help build Tribal infrastructure and capacity? How?
The proposals will be scored based on how well they are supported by a clearly articulated set of performance and progress measures. Reviewers will evaluate the workplan in relation to its likelihood to achieve predicted environmental results, including the likelihood of attaining expected outcomes, reaching project goals, and producing on-the-ground, quantifiable environmental change. A description of expected outcomes must be included. Reviewer consideration included:
• What is the environmental improvement that is expected to result from the project?
• Does the applicant adequately show how the project will be evaluated?
• Has the applicant developed criteria by which the project will be judged and whether or not it will be considered a success?
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For additional information contact: Georgia McDuffie, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6463; fax number: (703) 308-1850; e-mail address:
Potentially affected entities include federally recognized Tribal governments, federally recognized Alaska native village governments, or qualified intertribal consortia. Only one project proposal from each Tribal government or intertribal consortium will be considered for funding. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
Grant solicitations containing binding legal requirements are considered rules for the purpose of the Congressional Review Act (CRA) (5 U.S.C. 801
Environmental protection, Grants, Pesticides, Training.
Federal Communications Commission.
Notice.
The Wireless Telecommunications Bureau and Media Bureau set forth a revised list of construction permits for certain low power television (“LPTV”), television translator and Class A television broadcast stations available for auction in Auction No. 81.
Applicants seeking designation as a noncommercial educational (“NCE”) station applicant must submit specified information to the Commission no later than May 13, 2005.
This is a summary of the
1. Applications for construction permits for noncommercial educational broadcast stations (“NCE stations”) are exempt from competitive bidding by 47 U.S.C. 309(j)(2)(C). For purposes of Auction No. 81, this exemption applies to a proposal for a new LPTV, television translator or Class A television broadcast station that is owned and operated by a municipality and which transmits only noncommercial programs for educational purposes.
2. In the same order, the Commission also stated that proposals for NCE stations may be submitted for non-reserved spectrum in a filing window, subject to being returned as unacceptable for filing if there is any mutually exclusive application for a commercial station. Accordingly, the Commission will provide applicants in Auction No. 81 with an opportunity to designate their status as an NCE station applicant under the definition set forth in 47 U.S.C. 397(6)(B). Applicants must understand that if they make such a claim and one or more of the NCE applicant's engineering proposals is determined to be mutually exclusive with one or more engineering proposals filed by an applicant for a commercial station, the NCE station engineering proposal(s) will be returned as unacceptable for filing.
3. To claim status as an NCE applicant, an applicant for Auction No. 81 must submit an amendment to its short-form application (FCC Form 175) in the form of a written statement filed in an e-mail sent to
4. The
5. The
6. Participation in Auction No. 81 will be limited to those applicants and mutually-exclusive (MX) engineering proposals that are identified in the revised Attachment A. Qualified applicants will be eligible to bid only on those construction permits for which the applicant's engineering proposal is specified in the particular MX group as identified in the revised Attachment A to the
7. In response to the
Please note that the date for the Federal Communications Commission open meeting is rescheduled from Thursday, April 28, 2005 to Friday, April 29, 2005.
The Federal Communications Commission will hold an open meeting on the subjects listed below on Friday, April 29, 2005, which is scheduled to commence at 9:30 a.m. in Room TW-C305, at 445 12th Street, SW., Washington, DC.
The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, and assistive listening devices will be provided on site. Request other reasonable accommodations for people with disabilities as early as possible. Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to
Additional information concerning this meeting may be obtained from Audrey Spivack or David Fiske, Office of Media Relations, (202) 418-0500;
For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services call (703) 993-3100 or go to
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc. (202) 488-5300; Fax (202) 488-5563; TTY (202) 488-5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by e-mail at
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the proposed renewal of an information collection, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Currently, the FDIC is soliciting comments concerning an information collection titled “Prompt Corrective Action.”
Comments must be submitted on or before June 27, 2005.
Interested parties are invited to submit written comments to the FDIC. All comments should refer to “Prompt Corrective Action, 3064-0115.” Comments may be submitted by any of the following methods:
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• E-mail:
• Mail: Leneta G. Gregorie (202-898-3719), Counsel, Room MB-3082, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
• Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m.
A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Mark Menchik, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 3208, Washington, DC 20503, or by electronic mail to
Leneta G. Gregorie, (202) 898-3719, or at the address identified above.
Proposal to renew the following currently approved collection of information:
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the collection should be modified prior to submission to OMB for review and approval. Comments submitted in response to this notice also will be summarized or included in the FDIC's request to OMB for renewal of this collection. All comments will become a matter of public record.
Tuesday, May 3, 2005 at 10 a.m.
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. § 437(g).
Audits conducted pursuant to 2 U.S.C. § 437g, § 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
Thursday, May 5, 2005, at 10 a.m.
999 E Street, NW., Washington, DC (Ninth floor).
This meeting will be open to the public.
Correction and Approval of Minutes.
Advisory Opinion 2005-04: Representative John Boehner and Friends of John Boehner by counsel, Jan Witold Baran.
Routine Administrative Matters.
Mr. Robert Biersack, Press Officer, Telephone: (202) 694-1220.
In accordance with § 271.25 of its rules regarding availability of information (12 CFR part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on March 22, 2005.
The Federal Open Market Committee seeks monetary and financial conditions that will foster price stability and promote sustainable growth in output. To further its long-run objectives, the Committee in the immediate future seeks conditions in reserve markets consistent with increasing the Federal funds rate to an average of around 23/4 percent.
The vote encompassed approval of the paragraph below for inclusion in the statement to be released shortly after the meeting:
“The Committee perceives that, with appropriate monetary policy action, the upside and downside risks to the attainment of both sustainable growth and price stability should be kept roughly equal. With underlying inflation expected to be contained, the Committee believes that policy accommodation can be removed at a pace that is likely to be measured. Nonetheless, the Committee will respond to changes in economic prospects as needed to fulfill its obligation to maintain price stability.”
By order of the Federal Open Market Committee, April 19, 2005.
The systematic collection of influenza surveillance data over time is necessary to monitor and track influenza virus and disease activity and is essential to understanding the impact influenza has on a country's population. Improving surveillance systems by developing influenza surveillance networks is critical for the rapid detection of new variants, including those with pandemic potential, to contribute to the global surveillance system. Global collaboration, under the coordination of the World Health Organization (WHO), is a key feature of influenza surveillance. WHO established an international laboratory-based surveillance network for influenza in 1948. The network currently consists of 112 National Influenza Center (NIC) laboratories in 83 countries, and four WHO Collaborating Centers for Reference and Research of Influenza (including one located at the Centers for Disease Control and Prevention). The primary purposes of the WHO network are to detect the emergence and spread of new antigenic variants of influenza, to use this information to update the formulation of influenza vaccine, and to provide as much warning as possible about the next pandemic. This system provides the foundation of worldwide influenza prevention and control.
Monitoring of influenza viruses and providing contributions to the global surveillance system will assure that data used in annual WHO vaccine recommendations are relevant to each country that participates. Increased participation in the global surveillance system for influenza viruses will enhance each country's ability to monitor severe respiratory illness, to develop vaccine policy, and to help build global and regional strategies for the prevention and control of influenza. Monitoring influenza disease activity is important to facilitate resource planning, communication, intervention, and investigation.
This announcement seeks to support foreign governments through their Ministries of Health or other responsible Ministries for human health in the development or improvement of epidemiologic and virologic influenza surveillance networks. These networks will focus on the systematic collection of virological and epidemiological information for influenza. This support is meant to enhance, and not to supplant, current influenza surveillance activities. Proposals should build upon infrastructure already in place. Preference will be given to countries where resources are currently limited and influenza surveillance is not well established due to lack of resources.
The objectives of this program are to (1) establish or enhance an active influenza surveillance network that uses standardized data collection instruments, operational definitions, and laboratory diagnostic tests to enhance surveillance for influenza at three or more sites within the country; (2) use the experience gained to expand the surveillance system to include additional sites; (3) improve local laboratory diagnostic capabilities by supporting and enhancing those local laboratories that participate in influenza surveillance; (4) develop educational and training opportunities for local public health practitioners as part of broader efforts to improve public health infrastructure in the region; and (5) improve communications and data exchange between laboratories and epidemiologists in the global influenza surveillance network by expanding the
Measurable outcomes of the program will be in alignment with the following performance goal(s) for the National Center for Infectious Diseases (NCID): Protect Americans from infectious diseases.
This announcement is only for non-research activities supported by CDC/ATSDR. If research is proposed, the application will not be reviewed. For the definition of research, please see the CDC Web site at the following Internet address:
Awardee activities for this program are as follows:
• Develop a nationwide system to collect virologic and epidemiologic data for influenza by establishing five or more sites with good geographic distribution throughout the country. Each site will consist of a local laboratory and one or more clinics or hospitals for data collection. Each site should:
◦ Conduct virologic and epidemiologic surveillance for influenza by collecting information year round in countries or regions of countries with tropical and subtropical climates; and/or by collecting surveillance information during the period of respiratory illness circulation in countries or regions of countries with temperate climates.
◦ Have laboratory capacity for performing influenza virus isolation and typing.
◦ Collect information on influenza like illnesses and/or severe respiratory disease at each site by building on information that is already available. Possible sources of information include (1) recording influenza-like-illness visits to physicians or primary care clinics or hospitals based on a standard case definition, or (2) monitoring hospital admissions for severe respiratory illness and pneumonia based on a case definition. Patient information such as age, patient history and other relevant information should be collected.
◦ Collect a subset of at least 10 (and preferably up to 25) specimens from the patient populations under surveillance with febrile, acute upper respiratory illness. These specimens should be collected weekly during the period of surveillance (based on climate) using a standard case definition (preferably WHO) and should be submitted to the local laboratory for the site.
◦ During unusual outbreaks of influenza, such as outbreaks with unusual epidemiologic characteristics, or those related to infections by avian or other animal influenza viruses, collect epidemiologic information to characterize the outbreak and collect additional samples for viral isolation and submittal to the site laboratory. Report the outbreak to the NIC.
◦ Prepare and provide regular weekly reports on the epidemiologic information that has been collected (influenza-like-illness and/or severe respiratory illness) to the local laboratory and to the NIC.
◦ The laboratory will perform viral isolation for influenza viruses either in tissue culture or in eggs. Type positive isolates for influenza A and B, and if possible, subtype influenza viruses.
◦ Store original clinical materials at -70 degrees until the beginning of the next influenza season.
◦ Submit viral isolates to the NIC within the country on at least a monthly basis for more complete analysis.
• The WHO NIC within a country can be one of the surveillance sites and as such conduct all the activities listed above. If there are two or more NICs within a country each NIC could participate as a site, however NICs within a single country should work together and place emphasis on the addition of new surveillance sites. In addition, the NIC(s) should act as the focal point and authority within their country on influenza surveillance and be the main point of communication with WHO and WHO Collaborating Centers for the submittal of virus isolates and information into the global surveillance system. Each NIC also will be responsible for the following activities:
◦ Performing preliminary antigenic and, if possible genetic, characterization on the virus isolates submitted from the laboratories in the surveillance sites (including those isolates grown at the NIC).
◦ Send representative virus isolates to one of the four WHO Collaborating Centers for Influenza, including any low reacting viruses, as tested using the WHO reagent kit, each month during the period of surveillance and more frequently, if possible.
◦ If any viruses are unsubtypable as tested using the WHO kit, alert WHO and send the virus isolate to one of the four WHO Collaborating Centers for Influenza immediately.
◦ During the period of surveillance, provide weekly influenza surveillance information to WHO through FluNet.
◦ Provide an annual national summary on influenza activity, virological information and other relevant information on influenza to WHO and the WHO Collaborating Center in Atlanta, GA.
◦ Provide technical expertise and training to support the surveillance sites and laboratories in the national network.
• Foreign Governments applying for funding through this cooperative agreement should play a substantial role in the development and support of the influenza surveillance network.
◦ Facilitate the sharing of influenza surveillance information with the WHO Global Influenza Surveillance network by facilitating the regular exchange of information and viruses with one of the four WHO Collaborating Centers.
◦ Provide continued support for influenza activities within the country and develop a plan for increased participation in the global influenza surveillance network over a five-year period.
◦ Consider developing a task force or working group for influenza to determine ways to improve national influenza surveillance, develop prevention and control measures such as vaccine policy and work on pandemic preparedness.
◦ Facilitate communication between the veterinary and the human side of influenza surveillance. Develop systems for the sharing of information.
In a cooperative agreement, CDC staff is substantially involved in the program activities, above and beyond routine grant monitoring.
CDC Activities for this program are as follows:
• Provide technical assistance on techniques and reagents for the identification of influenza viruses. Annually provide the WHO reagent kit, which is produced and distributed by the WHO Collaborating Center for Influenza in Atlanta, GA.
• Provide epidemiological and laboratory training.
• Provide technical consultation on the development of country networks.
• Provide confirmation of antigenic analysis and more detailed characterization information on the influenza virus isolates submitted to CDC with written reports back to the NIC.
• Provide technical advice on the conduct of epidemiologic outbreak investigations.
CDC involvement in this program is listed in the Activities Section above.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as documented in required reports), and the determination that continued funding is in the best interest of the Federal Government.
Applications may be submitted by foreign governments through their Ministries of Health or other national government offices responsible for disease surveillance in humans. Only one application per country will be accepted.
Applicants in countries that were funded last year under CDC Program Announcement #04106 are not eligible to apply under this new Program Announcement.
Matching funds are not required for this program. However, the support provided through this cooperative agreement is meant to enhance, and not supplant, current influenza surveillance activities.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive, and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
If your application is incomplete or non-responsive to the special requirements listed in this section, it will not be entered into the review process. You will be notified that your application did not meet submission requirements.
• Late applications will be considered non-responsive. See section “IV.3. Submission Dates and Times” for more information on deadlines.
• This program is not designed or intended to support research, therefore no research will be supported under this cooperative agreement. Any applications proposing research will be considered non-responsive.
• In order to apply and be eligible for this funding, your country must have at least one NIC of record at WHO. CDC will confirm with WHO the status/existence of NIC for each application received. Participation of NICs is a requirement because to meet the goal of this announcement, a significant number of the recipient activities require information and work to be conducted, reported and submitted through the WHO surveillance network.
•
To apply for this funding opportunity use application form PHS 5161-1.
CDC strongly encourages you to submit your application electronically by utilizing the forms and instructions posted for this announcement on
Application forms and instructions are also available on the CDC Web site, at the following Internet address:
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) staff at: 770-488-2700. Application forms can be mailed to you.
• Maximum number of pages: 4
• Font size: 12-point unreduced
• Single spaced
• Paper size: 8.5 by 11 inches
• Page margin size: One inch
• Printed only on one side of page
• Written in English using plain language, avoid jargon
Your LOI must contain the following information:
• List this Program Announcement Number (AA011)
• Name of the government entity that is applying
• Name and contact information for the person who will be responsible for preparing and submitting the application
• Name of NIC(s) that will be involved
• Maximum number of pages: 25. If your narrative exceeds the page limit, only the first pages which are within the page limit will be reviewed.
• Font size: 12 point unreduced
• Single spaced
• Paper size: 8.5 by 11 inches
• Page margin size: One inch
• Printed only on one side of page
• Held together only by rubber bands or metal clips; not bound in any other way.
Your narrative should address activities to be conducted over the entire project period, and must include the following items in the order listed:
• Background and Need: Describe the background and justify the need for the proposed project to enhance or expand influenza surveillance networks in the country. Describe the current infrastructure/influenza surveillance system and how it is used, describe the geographical area and demographics, and describe identified gaps or shortcomings of the current surveillance system.
• Capacity: Describe adequate resources and facilities (both technical and administrative) for enhancing or expanding influenza surveillance. This includes the capacity to conduct quality laboratory measurements and produce and distribute reports. Describe the qualifications and past experience and achievements of professional personnel in research and programs related to this project.
• Objectives and Technical Approach:
◦ Goals—Describe the overall goals of enhancing or expanding your influenza surveillance network.
◦ Objectives—Describe specific objectives of the proposed influenza surveillance network that are measurable and time-phased and are consistent with the objectives for this Cooperative Agreement program as provided in the Purpose section at the beginning of this Program Announcement.
◦ Operational Plan—Present a detailed operational plan for initiating and conducting the influenza surveillance program. Be sure to address each of the specific Activities listed in the Activities section of this Program Announcement. Clearly identify specific assigned responsibilities for all key professional personnel. Identify appropriate surveillance sites with adequate geographic distribution for
◦ Collaborations—Describe adequate and appropriate collaborations with other health agencies during the various phases required to enhance or expand your influenza surveillance network.
• Measures of Effectiveness and Evaluation Plan:
◦ Measures: Provide specific measures of effectiveness that can be used to demonstrate accomplishment of the objectives of this cooperative agreement program. Be sure to address each of the five program objectives listed in the Purpose section of this Program Announcement. Measures must be objective and quantitative so that they can provide meaningful outcome evaluation.
◦ Evaluation Plan: Provide a detailed, adequate and feasible plan for evaluating the results of the influenza surveillance network. This includes plans for evaluating the improvement of the influenza surveillance network as well as plans for evaluating other aspects of the collaboration (
• Budget and justification (not included in page limit)
With staffing breakdown and justification, provide a line item budget and a narrative with justification for all requested costs. Be sure to include, if any, in-kind support or other contributions that will be provided by your country as part of the total project, but for which you are not requesting funding. Budgets should be consistent with the purpose, objectives and program activities and include:
◦ Line-item breakdown and justification for all personnel,
◦ For each contract: (1) Name of proposed contractor; (2) breakdown and justification for estimated costs; (3) description and scope of activities to be performed by contractor; (4) period of performance; (5) method of contractor selection (
Additional information should be included in the application appendices. The appendices will not be counted toward the narrative page limit. This additional information includes:
• Curriculum Vitae and/or Resumes
• Organizational Charts
• Letters of Support from participating organizations and institutions.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal government. 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
For more information, see the CDC Web site at:
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
CDC requests that you send a LOI if you intend to apply for this program. Although the LOI is not required, not binding, and does not enter into the review of your subsequent application, the LOI will be used to gauge the level of interest in this program and to allow CDC to plan the application review.
If you submit your application electronically with Grants.gov, your application will be electronically time/date stamped which will serve as receipt of submission. You will receive an e-mail notice of receipt when CDC receives the application.
If you submit your application by the United States Postal Service or commercial delivery service, you must ensure that the carrier will be able to guarantee delivery by the closing date and time. If CDC receives your submission after closing due to: (1) Carrier error, when the carrier accepted the package with a guarantee for delivery by the closing date and time, or (2) significant weather delays or natural disasters, you will be given the opportunity to submit documentation of the carriers guarantee. If the documentation verifies a carrier problem, CDC will consider the submission as having been received by the deadline.
Otherwise, CDC will not notify you upon receipt of your submission. If you have a question about the receipt of your LOI or application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: 770-488-2700. Before calling, please wait two to three days after the submission deadline. This will allow time for submissions to be processed and logged.
This announcement is the definitive guide on LOI and application content, submission address, and deadline. It supersedes information provided in the application instructions. If your submission does not meet the deadline above, it will not be eligible for review, and will be discarded. You will be notified that you did not meet the submission requirements.
Executive Order 12372 does not apply to this program.
Restrictions, which must be taken into account while writing your budget, are as follows:
• Funds may not be used for research.
• Reimbursement of pre-award costs is not allowed.
• Funds may be spent for reasonable program purposes, including personnel, travel, supplies, and services. Equipment may be purchased if deemed necessary to accomplish program objectives, however, prior approval by CDC officials must be requested in writing.
• The costs that are generally allowable in grants to domestic organizations are allowable to foreign institutions and international organizations, with the following exception: With the exception of the American University, Beirut and the World Health Organization, Indirect Costs will not be paid (either directly or through sub-award) to organizations located outside the territorial limits of the United States or to international organizations regardless of their location.
• The applicant may contract with other organizations under this program; however the applicant must perform a substantial portion of the activities (including program management and operations, and delivery of prevention services for which funds are required.)
• All requests for funds contained in the budget, shall be stated in U.S. dollars. Once an award is made, CDC will not compensate foreign grantees for
• You must obtain annual audit of these CDC funds (program-specific audit) by a U.S.-based audit firm with international branches and current licensure/authority in-country, and in accordance with International Accounting Standards or equivalent standard(s) approved in writing by CDC.
• A fiscal Recipient Capability Assessment may be required, prior to or post award, in order to review the applicant's business management and fiscal capabilities regarding the handling of U.S. Federal funds.
Guidance for completing your budget can be found on the CDC Web site, at the following Internet address:
Submit your LOI by express mail, delivery service, fax, or E-mail to: Ann Moen, CDC, National Center for Infectious Diseases, Mailstop G-16, 1600 Clifton Road, NE., Atlanta, GA 30333, Telephone: 404-639-4652, FAX: 404-639-2334, E-mail:
Submit the original and two hard copies of your application by mail or express delivery service to: Technical Information Management—RFA AA011, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures of effectiveness must relate to the performance goals stated in the “Purpose” section of this announcement. Measures must be objective and quantitative, and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
Your application will be evaluated against the following criteria:
• Objectives and Technical Approach (50 points total)
◦ Does the applicant describe specific objectives of the proposed program that are consistent with the purpose and goals of this announcement and which are measurable and time-phased? (10 points)
◦ Does the applicant identify appropriate sites with adequate geographic distribution for the network? (10 points)
◦ Does the applicant present a detailed operational plan for initiating and conducting the program, which clearly and appropriately addresses all recipient activities? Does the applicant clearly identify specific assigned responsibilities for all key professional personnel? Does the plan clearly describe the applicant's technical approach/methods for developing and conducting the proposed program and evaluation and does it appear feasible and adequate to accomplish the objectives? Does the applicant describe the existence of or plans to establish partnerships? (10 points)
◦ Does the applicant describe adequate and appropriate collaborations with other health agencies during various phases of the project? (10 points)
◦ Has the applicant provided a detailed, adequate and feasible plan for evaluating program results? This includes plans for evaluating the improvement of the influenza surveillance network as well as plans for evaluating other aspects of the collaboration (
• Capacity (35 points total)
◦ Does the applicant describe adequate resources and facilities (both technical and administrative) for conducting the project? This includes the capacity to conduct quality laboratory measurements and produce and distribute reports? (20 points)
◦ Does the applicant provide documentation that professional personnel involved in the project are qualified and have past experience and achievements in research and programs related to the program (as evidenced by curriculum vitae, publications, etc.)? (15 points)
• Background and Need (10 points)
Does the applicant adequately discuss the background for the proposed project and demonstrate a clear understanding of the purpose and objectives of this cooperative agreement program? Does the applicant illustrate and justify the need for the proposed project that is consistent with the purpose and objectives of this program?
• Measures of Effectiveness (5 points)
Does the applicant provide Measures of Effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement? Are the measures objective/quantitative and does it appear they will adequately measure the intended outcome?
• Budget and Justification (not scored):
Does the applicant propose a budget that is reasonable, clearly justifiable, and consistent with the intended use of cooperative agreement funds?
Applications will be reviewed for completeness by the Procurement and Grants Office (PGO) staff, and for responsiveness by NCID. Incomplete applications and applications that are non-responsive to the eligibility criteria will not advance through the review process.
Applicants will be notified that their application did not meet submission requirements.
An objective review panel will evaluate complete and responsive applications according to the criteria listed in the “V.1. Criteria” section above. The panel will consist of CDC or other Federal employees from outside of NCID.
In addition, the following factors may affect the funding decision:
Funding preference will be given to countries where resources are currently limited and influenza surveillance is not well established due to lack of resources. This would include countries in the following geographic regions: Asia, Africa, Mexico, Central America and South America. Additional preference will be given to those countries directly affected by avian influenza.
CDC will provide justification for any decision to fund out of rank order.
August 1, 2005.
Successful applicants will receive a Notice of Award (NOA) from CDC PGO. The NOA shall be the only binding, authorizing document between the recipient and CDC. The NOA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
45 CFR Part 74 and Part 92
For more information on the Code of Federal Regulations, see the National Archives and Records Administration at the following Internet address:
An additional Certifications form from the PHS5161-1 application needs to be included in your Grants.gov electronic submission only. Refer to
The following additional requirements apply to this project:
• AR-10 Smoke-Free Workplace Requirements
• AR-11 Healthy People 2010
• AR-12 Lobbying Restrictions
• AR-15 Proof of Non-Profit Status
Additional information on these requirements can be found on the CDC web site at the following Internet address:
You must provide CDC with an original, plus two hard copies of the following reports:
1. Interim progress report, due no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Budget.
e. Measures of Effectiveness.
f. Additional Requested Information.
2. Financial status report and annual progress report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
These reports must be mailed to the Grants Management or Contract Specialist listed in the “Agency Contacts” section of this announcement.
We encourage inquiries concerning this announcement. For general questions, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: 770-488-2700.
For program technical assistance, contact: Ann Moen, Project Officer, CDC, National Center for Infectious Diseases, Mailstop G-16, 1600 Clifton Road, NE., Atlanta, GA 30333, Telephone: 404-639-4652, e-mail:
For financial, grants management, or budget assistance, contact: Steward Nichols, Grants Management Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: (770) 488-2788, e-mail:
This and other CDC funding opportunity announcements can be found on the CDC web site, Internet address:
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following subcommittee and committee meetings.
6:30 p.m.-9 p.m., June 6, 2005;
8 a.m.-5:30 p.m., June 7, 2005;
8 a.m.-10 a.m., June 8, 2005.
Agenda items are subject to change as priorities dictate.
1 p.m.-5:30 p.m., June 8, 2005;
8:30 a.m.-3:30 p.m., June 9, 2005.
The working group will focus on defining injury infrastructure and developing a simple mechanism to assess current efforts underway throughout the injury field to enhance that infrastructure. Starting at 1 p.m., June 8, through 1:45 p.m., the full committee will vote on the results of secondary review. This portion of the meeting will be closed to the public in accordance with provisions set forth in section 552(b)(4) and (6), title 5 U.S.C., and the Determination of the Director, Management Analysis and Services Office, CDC, pursuant to Public Law 92-463. Following the closed session, the meeting will open to the public for an update on Center activities from the Director, NCIPC; reports from the Subcommittees and Working Group; state infrastructure development; and discussion on how NCIPC can support the recommendations of CDC's Futures Initiative.
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announce the following meeting:
1 p.m.-5:30 p.m., May 23, 2005;
8:30 a.m.-5:30 p.m., May 24, 2005;
8:30 a.m.-5:30 p.m., May 25, 2005.
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office has been delegated the authority to sign
The Board of Scientific Counselors (BSC), Centers for Disease Control and Prevention (CDC), National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (NCEH/ATSDR).
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) and the National Center for Environmental Health/Agency for Toxic Substances Disease Registry (ATSDR) announce the following committee meeting:
Agenda items are tentative and subject to change.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice; reissuance.
The Food and Drug Administration (FDA) is reissuing the notice announcing an opportunity to request a hearing on the agency's proposal to withdraw approval of 13 new drug applications (NDAs) from multiple sponsors. The basis for the proposal is that the sponsors have repeatedly failed to file required annual reports for these applications. In the
Submit written requests for a hearing by May 31, 2005; submit data and information in support of the hearing request by June 27, 2005.
Requests for a hearing, supporting data, and other comments are to be identified with Docket No. 2005N-0143 to be submitted to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Florine P. Purdie Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857,301-594-2041.
FDA is reissuing the notice announcing an opportunity to request a hearing on the agency's proposal to withdraw approval of 13 new drug applications (NDAs) from multiple sponsors. The basis for the proposal is that the sponsors have repeatedly failed to file required annual reports for these applications. In the
The holders of approved applications to market new drugs for human use are required to submit annual reports to FDA concerning each of their approved applications in accordance with § 314.81 (21 CFR 314.81). The holders of the approved applications listed in the following table have failed to submit the required annual reports and have not responded to the agency's request by certified mail for submission of the reports.
Therefore, under § 314.150(b)(1) (21 CFR 314.150(b)(1)) and § 314.200 (21 CFR 314.200), notice is given to the holders of the approved applications listed in the table and to all other interested persons that the Director of the Center for Drug Evaluation and Research proposes to issue an order under section 505(e) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355(e)) withdrawing approval of the applications and all amendments and supplements thereto on the ground that the applicants have failed to submit reports required under § 314.81.
In accordance with section 505 of the act and part 314 (21 CFR part 314), the applicants are hereby provided an opportunity to request a hearing to show why the applications listed previously should not be withdrawn.
An applicant who decides to seek a hearing shall file: (1) On or before May 31, 2005, a written notice of participation and request for a hearing, and (2) on or before June 27, 2005, the data, information, and analyses relied on to demonstrate that there is a genuine and substantial issue of fact that requires a hearing. Any other interested person may also submit comments on this notice. The procedures and requirements governing this notice of opportunity for a hearing, notice of participation and request for a hearing, information and analyses to justify a hearing, other comments, and a grant or denial of a hearing are contained in § 314.200 and in part 12 (21 CFR part 12).
The failure of an applicant to file a timely written notice of participation and request for a hearing, as required by § 314.200, constitutes an election by that applicant not to avail itself of the opportunity to request a hearing concerning the proposal to withdraw approval of the applications and constitutes a waiver of any contentions concerning the legal status of the drug products. FDA will then withdraw approval of the applications and the drug products may not thereafter lawfully be marketed, and FDA will begin appropriate regulatory action to remove the products from the market. Any new drug product marketed without an approved new drug application is subject to regulatory action at any time.
A request for a hearing may not rest upon mere allegations or denials, but must present specific facts showing that there is a genuine and substantial issue of fact that requires a hearing. Reports submitted to remedy the deficiencies must be complete in all respects in accordance with § 314.81. If the submission is not complete or if a request for a hearing is not made in the required format or with the required reports, the Commissioner of Food and Drugs will enter summary judgment against the person who requests the hearing, making findings and conclusions, and denying a hearing.
All submissions under this notice of opportunity for a hearing must be filed in four copies. Except for data and information prohibited from public disclosure under 21 U.S.C. 331(j) or 18 U.S.C. 1905, the submissions may be seen in the Division of Dockets Management (see
This notice is issued under the Federal Food, Drug, and Cosmetic Act (sec. 505 (21 U.S.C. 355)) and under authority delegated to the Director, Center for Drug Evaluation and Research, by the Commissioner.
Food and Drug Administration, HHS.
Notice; withdrawal.
The Food and Drug Administration (FDA) is withdrawing a notice that published in the
This notice is withdrawn on April 28, 2005.
Darlease Hyman, Regulations Policy Management Staff (HF-26), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3480.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Class II Special Controls Guidance Document: Dental Bone Grafting Material Devices.” This guidance document describes a means by which class II dental bone grafting material devices may comply with the requirement of special controls. Elsewhere in this issue of the
Submit written or electronic comments on this guidance at any time. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies on a 3.5″ diskette of the guidance document entitled “Class II Special Controls Guidance Document: Dental Bone Grafting Material Devices” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301-443-8818. See the
Submit written comments concerning this guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Michael E. Adjodha, Center for Devices and Radiological Health (HFZ-480), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-827-5283, e-mail:
In the
The final rule published elsewhere in this issue of the
Following the effective date of the final rule, any firm submitting a 510(k) for the class II devices will need to address the issues covered in the special control guidance. However, the firm need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurances of safety and effectiveness.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on class II dental bone grafting material devices. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
To receive “Class II Special Controls Guidance Document: Dental Bone Grafting Material Devices” by fax, call the CDRH Facts-On-Demand system at
To receive a hard copy or electronic copy of “Class II Special Controls Guidance Document: Dental Bone Grafting Material Devices,” you may either send a fax request to 301-443-8818, or send an e-mail request to
Persons interested in obtaining a copy of the guidance may also do so by using the Internet. CDRH maintains an entry on the Internet for easy access to information, including text, graphics, and files that may be downloaded to a personal computer with Internet access. The CDRH Web site may be accessed at
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). The collections of information addressed in the guidance document have been approved by OMB in accordance with the PRA under the regulations governing premarket notification submissions (21 CFR part 807, subpart E, OMB control number 0910-0120). The labeling provisions addressed in the guidance have been approved by OMB under OMB control number 0910-0485.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for reviewers entitled “Reviewer Guidance: Evaluating the Risks of Drug Exposure in Human Pregnancies.” This guidance is intended to help FDA staff evaluate human fetal outcome data generated after medical product exposures during pregnancy. The goal of such evaluations is to assist in the development of product labeling that is useful to medical care providers when they care for patients who are pregnant or planning pregnancy. The review of human pregnancy drug exposure data and assessment of fetal risk (or lack of risk) requires consideration of human embryology and teratology, pharmacology, obstetrics, and epidemiology. Consequently, FDA staff also are encouraged to consult with experts in these fields, as appropriate.
The guidance announced in this document finalizes the draft guidance entitled “Guidance for Reviewers: Evaluation of Human Pregnancy Outcome Data” announced in the
Submit written comments or electronic comments on agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, or the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist either office in processing your requests. The guidance may also be obtained by mail by calling the CBER Voice Information System at 1-800-835-4709 or 301-827-1800. Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Dianne L. Kennedy, Center for Drug Evaluation and Research (HFD-020), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-443-5162, e-mail:
FDA is announcing the availability of a guidance for reviewers entitled “Reviewer Guidance: Evaluating the Risks of Drug Exposure in Human Pregnancies.” The guidance provides FDA staff with critical factors to consider when evaluating data on the effects of drug exposure during human pregnancies. It also describes the sources of human data on gestational drug exposures and available resources for more information. The guidance is intended to provide FDA reviewers with a standardized and scientific approach to the evaluation of the effects of human gestational drug exposures.
In the
Based on these comments and discussions with FDA's Pregnancy Labeling Subcommittee of the Advisory Committee for Reproductive Health Drugs on June 3, 1999 (64 FR 23340, April 30, 1999), and March 28 and 29, 2000 (65 FR 10811, February 29, 2000), and with other interested parties, the draft guidance has been revised and finalized. The name has been changed from “Evaluating Pregnancy Outcome Data” to “Evaluating the Risks of Drug Exposure in Human Pregnancies” to reflect more accurately the information contained in the guidance.
This guidance is being issued consistent with FDA's good guidance practice regulation (21 CFR 10.115). The guidance represents the agency's current thinking with regard to evaluating data on the effects of drug exposure during pregnancy. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301) 443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The National Health Service Corps (NHSC) of the Bureau of Health Professions (BHPr), HRSA, is committed to improving the health of the Nation's underserved by uniting communities in need with caring health professionals and by supporting communities' efforts to build better systems of care.
The Application for NHSC Recruitment and Retention Assistance submitted by sites or clinicians, requests information on the practice site, sponsoring agency, recruitment contact, staffing levels, service users, charges for services, employment policies, and fiscal management capabilities. Assistance in completing the application may be obtained through the appropriate State Primary Care Offices, State Primary Care Associations and NHSC Contractors. The information on the application is used for determining eligibility of sites and to verify the need for NHSC providers. Sites must apply once every three years.
Estimates of annualized reporting burden are as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Kraemer, Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
On Friday, May 20, the Advisory Committee will meet in plenary session to finalize the fifth report and to select a topic for its next report which will be due to the Congress and to the Secretary of the Department of Health and Human Services in November 2006. An opportunity will be provided for public comment.
Notice; Correction.
The Indian Health Service published a document in the
Patricia Spottedhorse, Division of Grants Operation, Indian Health Service, 801 Thompson Avenue, Suite 120, Rockville, MD 20852, Telephone (301) 443-5204. (This is snot a toll-free number.)
In the
Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
General notice.
Notice is hereby given that, pursuant to title 19 of the Code of Federal Regulations § 111.51(a), the following individual Customs broker licenses and any and all permits have been cancelled due to the death of the broker:
Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
General notice.
Pursuant to section 641 of the Tariff Act of 1930, as amended, (19 U.S.C. 1641) and the Customs Regulations (19 CFR 111.51), the following Customs broker licenses are cancelled without prejudice.
Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
General notice.
Pursuant to section 641 of the Tariff Act of 1930, as amended, (19 U.S.C. 1641) and the Customs Regulations (19 CFR 111.51), the following Customs broker local permits are cancelled without prejudice.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service) have submitted to OMB a request to renew approval for information collection associated with our Training Application (FWS Form 3-2193). Applicants who wish to participate in training sponsored by the Fish and Wildlife Service National Conservation Training Center (NCTC) must complete a training application, which is available in both electronic (Internet) and hard copy versions.
You must submit comments on or before May 31, 2005.
Send your comments and suggestions on this information collection renewal to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-6566 (fax) or
To request a copy of the information collection requirements, explanatory information, or related form, contact Hope Grey at the addresses above or by phone at (703) 358-2482.
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NCTC in Shepherdstown, West Virginia, provides natural resource and other professional training for Service employees, employees of other Federal agencies, and individuals with other affiliations. While most training is targeted for Service employees, NCTC offers slots to State agencies, university personnel, not-for-profit organizations, and members of the general public who request to be considered for training.
NCTC designed FWS Form 3-2193 (Training Application) as a quick and easy method for prospective students to request training. This collection has been in use for 3 years and is used in the daily workings of the NCTC. We encourage applicants to use FWS Form 3-2193 and to submit their requests electronically. NCTC uses data from the form to generate class rosters, class transcripts, and statistics, and as a budgeting tool for projecting training requirements. It is also used to track attendance, mandatory requirements, tuition, and invoicing for all NCTC sponsored courses both on- and off-site.
On January 21, 2005, we published in the
All training courses offered by the NCTC, with the exception of some bureau-specific courses, are open to members of the general public who have the required background experience or knowledge to allow their full understanding of the subject matter. Very few of our training courses have an emphasis on guns and hunting. Those courses that do touch on these subjects are presented in the context of refuge and wildlife management and law enforcement.
In September 2005, we conducted limited public outreach directed at various personnel who have completed FWS Form 3-2193 to request training at the NCTC. All respondents indicated that the information we collect is necessary and appropriate and that the reporting burden is not excessive. We have revised the currently approved form to: (1) Comply with Governmentwide policy regarding collection of Dun and Bradstreet numbers for agencies from which NCTC will need to collect funds, and (2) respond to the suggestions received during our outreach to provide more explanation for non-Federal employees.
We invite your comments on (1) whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the collection information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents.
Fish and Wildlife Service, Interior.
Notice of availability.
The U.S. Fish and Wildlife Service announces that the Draft Comprehensive Conservation Plan (CCP) and Environmental Impact Statement (EIS) is available for Upper Mississippi River National Wildlife and Fish Refuge.
The CCP was prepared pursuant to the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997, and the National Environmental Policy Act of 1969. Goals and objectives in the CCP describe how the agency intends to manage the refuge over the next 15 years.
Comments on the Draft CCP/EIS must be received on or before August 31, 2005.
Copies of the Draft CCP are available on compact disk or hard copy. You may access and download a copy via the planning Web site: (
All comments should be addressed to Upper Mississippi National Wildlife and Fish Refuge, Attention: CCP Comment, 51 East 4th Street, Room 101, Winona, Minnesota 55987, or direct e-mail to
Don Hultman at (507) 452-4232.
The Upper Mississippi River National Wildlife and Fish Refuge encompasses 240,000 acres along 261 miles of Mississippi River floodplain in Minnesota, Wisconsin, Iowa, and Illinois. The Refuge was established by Congress in 1924 to provide a refuge and breeding ground for migratory birds, fish, other wildlife, and plants. The Refuge is perhaps the most important corridor of habitat in the central United States due to its species diversity and abundance, and it is the most visited refuge in the United States with 3.7 million annual visitors.
The focus of the CCP over the next 15 years will be on safeguarding existing habitat; enhancing floodplain habitat in partnership with the U.S. Army Corps of Engineers and the states; increasing the abundance of fish and wildlife; improving wildlife-dependent recreation opportunities such as hunting, fishing, and wildlife observation; ensuring that traditional non-wildlife-dependent recreation remains compatible with the mission of the refuge system and the purposes of the refuge; and improving staffing and infrastructure capability.
The EIS evaluates four alternatives: (1) No action or current direction; (2) wildlife focus; (3) public use focus; and (4) wildlife and integrated public use focus (preferred). The alternatives differ mainly in the level of effort and resources given to fish and wildlife and habitat management and public use opportunities and programs. Under the preferred alternative all current recreational uses would continue, although the location, season of use, and means of use could change.
The National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee et seq) requires the Service to develop a CCP for each National Wildlife Refuge. The purpose in developing a CCP is to provide refuge managers with a 15-year strategy for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and Service policies. In addition to outlining broad management direction for conserving wildlife and their habitats, the CCP identifies wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update these CCPs at least every 15 years in accordance with the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997, and the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370d).
Fish and Wildlife Service, Interior.
Notice.
Dorothy V. Jacobs and Paul A. Jacobs (Applicants) request an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973 (U.S.C. 1531
The Applicants' Habitat Conservation Plan (HCP) describes the mitigation and minimization measures proposed to address the effects of the Project to the Florida scrub-jay. These measures are outlined in the
Written comments on the ITP application and HCP should be sent to the Service's Regional Office (see
Persons wishing to review the application and HCP may obtain a copy by writing the Service's Southeast
Mr. David Dell, Regional HCP Coordinator, (see
If you wish to comment, you may submit comments by any one of several methods. Please reference permit number TE089995-0 in such comments. You may mail comments to the Service's Regional Office (see
The Florida scrub-jay (scrub-jay) is geographically isolated from other species of scrub-jays found in Mexico and the western United States. The scrub-jay is found exclusively in peninsular Florida and is restricted to xeric uplands (predominately in oak-dominated scrub). Increasing urban and agricultural development have resulted in habitat loss and fragmentation which has adversely affected the distribution and numbers of scrub-jays. The total estimated population is between 7,000 and 11,000 individuals.
The decline in the number and distribution of scrub-jays in east-central Florida has been exacerbated by tremendous urban growth in the past 50 years. Much of the historic commercial and residential development has occurred on the dry soils which previously supported scrub-jay habitat. Based on existing soils data, much of the historic and current scrub-jay habitat of coastal east-central Florida occurs proximal to the current shoreline and larger river basins. Much of this area of Florida was settled early because few wetlands restricted urban and agricultural development. Due to the effects of urban and agricultural development over the past 100 years, much of the remaining scrub-jay habitat is now relatively small and isolated. What remains is largely degraded due to the exclusion of fire which is needed to maintain xeric uplands in conditions suitable for scrub-jays.
The Applicants' residential construction will take place within section 5, Township 29 South, Range 37 East, Palm Bay, Brevard County, Florida on Lot 31, Block 316, Port Malabar Unit 9. Lot 31 is within 438 feet of locations where scrub-jays were sighted during 2001-2002 surveys for this species. Scrub-jays using the subject residential lot and adjacent properties are part of a larger complex of scrub-jays located in a matrix of urban and natural settings in areas of Brevard and northern Indian River counties. Within the City of Palm Bay, 20 families of scrub-jays persist in habitat fragmented by residential development. Scrub-jays in urban areas are particularly vulnerable and typically do not successfully produce young that survive to adulthood. Persistent urban growth in this area will likely result in further reductions in the amount of suitable habitat for scrub-jays. Increasing urban pressures are also likely to result in the continued degradation of scrub-jay habitat as fire exclusion slowly results in vegetative overgrowth. Thus, over the long-term, scrub-jays within the City of Palm Bay are unlikely to persist, and conservation efforts for this species should target acquisition and management of large parcels of land outside the direct influence of urbanization.
The subject residential parcel lies within a “high density” urban setting, and the corresponding territory size of the resident scrub-jays has been estimated to range from 5.2 to 10.8 acres based on average territory sizes of scrub-jay in other urban areas. Data collected from 12 scrub-jay families within the city limits of Palm Bay during the 2000 and 2001 nesting seasons provided information about survival and reproductive success of scrub-jays, but did not attempt to estimate territory sizes. This information indicated that territory boundaries tended to shift from year to year, making calculations of territory size difficult. Similarly, point data do not reliably indicate occupied habitat over time since birds in urban settings tend to move within and between years. Thus, using known territory boundaries and point data to delineate occupied habitat likely underestimates areas occupied by scrub-jays.
To assess whether the Applicants' parcel was within occupied scrub-jay habitat, we calculated the maximum average “shift” in territories locations between 2000 and 2001. Based on these estimates, we calculated a maximum average shift of 438 feet between years. We subsequently used the 438 feet as a buffer to surround known territory boundaries and point locations for scrub-jays. We reasoned that 438 feet represented a biologically-based buffer, within which scrub-jays were likely to occur. Application of the 438-foot buffer to known territories and point locations provides a quantitative method to delineate occupied scrub-jay habitat in highly urbanized areas within the city limits of Palm Bay.
The Applicants' residential lot falls within the 438-foot buffer established for known scrub-jay territories and/or point data. Although the Applicants' property lacks substantial woody vegetation typically required for scrub-jay nesting and sheltering habitat, it does provide suitable foraging habitat. Accordingly, loss of this habitat due to residential construction will result in the destruction of scrub-jay foraging habitat.
The Applicants propose to conduct construction activities outside of the nesting season. Other on-site minimization measures are not practicable as the footprint of the home, infrastructure and landscaping on the 0.23-acre lot will utilize all the available land area. On-site minimization may not be a biologically viable alternative due to increasing negative demographic effects caused by urbanization.
The Applicants propose to mitigate for the loss of 0.23 acre of scrub-jay habitat by contributing $3,082 to the Florida Scrub-jay Conservation Fund administered by the National Fish and Wildlife Foundation. Funds in this account are ear-marked for use in the conservation and recovery of scrub-jays and may include habitat acquisition, restoration, and/or management. The $3,082 is sufficient to acquire and perpetually manage 0.46 acre of suitable occupied scrub-jay habitat based on a replacement ratio of two mitigation acres per one impact acre. The cost is based on previous acquisitions of mitigation lands in southern Brevard County at an average $5,700 per acre, plus a $1,000 per acre management endowment necessary to ensure future management of acquired scrub-jay habitat.
We have determined that the HCP is a low-effect plan that is categorically excluded from further NEPA analysis, and does not require the preparation of an EA or EIS. This preliminary information may be revised due to public comment received in response to this notice. Low-effect HCPs are those involving: (1) Minor or negligible effects on federally listed or candidate species and their habitats, and (2) minor or negligible effects on other environmental values or resources. The Applicants' HCP qualifies for the following reasons:
1. Approval of the HCP would result in minor or negligible effects on the Florida scrub-jay population as a whole. We do not anticipate significant direct or cumulative effects to the Florida scrub-jay population as a result of the construction project.
2. Approval of the HCP would not have adverse effects on known unique geographic, historic or cultural sites, or involve unique or unknown environmental risks.
3. Approval of the HCP would not result in any significant adverse effects on public health or safety.
4. The project does not require compliance with Executive Order 11988 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), or the Fish and Wildlife Coordination Act, nor does it threaten to violate a Federal, State, local or tribal law or requirement imposed for the protection of the environment.
5. Approval of the Plan would not establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects.
We have determined that approval of the Plan qualifies as a categorical exclusion under the NEPA, as provided by the Department of the Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). Therefore, no further NEPA documentation will be prepared.
We will evaluate the HCP and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If it is determined that those requirements are met, the ITP will be issued for the incidental take of the Florida scrub-jay. We will also evaluate whether issuance of the section 10(a)(1)(B) ITP complies with section 7 of the Act by conducting an intra-Service section 7 consultation. The results of this consultation, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ITP.
Medford District, Bureau of Land Management, DOI.
Notice of meetings.
The Medford District Resource Advisory Committee will meet in Medford to gain a common understanding of the process related to Pub. L. 106-393, tour project sites, and discuss proposed fiscal year 2006 projects. Agenda topics include background and history of the Secure Rural Schools and Community Self-Determination Act, election of a Chairperson and Vice Chairperson, and development of a common vision; on-site inspections of 2005 projects and proposed 2006 projects; and presentations and discussions regarding proposed 2006 Title II projects.
See
The field trips will start from, and the meetings will be held at, the Medford District Office, located at 3040 Biddle Road, Medford, Oregon.
Karen Gillespie, Medford District Office (541-618-2424).
The field trip dates are:
The meeting dates are:
A public comment period will be held from 2 p.m. to 2:15 p.m. on June 9, 2005, and from 2 p.m. to 2:30 p.m. on August 11, 2005 and August 18, 2005.
60-Day notice of information collection under review: Claim for Damage, Injury, or Death
The Department of Justice (DOJ), Civil Division, has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until June 27, 2005. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Director, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Ms. Brenda E. Dyer, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
Consistent with to 28 CFR 50.7, notice is hereby given that on April 19,m 2005, a proposed consent decree (“decree”) in
In this action, the United States seeks civil penalties and injunctive relief against AK Steel Corporation (“AK Steel”) for violations under Section 309(b) of the Clean Water Act, 33 U.S.C. 1319(b), at its Mansfield Works facility in Mansfield, Richland County, Ohio. The proposed decree provides that AK Steel will pay a civil penalty of $187,500 by electronic funds transfer.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, Ben Franklin Station, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The decree may be examined at the Office of the United States Attorney, 2 South Main Street, #208, Akron, OH 44308, and at the U.S. Environmental Protection Agency—Region 5, 77 West Jackson Boulevard, Chicago, IL 60604-3590. During the public comment period, the decree may also be examined on the following Department of Justice Web site,
Consistent with section122(i) of CERCLA, 42 U.S.C. 9622(i), and 28 CFR 50.7, a Partial Consent Decree with Koch Sulfur Products Company LLC was lodged with the United States District Court for the Middle District of Georgia on April 20, 2005, in the matter of
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that a proposed consent decree in
The proposed consent decree may be examined at the office of the United States Attorney, Charles Evans Whittaker Courthouse, 400 East Ninth Street, Kansas City, Missouri 64106, and at U.S. EPA Region 7, 901 N. 5th Street, Kansas City, Kansas 66101. During the comment period, the consent decree may be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given that on April 8, 2005, a proposed consent decree in
In this action, the United States sought injunctive relief and civil penalties under Section 113 of the Clean Air Act (“CAA”) against Mobile at its McElmo Creek Unit near Aneth, Utah, for operating equipment that emits pollutants without permit authorization, emitting sulfur dioxide and volatile organic compound emissions in excess of its permit limits, failing to properly operate a thermocouple to monitor the pilot light on its flare, failing to comply with leak detection and repair requirements, and failing to provide notice to EPA of a demolition of a structure containing asbestos. The consent decree requires Mobil to: (1) Install a new flare and implement measures to minimize flaring incidents, (2) implement a supplemental environmental project to provide diagnostic medical equipment to the Utah Navajo Health Systems, Inc., which serves local residents, and (3) pay a civil penalty of $350,000.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 with a copy to Robert Mullaney, U.S. Department of Justice, 301 Howard Street, Suite 1050, San Francisco, CA 94105, and should refer to
The consent decree may be examined at the Office of the United States Attorney, 185 South State Street, Suite 400, Salt Lake City, Utah, and at U.S. EPA Region 9, Office of Regional Counsel, 75 Hawthorne Street, San Francisco, California. During the public comment period, the consent decree may also be examined on the following Department of Justice Web site:
Under 28 CFR 50.7, notice is hereby given that on April 19, 2005, a proposed consent decree in
In this action, the United States sought injunctive relief and civil penalties under Section 113 of the Clean Air Act (“CAA”) against Saint Gobain Containers, Inc. (“SGCI”) at its container glass manufacturing facility in Madera, California, for failure to apply best available control technology to control oxides of nitrogen (“NO
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, with a copy to Robert Mullaney, U.S. Department of Justice, 301 Howard Street, Suite 1050, San Francisco, CA 94105, and should refer to
The consent decree may be examined at the Office of the United States Attorney, 1130 “O” Street, Room 3654, Fresno, California, and at U.S. EPA Region 9, Office of Regional Counsel, 75 Hawthorne Street, San Francisco, California. During the public comment period, the consent decree may also be examined on the following Department of Justice Web site:
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that on April 6, 2005, a proposed Consent Decree in
In this action, the United States sought response costs incurred and to be incurred by the Environmental Protection Agency (“EPA”), pursuant to section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9607, in connection the Dublin TCE Site, located in Bucks County, Pennsylvania. Further, the United States sought an order, pursuant to section 106 of CERCLA, requiring defendants to implement remedial measures to address groundwater contamination at the Site.
Under the Consent Decree, defendants will implement the remedial measures required under the terms of the Consent Decree to address groundwater contamination. The Consent Decree provides,
The Department of Justice will receive, for a period of 30 days from the date of this publication, comments relating to the proposed Consent Decree. Comments should be addressed to the Acting Assistant Attorney General for the Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The proposed Consent Decree may be examined at the Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106; and U.S. EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site,
This notice announces a change in benefit period eligibility under the EB Program for Alaska.
The following change has occurred since the publication of the last notice regarding the State's EB status:
• March 6, 2005. Alaska triggered “on” EB. Alaska's 13-week insured unemployment rate for the week ending February 19, 2005, rose above the 6.0 percent threshold necessary to be triggered “on” to EB effective for the week beginning March 6, 2005.
The duration of benefits payable in the EB Program, and the terms and conditions on which they are payable, are governed by the Federal-State Extended Unemployment Compensation Act of 1970, as amended, and the operating instructions issued to the states by the U.S. Department of Labor. In the case of a state beginning an EB period, the State Workforce Agency will furnish a written notice of potential entitlement to each individual who has exhausted all rights to regular benefits and is potentially eligible for EB (20 CFR 615.13(c)(1)).
Persons who believe they may be entitled to EB, or who wish to inquire about their rights under the program, should contact the nearest State Workforce Agency.
Millennium Challenge Corporation.
Notice.
In accordance with Section 610(b)(2) of the Millennium Challenge Act of 2003 (Pub. L. 108-199, Division D), the Millennium Challenge Corporation is publishing a detailed summary and text of the Millennium Challenge Compact between the Government of the Republic of Madagascar and the United States of America acting through the Millennium Challenge Corporation. Representatives of the United States Government and the Republic of Madagascar executed the Compact documents on April 18, 2005.
Poverty in Madagascar is overwhelmingly rural. Rice yields have consistently been among the world's lowest over the last forty years and fertilizer use is one-twelfth the African average. In this setting, the most effective vehicle to reduce poverty is for the rural poor to invest in their land, employ proven technology to enhance productivity, improve farming methods, and sell to new markets. Consequently, the Government of the Republic of Madagascar (“GoM”) asked MCC to support a major effort to attack two of its root causes of poverty: a poorly-functioning financial system that fails to serve the rural poor and a weak land-titling system that fails to provide legally-recognized collateral to support credit and investments in poor rural areas. Further, the Malagasy believe that reforming the weak land-titling system will increase trust in the government and encourage further reform. Finally, improved property rights in land will also help reduce the incentive to engage in environmentally destructive practices, such as slash-and-burn farming, that threaten this uniquely diverse eco-system.
The Program will address rural poverty on two geographic levels: certain activities will be implemented on a national basis and other activities shall be implemented in five high potential agricultural Zones, one of which has already been identified.
The Land Tenure Project of this Compact supports formalizing the titling and surveying systems, modernizing the national land registry, and decentralizing services to rural citizens. The Finance Project includes measures to make financial services available to rural areas, improve credit skills training, and create a streamlined national payments system that is expected to bring delays in check settlement down from 45 to 3 days. The Agricultural Business Investment Project will help support farmers and entrepreneurs identify new markets and improve their production and marketing practices.
The informal and uncertain land ownership prevalent today means that poor families are reluctant to invest in improving the land they farm and have difficulty transferring property outside of people they know. In addition, much of the rural poor lack personal assets to invest themselves, even if they are willing to do so, and inadequately recorded land assets cannot be used as loan collateral. Consequently, producers cannot access credit to purchase supplies to expand production and reach domestic or export markets.
The existing Madagascar land registration system is an expensive and slow paper system with little penetration in rural areas. GoM has processed 1,500 titles per year over the past fifteen years. In 2002, there were 200,000 requests for land titles. Less than 7% of the country's land is titled. Based on current capacity, the backlog of registration requests could take over one hundred years to process.
In addition, the land tenure problem is the primary barrier to increased rural investment and limits agricultural productivity growth. Unregistered, untitled land cannot be used as collateral against loans to generate revenue. Recognizing this, GoM has already established a National Land Policy Framework (PNF).
Activities under this Project include:
• Supporting the PNF by developing new land laws and guiding implementation;
• Creating a land database using satellite imaging and improving the ability of the National Land Service Administration to restore damaged titles and surveys and issue new titles and certificates;
• Establishing local land management offices and training officials in land titling;
• Introducing standardized land registration into the project Zones; and
• Refining techniques for information gathering and dissemination on land tenure issues.
The Land Tenure Project aims to by its completion significantly reduce the time and cost of carrying out property transactions within the Madagascar land registration system and it is expected to issue titles or certificates covering approximately 250,000 hectares.
Of twelve African countries with populations between 10 and 20 million, Madagascar has the lowest density of banking accounts with only 208,000 (relative to a population of nearly 17 million), total formal banking system credit representing only 4% of GDP and microfinance available to only 5% of households. The country's archaic internal payments system continues to be a drag on economic development. Ground transport is still used to move documents and cash. Bank deposits are generally non-interest bearing and loaned out to finance large enterprises and the government deficit. Until 2004, most companies were not required to produce audited financial statements and there are currently only 70 certified accountants in the country.
Without a centralized reporting system or widespread use of consistent financial reporting standards, lenders cannot verify the creditworthiness of applicants, thus, making lending decisions very risky. Local banks specializing in small loans are almost non-existent. Routine transfers between banks can take up to 45 days, making banking difficult if not impossible for the rural poor. The financial sector activities are designed to reduce risk in the country's financial system which will contribute to the increasing availability of financial services in rural areas.
Activities under this Project include:
• Improving financial system efficiency by modernizing banking laws and laws regulating financial instruments and markets;
• Mobilizing rural savings by making new treasury instruments available to savings institutions, entrepreneurs, and households;
• Making National Savings Bank savings products available in rural areas and establishing Micro Finance Institutions (MFIs) credit lines;
• Improving credit skills training and accounting standards to improve the creditworthiness of borrowers; and
• Modernizing the interbank payment system to reduce risk and bring delays in settlement down from 45 days to 3 days.
At completion, the Financial Sector Reform Project should result in a more efficient banking system with a larger number of households having access to formal loan and savings products.
The agricultural business investment activities are designed to build local and regional capacity to identify and access profitable agribusiness market opportunities which will increase investments and, thereby, incomes in rural areas. This Project will identify Madagascar's best investment opportunities. In addition, there will be a large rural information campaign and training programs in agribusiness technology and management and marketing skills.
Activities under this Project include:
• Creating and operating five Agricultural Business Centers (ABCs) in the five Zones to train rural farmers and entrepreneurs in good business practices and identifying the Zones;
• Establishing a National Coordinating Center (NCC) to link the five ABCs with Malagasy government agencies;
• Identifying investment opportunities by researching local, regional and international markets and communicating these to local farmers and entrepreneurs; and
• Teaching technical and business management and marketing skills in the five Zones.
The Agricultural Business Investment Project is designed to complement the land titling and financial reform activities by providing the knowledge needed to improve the productivity of farmers and entrepreneurs. The Project will identify the five targeted Zones in which the Program activities will be undertaken. It should also significantly improve production technologies and the market access capacity of the beneficiaries.
The objective of the Program is to reduce poverty in Madagascar through increasing investment in rural areas. The three Program components will be evaluated based on their contribution to three principal indicators:
• Increase in household income in each of the Zones;
• Increase in land productivity in each of the Zones (
• Increase investment in each of the Zones.
These indicators, together with others at the individual Project activity level (described in the table below), will be used to measure the impact of the Program and implementation progress in accordance with the guidelines set forth in the Monitoring and Evaluation Plan.
MCC and Madagascar have agreed to a series of benchmark indicators to measure progress on the Compact. MCC is also providing initial funding under Section 609(g) of the Millennium Challenge Act to initiate baseline data collection before the Compact enters into force. The use of such funds will provide baselines for the three indicators and would have independent capacity-building value to the Malagasy National Institute for Statistics.
The tables below summarize certain of the anticipated interim measurements and estimated targets for each Project.
Financial administration, procurement and financial and performance audits are budgeted at $7.9 million over four years.
Funds control for the MCA Program will be managed by a separate fiscal agent identified using a competitive process. A modified version of Madagascar's procurement law—which was written with technical assistance from international donors—will govern procurements in the Compact. Disbursements will be made periodically based on performance, projected cash requirements, and compliance with provisions in the Compact and related documents.
The Program will be supplemented by a fiscal accountability plan, setting forth principles on funds control, accounting, financial reporting, auditing, and disbursement.
Program management, which includes personnel, office space, equipment, and general administrative costs, is budgeted at approximately $7.2 million over four years.
The management and control structure is consistent with a priority identified by GoM in the PRSP: a commitment to public-private partnership in the management of key public enterprises. MCA-Madagascar will include representatives of GoM, the private sector, NGOs and intended beneficiaries. They will recruit key managers from both the public and private sectors. A simplified version of this structure is presented below.
MCA Madagascar will be headed by a Steering Committee which will act like a Board of Directors for MCA-Madagascar and be composed of the Chief of Staff of the President; the Secretaries General of each of the following Ministries: Agriculture, Livestock and Fisheries; Economy, Finance and Budget; Industry, Commerce and Private Sector Development; and three non-government members (
The Steering Committee will appoint a management team, composed of a Managing Director, a Manager of Administration and Finance, a Manager of Monitoring and Evaluation, a Manager of Procurement, and three Project Managers with responsibility for each of the three project areas. MCC intends to place one, or possibly two, MCC field representative(s) in Madagascar to monitor and provide support to MCA-Madagascar (including full observer and information rights with respect to the Steering Committee). However, MCA-Madagascar will have the primary role for Program implementation and management.
The Advisory Council will be an independent body made up of beneficiary representatives (including civil society and private sector representatives) who will have a regular opportunity to provide the Steering Committee and MCA-Madagascar management with their views or recommendations on the performance and progress of implementation.
GoM then organized six regional consultative workshops, each consisting of 50 to 150 representatives of the business community, non-governmental organizations, civil society and donors in Antsiranana, Antsirabe, Mahajanga, Toliary, Fianarantsoa, and Toamasina and one national workshop in Antananarivo. During this period, GoM also ran radio and TV broadcasts on the MCA, soliciting on-air input, and published newspaper advertisements that announced meetings and called for submission of proposal ideas.
There is broad agreement among the Malagasy and donors that the activities suggested in the Malagasy Compact proposal are priorities for addressing poverty reduction through economic growth.
Madagascar has undertaken structural reforms, created a more favorable environment for private investment and taken steps to integrate into the world economy. These policies have improved macroeconomic stability and sustained economic growth. The greatest challenge, however, is to ensure that growth translates into improvements in the lives of the poor. Growth needs to be brought to rural areas: Getting the agriculture sector to grow and diversify, linking farmers to markets. Farmers must move beyond subsistence agriculture and start producing for export and for local processing if macroeconomic stability is to be translated into poverty reduction.
The basic premise of the Millennium Challenge Corporation is that establishing the right conditions is essential for economic growth and foreign aid effectiveness. The Madagascar Program establishes the proper conditions: land ownership, access to capital, and utilizing production and management know-how to reduce poverty.
This Program will have a positive economic impact on Madagascar: increased land security will result in more productive and environmentally friendly agricultural practices as well as improve access to credit in rural areas; financial sector reform includes measures to make financial services available to rural areas, improve credit skills training, and create a streamlined national payments system; and, agribusiness investment activities will support farmers and entrepreneurs as they move away from subsistence agriculture to more modern, market-based production.
The U.S. Nuclear Regulatory Commission (Commission) has issued Amendment No. 199 to Facility Operating License (FOL) No. NPF-38 to Entergy Operations, Inc. (the licensee), which revised the FOL and Technical Specifications (TSs) for operation of the Waterford Steam Electric Station, Unit 3 (Waterford 3), located in St. Charles Parish, Louisiana. The amendment modified the FOL and the TSs to allow an increase in the maximum authorized reactor core power level from 3441 megawatts thermal (MWt) to 3716 MWt, which represents a power increase of about 8 percent and is considered to be an extended power uprate (EPU). The amendment is effective as of the date of issuance and is to be implemented prior to restart from refueling outage 13 at the uprated power level.
The application for the amendment was dated November 13, 2003, Agencywide Documents Access and Management System (ADAMS) Accession Number ML040260317, as supplemented by letters dated January 29 (ML040340728), March 4 (ML040690028), April 15 (ML041110527), May 7 (ML041330175), May 12 (ML041380147), May 13 (ML041380145), May 21 (ML041460407), May 26 (ML041490335), July 14 (ML042010150), July 15 (ML042020294), July 28 (ML042120475), August 10 (ML042250177), August 19 (ML042360712), August 25 (ML042440417), September 1 (ML042470194), September 14 (ML042660243), October 8 (2 letters, ML042880327 and ML042880418), October 13 (ML042890193), October 18 (ML042940577), October 19 (ML043010129) October 21 (ML043010238), October 29 (2 letters, ML043080406 and ML043080403), November 4 (ML043140283), November 8 (ML043200122), November 16 (ML043270472), and November 19, 2004 (ML043280359), and January 5 (ML050100225), January 14 (ML050210054), February 5 (ML050400463), February 16 (ML050490396), and March 17, 2005 (ML050810095).
The application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations in Title 10 of the Code of Federal Regulations (10 CFR) Chapter I, which are set forth in the license amendment.
The draft environmental assessment (EA), published in the
The Commission has issued the Final EA related to the action and the determination on the environmental impact stated in the draft EA has not changed. Based upon the EA, the Commission has concluded that the issuance of the amendment will not have a significant effect on the quality of the human environment (70 FR 17128, published April 4, 2005).
As a part of the EPU application, by supplement dated October 29, 2004, the licensee requested, pursuant to 10 CFR 50.90, approval of an amendment for Waterford 3, to revise the minimum volume in the emergency diesel generator fuel oil storage tanks (FOSTs) required by Waterford 3 TSs 3.8.1.1 and 3.8.1.2. The NRC staff has determined that the amendment involves no significant increase in the amounts, and no significant change in the types, of any effluents that may be released offsite, and that there is no significant increase in individual or cumulative occupational radiation exposure. The Commission had previously issued a proposed finding that the amendment involved no significant hazards consideration, and there was no public comment on such finding published December 7, 2004 (69 FR 70716). This amendment revised the TSs for FOL No. NPF-38. The Commission's related evaluation of this change is contained in the Safety Evaluation for the EPU application. The effective date for this amendment is as of the date of issuance and to be implemented prior to restart from the refueling outage 13 in the spring of 2005 to support the power uprate implementation.
Accordingly, the amendment requesting changes to the FOST TSs meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Pursuant to 10 CFR 51.22(b) no environmental impact statement or environmental assessment need be prepared in connection with the issuance of this amendment. For further details with respect to the action, see (1) the application for the EPU amendment dated November 13, 2003, as supplemented by letters dated January 29, March 4, April 15, May 7, May 12, May 13, May 21, May 26, July 14, July 15, July 28, August 10, August 19, August 25, September 1, September 14, October 8 (2 letters), October 13, October 18, October 19, October 21, October 29 (2 letters), November 4, November 8, November 16, November 19, 2004, January 5, January 14, February 5, February 16, and March 17, 2005; (2) the Commission's related Safety Evaluation dated April 15, 2005; and (3) the Commission's EA. 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 O1F2, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the ADAMS Public Electronic Reading Room on the internet at the NRC Web site,
For The Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of TXU Generation Company, LP (the licensee) to withdraw its December 31, 2003, application for proposed amendment to Facility Operating License No. NPF-87 and Facility Operating License No. NPF-89 for Comanche Peak Steam Electric Station, Units 1 and 2, respectively, located in Somervell County, Texas.
The proposed amendment would have revised the facility technical specifications pertaining to extending the allowable Completion Times for the Required Actions associated with restoration of an inoperable Diesel Generator (DG) and associated changes.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated December 31, 2003, and the licensee's letter dated March 17, 2005, which withdrew the application for license amendment. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC, the Commission) has published NUREG-1817, “Environmental Impact Statement for an Early Site Permit (ESP) at the Grand Gulf ESP Site: Draft Report for Comment.” The site is located near the Town of Port Gibson in Claiborne County, Mississippi. The application for the ESP was submitted by letter dated October 16, 2003, pursuant to Title 10 of the Code of Federal Regulations part 52 (10 CFR part 52). A notice of receipt and availability of the application, which included the environmental report (ER), was published in the
The purpose of this notice is to inform the public that NUREG-1817, “Environmental Impact Statement for an Early Site Permit (ESP) at the Grand Gulf ESP Site: Draft Report for Comment,” is available for public inspection in the NRC Public Document Room (PDR) located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, or from the Publicly Available Records (PARS) component of NRC's Agencywide Documents Access and Management System (ADAMS), and will also be placed directly on the NRC Web site at
The NRC staff will hold a public meeting to present an overview of the DEIS and to accept public comments on the document. The public meeting will be held at the Port Gibson City Hall, located at 1005 College Street, Port Gibson, Mississippi, on Tuesday, June 28, 2005. The meeting will convene at 7 p.m. and will continue until 10 p.m., as necessary. The meeting will be transcribed and will include: (1) A presentation of the contents of the DEIS, and (2) the opportunity for interested government agencies, organizations, and individuals to provide comments on the draft report. Additionally, the NRC staff will host informal discussions one hour before the start of the meeting at the library. No formal comments on the DEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meeting or in writing. Persons may register to attend or present oral comments at the meeting by contacting Ms. Cristina Guerrero, by telephone at 1-800-368-5642, extension 3835, or by Internet to the NRC at
Members of the public may send written comments on the DEIS concerning the Grand Gulf ESP application to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the U.S. Office of Personnel Management (OPM) submitted to the Office of Management and Budget (OMB) a request for review of a revised information collection. Standard Form 1153, Claim for Unpaid Compensation of Deceased Civilian Employee, is used to collect information from individuals who have been designated as beneficiaries of the unpaid compensation of a deceased Federal civilian employee or who believe that their relationship to the deceased entitles them to receive the unpaid compensation of a deceased Federal civilian employee. OPM needs this information in order to adjudicate the claim and properly assign a deceased Federal civilian employee's unpaid compensation to the appropriate individuals(s).
We received no comments on our 60-day notice on Standard Form 1153, published in the
Approximately 3,000 SF 1153 forms are submitted annually. It takes approximately 15 minutes to complete the form. The annual estimated burden is 750 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251, or e-mail to
Comments on this proposal should be received within 30 calendar days from the date of this publication.
Send or deliver comments to—Robert D. Hendler, Program Manager, Center for Merit Systems Compliance, Division for Human Capital Leadership and Merit System Compliance Group, U.S. Office of Personnel Management, 1900 E Street, NW., Room 6484, Washington, DC 20415; and Brenda Aguilar, OPM Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, NW., Room 10235, Washington, DC 20503.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the rules of the Boston Options Exchange (“BOX”) to allow market orders to trade on BOX. The text of the proposed rule change is set forth below. Italics indicate additions; brackets indicate deletions.
Sec. 1 through Sec. 8 No change.
Sec. 9 Opening the Market.
The following rules are in effect until August 6, 2005:
(a) Pre-Opening Phase. For some period of time before the opening in the underlying security (as determined by BOXR but not less than one hour and distributed to all BOX Participants via regulatory circular from BOXR), the BOX Trading Host will accept orders and quotes. During this period, known as the Pre-Opening Phase, orders and quotes are placed on the BOX Book but do not generate trade executions. Complex Orders and contingency orders (except “Market-on-Opening”, Minimum Volume, and Fill and Kill orders) do not participate in the opening and are not accepted by the BOX Trading Host during this Pre-Opening Phase. BOX-Top Orders and Price Improvement Period orders are not accepted during the Pre-Opening Phase.
(b) Calculation of Theoretical Opening Price. From the time that the BOX Trading Host commences accepting orders and quotes at the start of the Pre-Opening Phase, the BOX Trading Host will calculate and provide the Theoretical Opening Price (“TOP”) for
A TOP can only be calculated if an opening trade is possible. An opening trade is possible if: (i) The BOX Book is crossed (highest bid is higher than the lowest offer) or locked (highest bid equals lowest offer), or ii) there are
(c) Broadcast Information During Pre-Opening Phase. The BOX Trading Host will disseminate information to all BOX Participants about resting orders in the BOX Book that remain from the prior business day and any orders or quotes sent in before the Opening Match. This information will be disseminated in the usual BOX format of five best limits and associated quantity, aggregating all orders and quotes at each price level. This broadcast will also include the TOP and the quantity associated with the TOP. Any orders or quotes which are at a price better i.e. bid higher or offer lower) than the TOP, as well as all
(d) Market Maker Obligations During Pre-Opening Phase. BOX Market Makers holding an assignment on a given options class are obliged, as part of their obligations to ensure a fair and orderly market, to provide continuous two-sided quotes according to the BOX minimum standards commencing with the minute preceding the scheduled opening of the market for the underlying security.
(e) Opening Match.
(i) Complex Orders and contingency orders do not participate in the Opening Match or in the determination of the opening price. The BOX Trading Host will establish the opening price at the time of the Opening Match. The opening price is the TOP at the moment of the Opening Match. The BOX Trading Host will process the series of a class in a random order, starting at the first round minute after the opening for trading of the underlying security in the primary market, and at each round minute thereafter. If the opening of a particular class is to occur within 15 seconds of the next round minute, the opening of that class will take place at the next subsequent round minute after the round minute that is 15 or less seconds away (i.e. within 75 seconds). The TOP/opening price of a series is the “market-clearing” price which will leave bids and offers which cannot trade with each other. In determining the priority of orders to be filled, the BOX Trading Host will give priority
(ii) The BOX Trading Host will determine a single price at which a particular option series will be opened. BOX will calculate the optimum number of options contracts that could be matched at a price, taking into consideration all the orders on the BOX Book.
(1) The opening match price is the price which will result in the matching of the highest number of options contracts.
(2) Should two or more prices satisfy the maximum quantity criteria, the price which will leave the fewest resting contracts in the BOX Book will be selected as the opening match price.
(3) Should there still be two or more prices which meet both criteria in subparagraphs (1) and (2), the price which is closest to the previous day's closing price will be selected as the opening match price. For new classes in which there is no previous day's closing price, BOX will utilize the price assigned to the class by BOX at the time the class was created (“reference price”).
(f) As the Opening Match price is determined by series, the BOX Trading Host will proceed to move the series from the Pre-Opening Phase to the continuous or regular trading phase and disseminate to OPRA and to all Options Participants the opening trade price, if any. At this point, the BOX trading system is open for trading and all orders and quotes are accepted and processed according to the BOX trading rules. When the BOX Trading Host cannot determine an opening price, but none of the reasons exist for delaying an opening as outlined in paragraph (g) of this Section 9, below, the series will nevertheless move from Pre-Opening Phase to the continuous trading phase.
(g) The BOX Trading Host will not open a series if one of the following conditions is met:
i. The opening price is not within an acceptable range as determined by the MRC, and will be announced to all BOX Participants via the Trading Host. (In making this determination the MRC will consider, among other factors, all prices that exceed a variance greater than [of] either $.50 or 20% to the previous day's closing price.)
ii. There is a
(h) If one of the conditions in paragraph (g) of this Section 9 is met, the MRC will not open the series but will send a RFQ. MRC will delay the opening of the series until such time as responses to the RFQ from the BOX Market Makers assigned to the class, or other interested trading parties, have been received and booked by the BOX Trading Host and the consequent opening price is deemed compatible with an orderly market.
(i) MRC may order a deviation from the standard manner of the opening procedure, including delaying the opening in any option class, when it believes it is necessary in the interests of a fair and orderly market.
(j) The procedure described in this Section 9 may be used to reopen a class after a trading halt.
(a) through (b) No change.
(c) The following types of orders may be submitted to the Trading Host:
i. through iii. No change.
(d) Where no order type is specified, the Trading Host will reject the order.
i. The following designations can be added to one or both of the order types referred to in paragraph (c) above:
(1) through (3) No change.
(4) Minimum Volume (MV). An MV designation can be added to [both] Limit Orders, [and] BOX Top Orders,
(e) through (i) No change.
(a) No change.
(b) Filtering of BOX In-Bound Orders to Prevent Trade-Throughs.
i. No change.
ii. If the order is a BOX-Top Order, the Trading Host will handle the order in the following manner:
(1) In the case where the best price on the BOX Book on the opposite side of the market from the BOX-Top order is equal to the NBBO, the BOX-Top Order will be executed for all the quantity available at this price. Any remaining quantity will be converted to a Limit Order at this execution price pursuant to Section 14(c)(ii) of this Chapter V and filtered as described in subparagraph b(iii) below.
(2) In the case where the best price on the BOX Book on the opposite side of the market from the BOX-Top Order is not equal to the NBBO, the BOX-Top Order will be converted to a Limit Order for its total quantity at the then current NBBO pursuant to Section 14(c)(ii) of this Chapter V and filtered as described in subparagraph b(iii) below.
iii. The Trading Host will filter the relevant orders as follows:
The filter will determine if the order is executable against the NBBO (an order is deemed “executable against the NBBO” when, in the case of an order to sell(buy), its limit price is equal to or lower(higher) than the best bid(offer) across all options exchanges. By definition, a BOX-Top Order
(1) If the order is not executable against the NBBO, the order will be placed on the BOX Book. However, if the order is a P or P/A Order, and not executable against the NBBO, it will be immediately cancelled pursuant to Chapter XII of these Rules.
(2) If the order is executable against the NBBO, the filter will determine whether there is a quote on BOX that is equal to the NBBO.
a. If there is a quote on BOX that is equal to the NBBO, then the order will be executed against the relevant quote. Any remaining quantity of the order is exposed on the BOX Book at the NBBO for a period of three seconds. If the order is not executed during the three second exposure period, then the order will
b. If there is not a quote on BOX that is equal to the NBBO, then the order is exposed on the BOX Book at the NBBO for a period of three seconds, unless such order is a P or P/A Order. If the order is a P or P/A order it will be immediately cancelled pursuant to the Chapter XII of these Rules. If the order is not executed during the three second exposure period, then the order will be handled by the Trading Host pursuant to subparagraph b(iii)(2)(c) below.
c. At the end of the three second exposure period, any unexecuted quantity will be handled by the Trading Host in the following manner:
1. If the best BOX price is now equal to the NBBO, the remaining unexecuted quantity will be placed on the BOX Book and immediately executed against that quote. Any remaining quantity will be i) in the case of Public Customer orders, sent as P/A order(s) to the exchange displaying the NBBO, or ii) in the case of market maker or proprietary broker-dealer orders, returned to the submitting Options Participant; or
2. If the best BOX price is not equal to the NBBO, then any remaining unexecuted quantity will be (i) in the case of Public Customer orders, sent as P/A Order(s) to the exchange displaying the NBBO, or (ii) in the case of market maker or proprietary broker-dealer orders, returned to the submitting Options Participant.
(a) through (d) No change.
(e) Options Participants, both OFPs and Market Makers, executing agency orders may designate BOX-Top
i. No change.
ii. The Options Participant who submitted the Primary Improvement Order is not permitted to cancel or to modify the size of its Primary Improvement Order or the [Customer]
iii. At the conclusion of the PIP, the [Customer]
iv. No change.
(f) through (h) No change.
(i) In cases where an [executable] unrelated order is submitted to BOX on the same side as the [Customer]
It shall be considered conduct inconsistent with just and equitable principles of trade for any Participant to enter unrelated orders into BOX for the purpose of disrupting or manipulating the Improvement Period process.
(j) through (k) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to allow Market Orders to trade on BOX. BSE notes that all of the other options exchanges trade market orders.
BOX's Market-on-Opening Orders are executed on the market opening at the best price available in the market until all volume (required to fill the order) on the opposite side of the market has been traded or the order quantity has been exhausted. Any residual volume left after part of a Market-on-Opening Order has been executed is automatically converted to a limit order at the price at which the original Market-on-Opening Order was executed.
BOX-Top Orders are executed at the best price available in the market for the total quantity available from any contra bid (offer). In general, any residual volume left after part of a BOX-Top Order has been executed is automatically converted to a limit order at the price at which the original BOX-Top Order was executed.
Similar to these order types, Market Orders would be executed at the best price available in the market for the total quantity available from any contra bid (offer). If the full quantity of a Market Order could not be executed at the initial execution price, the remaining quantity of the Market Order would then execute at the next best price available from any contra bid (offer), and so on, until the Market Order was fully executed. To avoid trading through the national best bid or offer (“NBBO”), Market Orders would be filtered prior to execution at each price level pursuant to the procedures set forth in Chapter V, Section 16(b) of the BOX Rules.
During the opening, Market Orders will have priority over Market-on-Opening and Limit Orders.
BSE wishes to clarify how Market Orders would be treated in the following situations:
In the case where the lowest offer for any options contract is $.05, and a BOX participant enters a Market Order to sell that series, any such Market Order shall be considered a Limit Order to sell at a price of $.05.
A Market Order could be designated as a minimum volume (MV) order and would only be executed if the specified minimum volume is immediately available to trade. If a volume equal to or greater than the specified minimum volume of an MV order trades, the residual volume would be filtered against trading through the NBBO according to the procedures set forth in Section 16(b) of Chapter V of the BOX Rules and, if applicable, executed with any orders on the BOX Book.
In general, the BOX PIP is a three-second auction starting at a price better than the current NBBO during which BOX Participants compete to participate in the execution of the Customer Order submitted to the PIP (“PIP Order”) by submitting specially designated orders called Improvement Orders in one penny increments that are valid only in the PIP process. If a Market Order is submitted to BOX during a PIP that is in the same series as the PIP Order, under certain circumstances the submission of the Market Order may prematurely terminate the PIP, or the Market Order may immediately execute against the PIP Order at the NBBO or better. In this regard, Market Orders are treated like BOX-Top Orders, and BSE is taking this opportunity to clarify in the BOX Rules the treatment of BOX-Top Orders in the same circumstances.
The submission to BOX of a Market Order on the same side as a PIP Order will prematurely terminate the PIP when, at the time of the submission of the Market Order, the best Improvement Order is equal to or better than the NBBO. If a Market Order is a buy order, the best Improvement Order is better than the NBBO when the price of the best Improvement Order is lower than the National Best Offer. If a Market Order is a sell order, the best Improvement Order is better than the NBBO when the price of the best Improvement Order is higher than the National Best Bid. When the PIP is terminated, the PIP Order is matched against the best prevailing orders on BOX (whether Improvement Orders or unrelated orders received by BOX during the PIP
Under these circumstances, allowing the PIP to continue would violate BOX's priority rules. For example, assume the NBBO and the best BOX price in the relevant series is $2.00 bid—$2.10 offer and the PIP Order is a buy order for 20 contracts. The PIP starts at $2.09 (one penny better than the National Best Offer). During the PIP interval, Improvement Orders are submitted to the PIP until the price of the best Improvement Order is $2.07. Then a Market Order to buy 20 contracts is submitted to BOX. If the PIP continued, the Market Order would have been executed at $2.10, a price that would have violated BOX's priority rules because the best Improvement Order at $2.07 is at a better price than $2.10. On BOX, even though Improvement Orders may only execute against PIP Orders, the priority rules still apply, and no order can be executed at a price worse than the best price available to another order. Therefore, the PIP must terminate, the PIP Order must be executed in full, and any left over Improvement Orders must be cancelled immediately before the Market Order is executed. The result would be the same regardless if the Market Order was to buy 10 contracts or to buy 30 contracts.
To demonstrate a different scenario, assume the NBBO and the best BOX price in the relevant series is $2.00 bid—$2.10 offer and the PIP Order is a buy order for 20 contracts. The PIP starts at $2.09 (one penny better than the National Best Offer). During the PIP interval, Improvement Orders are submitted to the PIP until the price of the best Improvement Order is $2.07. Then the NBBO changes to $2.00 bid—$2.05 offer, but the BBO stays the same. Then a Market Order to buy 20 contracts is submitted to BOX. Pursuant to BOX's NBBO filter, the Market Order would be exposed internally on BOX for three seconds at $2.05, and become the best BOX bid. Currently, there is no order on BOX that the Market Order could execute against, including the PIP Order, since they are on the same side. Therefore, the PIP may continue. However, if the price of the best Improvement Order had been $2.05 (or lower) when the NBBO changed, the submission of a Market Order would cause the PIP to prematurely terminate because the submission of any additional Improvement Orders at better prices would result in a trade-through of the best BOX bid (the exposed Market Order) when the PIP Order was executed at the end of the PIP.
A Market Order on the opposite side of a PIP Order will immediately execute against the PIP Order when, at the time of the submission of the Market Order, the best Improvement Order is equal to or better than the NBBO. If a Market Order is a buy order, the best Improvement Order is better than the NBBO when the price of the best Improvement Order is lower than the National Best Offer. If a Market Order is a sell order, the best Improvement Order is better than the NBBO when the price
Under these circumstances, allowing the PIP to continue without immediately executing the Market Order against the PIP Order would violate BOX's priority rules. For example, assume the NBBO and the best BOX price in the relevant series is $2.00 bid—$2.10 offer and the PIP Order is a buy order for 20 contracts. The PIP starts at $2.09 (one penny better than the National Best Offer). During the PIP interval, Improvement Orders are submitted to the PIP until the price of the best Improvement Order is $2.07. Then, assume a Market Order to sell 20 contracts is submitted to BOX. If the Market Order did not immediately execute against the PIP Order, it would have been executed at $2.00 with the best BOX bid which would violate BOX's priority rules because the PIP Order, not the best BOX bid, has priority for the best price. Furthermore, the Market Order would not be available to execute against the PIP Order at the end of the PIP. The PIP Order could have missed the opportunity to receive an execution at $2.01.
Assume the same situation as described above, except that a Market Order to sell 30 contracts is submitted to BOX. The Market Order would be partially executed against the PIP Order at $2.01 and the remainder of the Market Order (10 contracts) would be filtered pursuant to Section 16(b) of Chapter V of the BOX Rules. If the Market Order was a Market Order to sell 10 contracts, the Market Order would be executed in full against the PIP Order at $2.01, and the remainder of the PIP Order would continue in the PIP process.
To demonstrate a different scenario, assume the NBBO in the relevant series is $2.05 bid—$2.10 offer, the best BOX price is $2.00 bid—$2.10 offer and the PIP Order is a buy order for 20 contracts. The PIP starts at $2.09 (one penny better than the National Best Offer). During the PIP interval, Improvement Orders are submitted to the PIP until the price of the best Improvement Order is $2.07. Then, assume a Market Order to sell 20 contracts is submitted to BOX. If the Market Order did not immediately execute against the PIP Order, it would have been exposed internally on BOX for three seconds at $2.05. If the Market Order was executed at $2.05 during this three second exposure period against any order other than the PIP Order, this would violate BOX's priority rules because the PIP Order has priority and is entitled to the better price. Therefore, the Market Order immediately executes against the PIP Order at $2.05. However, if the price of the best Improvement Order is $2.04, the option of immediately executing the Market Order against the PIP Order at $2.05 is not available because the PIP Order is already guaranteed a better execution at $2.04, pursuant to the best Improvement Order, and therefore the PIP continues.
Currently, the BOX Rules address the treatment of unrelated orders on the same side as a PIP Order, but do not address the treatment of unrelated orders on the opposite side of a PIP Order. BSE proposes to add subparagraph (b)(iv) to Section 16 of Chapter V of the BOX Rules and to amend Paragraph (i) of Section 18 of Chapter V of the BOX rules to address the treatment of unrelated orders on the opposite side of a PIP Order, as described above. BSE also proposes to eliminate the term “executable” from Paragraph (i) of Section 18 of Chapter V of the BOX rules because this term is not clearly defined. BSE proposes to specify when a Market Order (or BOX-Top Order) would immediately execute against a PIP Order, or cause the PIP to prematurely terminate.
Paragraph (b) of Section 16 of Chapter V of the BOX Rules describes how inbound orders to BOX are filtered to avoid trading-through the NBBO. BOX proposes to add subparagraph (iv) to clarify that at each step in the filtering process, under certain circumstances if an order (including a Market Order) is an unrelated order on the opposite side of a PIP Order, the order will be immediately executed against the PIP Order as described above, and that any remaining quantity will continue in the filtering process as set forth in Paragraph (b) of Section 16 of Chapter V of the BOX Rules.
BSE also proposes to amend Paragraph (e)(iii) of Section 18 of Chapter V of the BOX Rules to specifically exclude unrelated orders that were immediately executed during the interval of a PIP from the list of orders that PIP Orders are matched against at the conclusion of the PIP.
The Exchange believes that the proposal, as amended, is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and
• 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-BSE-2004-51. 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.
On January 25, 2005, the Chicago Board Options Exchange, Inc. (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Pursuant to the proposed rule change, the Exchange will revise Exchange Rule 3.8(a)(iii) to provide that nominees of a member organization approved solely as a Clearing Member are not required to have an authorized trading function. The effect of the rule change is to eliminate the requirement that nominees of Clearing Members attend the Exchange's Member Orientation Program and pass the Exchange's Trading Member Qualification Exam. Clearing Members who wish to engage in trading activities on the Exchange will still be required to designate a nominee who has an authorized trading function. The proposed rule change also makes certain other technical changes to internal Exchange procedures for categorizing its members.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, the requirements of Section 6(b)(5) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq is filing a proposed rule change to modify NASD Rule 7010 to establish a unitary fee schedule for the distribution of Nasdaq Market Center real time data feed products.
The text of the proposed rule change is below.
(a)-(k) No change
The Association may waive all or part of the foregoing charges.
(m)-(p) No Change.
(1) TotalView Entitlement. The TotalView entitlement allows a subscriber to see all individual Nasdaq Market Center participant orders and quotes displayed in the system as well as the aggregate size of such orders and quotes at each price level in the execution functionality of the Nasdaq Market Center, including the NQDS feed.
(A) No Change.
[(B) Distributors of individual participant data in the TotalView Entitlement shall pay a charge of $7,500 per month. Distributors of only the aggregate data in the TotalView Entitlement shall pay a charge of $1,000 per month.]
(
For the period of the offer, the TotalView fee of $[3]
(2) [Definitions.
(A) ]A “controlled device” is any device that a distributor of the Nasdaq data entitlement package(s) permits to: (i) access the information in the Nasdaq data entitlement package(s); or (ii) communicate with the distributor so as to cause the distributor to access the information in the Nasdaq data entitlement package(s). If a controlled device is part of an electronic network between computers used for investment, trading or order routing activities, the burden shall be on the distributor to demonstrate that the particular controlled device should not have to pay for an entitlement. For example, in some display systems the distributor gives the end user a choice to see the data or not; a user that chooses not to see it would not be charged. Similarly, in a non-display system, users of controlled devices may have a choice of basic or advanced computerized trading or order routing services, where only the advanced version uses the information. Customers of the basic service then would be excluded from the entitlement requirement.
[(B) A “distributor” of a Nasdaq data feed is any firm that receives a Nasdaq data feed directly from Nasdaq or indirectly through another vendor and then distributes it either internally or externally. All distributors shall execute a Nasdaq distributor agreement. Nasdaq itself is a vendor of its data feed(s) and has executed a Nasdaq distributor agreement and pays the distributor charge.]
(3) No Change.
(4) No Change.
(r)-(w) No Change.
(a)-(d) No change.
[(e) Distributors receiving MFQS shall pay a monthly fee of $1,000. For the purposes of this subsection only, the term “distributor” shall refer to any firm that receives the MFQS data feed and distributes it to third parties. All such firms must execute a Nasdaq Distributor Agreement.]
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq offers various data products that firms may purchase and redistribute either within their own organizations or to outside parties. Nasdaq assesses “distributor fees” that are designed to encourage broad distribution of the data, and allow Nasdaq to recover the relatively high fixed costs associated with supporting connectivity and contractual relationships with distributors. Because the data products and associated fees were established over many years, the method of calculating such fees must be updated. Nasdaq is proposing to establish a revised monthly distributor pricing structure for its real time data feed products that it believes will allocate equitably data fees across the customer base of data distributors and consumers of Nasdaq market data.
Specifically, the current proposal would establish a distributor fee pricing structure for four real time data feed products: TotalView, OpenView, Mutual Fund Quotation Service (“MFQS”), and Real Time Index. The proposed fees will be assessed to distributors of these real time data feed products, those vendors that receive the real time data feeds that can be re-transmitted in an uncontrolled format. The distributor fees do not apply to Nasdaq's web-based historical data products, which are governed by NASD Rule 7010(p), and they do not apply to data feeds that are produced pursuant to the national market system plan governing Nasdaq stocks (“Nasdaq UTP Plan”). The proposed distributor pricing is also distinct from any per display device or per user population fees for data products such as TotalView.
The proposed pricing structure is comprised of two components for each Nasdaq real time data feed product: (1) a Direct Access Fee, and (2) either an Internal Distribution Fee or an External Distribution Fee. The Direct Access Fee will apply to any organization that receives a real time data product directly from Nasdaq via a data feed. Distributors receiving Nasdaq real time data indirectly (
The Internal Distribution Fee will apply to any organization that receives a real time data feed product (either directly from Nasdaq or through a vendor) and distributes the data solely within its own organization. The External Distribution Fee will apply to any organization that receives a real time data feed product (either directly from Nasdaq or through a vendor) and distributes the data outside its own organization. The External Distribution Fee is higher than the Internal Distribution Fee because external distributors typically have broader distribution of the data than internal distributors. An organization that receives real time data directly from Nasdaq will pay the Direct Access Fee plus the higher of either the Internal Distribution or External Distribution Fee but not both. An organization that only receives real time data feeds indirectly and distributes it within its organization will pay the Internal Distribution Fee; an organization that receives data indirectly and distributes it outside its organization will pay the External Distribution Fee, and an organization that receives real time data feeds indirectly and distributes it both internally and externally will pay the External Distribution Fee.
Nasdaq real time data feed products that are available for distribution would be divided into two categories and each will have a Direct Access Fee, Internal Distribution Fee, and External Distribution Fee assigned. Nasdaq Total View, OpenView, and MFQS will be labeled as “Issuer Specific Data” and Nasdaq Real Time Index will be labeled as “Market Summary Statistics.” Currently, there is no monthly distribution fee for OpenView and the monthly distribution fee for Nasdaq TotalView (set forth at Rule 7010(q)) is based on whether the data distributor receives the TotalView data in an aggregate or detailed form. The monthly fee for TotalView data in aggregate form is $1,000 per distributor and in detailed form is $7,500 per distributor. Under the proposed fee structure, TotalView and OpenView, whether in aggregate or detailed form, will be labeled as “Issue Specific Data-Dynamic Intraday” data for which the proposed monthly fees are $2,500 for Direct Access, $1,000 for Internal Distribution, and $2,500 for
The current monthly fee for distribution of the MFQS is $1,000 for each external distributor. Under the new fee structure, MFQS data will be labeled as “Issue Specific Data—Daily” data for which the proposed monthly fees are $500 for Direct Access, $500 for External Distribution, and no charge for Internal Distribution. The proposed pricing will benefit external distributors that do not take their data directly from Nasdaq. Organizations that take their data directly from Nasdaq but only distribute it internally will pay the Direct Access Fee.
Under the current monthly fee structure set forth in NASD Rule 7030, the fee for Real-Time Index data is $2,000 for external distributors. Under the proposed fee structure, Real-Time Index data will be labeled as “Market Summary Statistics—Intraday.” The proposed monthly fees for Market Summary Statistics will involve a Direct Access fee of $500, an Internal Distribution Fee of $50, and an External Distribution fee of $1,500. The proposed pricing will decrease the costs of non-direct connection external distributors, but increase them for organizations that distribute the data internally.
Nasdaq is also proposing a more flexible policy for distributor reporting of, and payment for, market data usage. NASD Rule 7060 currently provides that such reporting be based on a pro-rated accounting of the specific installation and termination dates for service. Because some data distributors prefer to report data usage on a “full-month” basis, Nasdaq proposes to offer its market data distributors the option of reporting and paying based on either a pro-rated or full-month basis. The selection of pro-rated or full-month reporting will be the business decision of each market data distributor based on its needs and the needs of its customers.
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 impose any inappropriate burden on competition.
No written comments were either solicited or 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 proposed rule change, as amended, 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-2004-185. 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”)
Nasdaq proposes to modify the pricing for NASD members using Nasdaq's Brut Facility (“Brut”). Nasdaq states that it will implement the proposed rule change on April 11, 2005. The text of the proposed rule change is available on the NASD's Web site (
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq's proposed rule change contains two modifications to the fees applicable to transactions in exchange-listed securities.
Nasdaq currently charges a fee of $0.004 per share executed with respect to any order to buy or sell exchange-listed securities that is routed by Brut to an exchange using such exchange's proprietary order delivery system (such as the New York Stock Exchange's (“NYSE”) SuperDOT system). This proposed rule change would reduce this fee for some orders and eliminate it entirely for others.
Under the proposal, the fee for orders to buy or sell exchange-listed securities (assuming such securities are subject to the Consolidated Quotations Service and Consolidated Tape Association Plans and are not Exchange Traded Funds listed on the American Stock Exchange) that are routed by Brut to an exchange using the exchange's proprietary order delivery system would be reduced to $0.0004 per share executed. This fee would only be charged, however, if the orders to which it otherwise applies are routed outside Brut and the Nasdaq Market Center (“NMC”) without first attempting to execute within Brut or the NMC. If an order to which this fee would otherwise apply first attempts to execute against the book maintained by Brut or the NMC, then this fee would no longer be applicable.
By lowering (and eliminating in many cases) the routing fees for certain orders for exchange-listed securities received by Brut, Nasdaq states that it seeks to continue to improve Brut's competitiveness in attracting buy and sell orders for exchange-listed securities. Nasdaq believes that its participants would benefit from the increased liquidity in exchange-listed securities that the proposal is designed to stimulate. Furthermore, Nasdaq states that all investors would benefit from increased competition in this area. Finally, Nasdaq believes that the distinction for fee purposes between orders that check the Brut (or NMC) book before routing and those that are designated for routing regardless of available prices in such book would encourage orders to check the Brut book, which it believes would benefit both the particular investor (who, as a result, may find a better execution) and the market as a whole.
At the same time, the proposed rule change seeks to establish a new fee designed to recover the commissions billed by NYSE specialists to Brut for certain types of limit orders. According to Nasdaq, generally, NYSE specialists charge Brut for executions of limit orders that remained unexecuted on the specialists' books for more than 5 minutes. While the specialists' fee schedules vary, Nasdaq states that the proposed Brut fee of $0.009 per share is generally designed to recover for Brut some of the associated cost.
The new fee would apply when a limit order is delivered to the NYSE via the NYSE's proprietary order delivery system and the time to execute such an order exceeds five minutes (measured as the difference between the time of the NYSE's electronic acknowledgment of the order and the time of execution). The new fee would not apply, however, to day orders executed in the specialists' opening and to good-till-cancelled orders if executed in the opening on the day when they were entered. The new fee would also not apply to any on-close orders or market orders.
This filing applies only to fees charged to NASD members. Nasdaq has submitted a separate filing to make the proposed rule changes contained in this filing applicable to non-members.
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
Nasdaq states that written comments were neither solicited nor received.
The forgoing rule change is subject to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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-2005-048. 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.
On January 19, 2005, the National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change File No. SR-NSCC-2005-01 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The proposed rule change amends Section I.A.3. of Addendum B, Section I.A.3. of Addendum I, Section I.3. of Addendum Q, and Section I.2. of Addendum R of NSCC's Rules and Procedures concerning the operational capability requirements of applicants for membership. NSCC's current rules specify that an applicant must “have adequate personnel capable of handling transactions with the Corporation [NSCC] and adequate physical facilities, books and records and procedures to fulfill anticipated commitments to and to meet the operational requirements of the Corporation [NSCC] * * *.” NSCC believes that these provisions may be interpreted to impose upon NSCC an obligation to make determinations with respect to these particular aspects of applicants' and members' operational capability. NSCC ordinarily leaves such determinations to the applicants' and members' designated examining authorities. The operational capability that NSCC ordinarily focused upon during the application process is the applicant's ability to appropriately communicate with NSCC; that is, the applicant's ability to input data to NSCC and to receive output from NSCC on a timely and accurate basis.
NSCC believes that it is appropriate to clarify these sections of its Rules and Procedures so that they reflect the practices of NSCC and so that there will be no misunderstandings as to their meaning. The text of the above-referenced sections of NSCC's Rules and Procedures will be amended to delete references to adequate personnel and adequate facilities, books, and records that are extraneous to the ability of applicants to communicate with NSCC. In place, these sections will state that an applicant must “be able to satisfactorily communicate with the Corporation [NSCC] * * *.” NSCC will continue to retain the right to examine any aspect of an applicant's or member's business pursuant to the provisions of NSCC Rule 15.
Section 17A(b)(3)(F) of the Act requires among other things that the rules of a clearing agency be designed to assure the safeguarding of securities and funds in its custody or control or for which it is responsible.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular Section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”)
On May 10, 2002, the Commission approved rule changes filed by the NYSE and NASD (the “SROs”) governing research analyst conflicts of interest.
On July 30, 2002, President Bush signed into law the Sarbanes-Oxley Act of 2002 (“SOA”), which required, among other things, that the Commission, or upon authorization and direction of the Commission, a registered securities association or national securities exchange, adopt rules governing analyst conflicts.
In the order approving the Round I rules, the Commission directed the SROs to prepare a report on the operation and effectiveness of the rules by November, 2003. The Commission later postponed requiring the SROs to submit the report in light of the SOA and the approval of the Round II rules.
On April 28, 2003, the Commission, along with other regulators, announced a global settlement of enforcement actions against certain investment firms that followed joint investigations by regulators of allegations of undue influence of investment banking interests on securities research at brokerage firms.
The SROs' research analyst conflicts of interest rules were designed to foster greater public confidence in securities research and to protect the objectivity and independence of securities analysts.
• Structural reforms to increase analyst independence, including a prohibition on investment banking personnel supervising analysts or approving research reports and limiting the compensatory evaluation of analysts to officials employed by the broker or dealer who are not engaged in investment banking activities;
• A prohibition on tying analyst compensation to a specific investment banking services transaction;
• Restrictions on personal trading by analysts;
• A prohibition on retaliation by members and employees of members involved with investment banking activities against analysts as a result of an adverse, negative, or otherwise unfavorable research report or public appearance; and
• A prohibition on offering favorable research to induce investment banking business.
The proposed SRO rule changes further define the types of communications that are inappropriate for research analysts and investment banking personnel. Thus the rules further insulate analysts from investment banking pressure, thereby promoting the integrity of, not only research reports and public appearances, but all communications by research analysts to customers as well as internal personnel. The Commission provides here a general overview of the proposed rule changes.
First, the proposals would prohibit a research analyst from directly or indirectly participating in a road show related to an investment banking services transaction, or otherwise communicating with customers in the presence of investment banking personnel or company management about an investment banking services transaction. Therefore, such “three-way” communications between research, customers and banking, as well as those involving research, customers and issuers, are prohibited.
Second, the proposals would prohibit investment banking personnel from directly or indirectly directing a research analyst to engage in sales and marketing efforts or other communications with a current or prospective customer related to an investment banking services transaction.
Finally, the proposals would require that research analyst written and oral communications relating to an investment banking services transaction with a current or prospective customer or with internal personnel, must be fair, balanced and not misleading, taking into consideration the overall context in which the communication is made. Thus, the proposals preserve the ability of research analysts to educate investors and internal personnel about investment banking services transactions, provided such communications are fair, balanced and not misleading, considering the overall context in which the communication is made.
The Commission received one comment letter on the proposed rule changes, which supported the approval of the proposals. After careful review, the Commission finds, as discussed more fully below, that the proposed rule changes, as amended, are consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to the NYSE and NASD.
Section 6(b)(5) requires, among other things, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of free trade, to remove impediments to and perfect the mechanism of a free and open market, and to protect investors and the public interest. Section 6(b)(5) also requires that the rules of an exchange not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers. Section 6(b)(8) of the Exchange Act prohibits the rules of an exchange from imposing any burden on competition not necessary or appropriate in furtherance of the purposes of the statute.
Section 15A(b)(6) requires that the rules of a registered national securities association be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Section 15A(b)(9) requires that the rules of an association not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
Section 3(f) of the Exchange Act directs the Commission to consider, in addition to the protection of investors, whether approval of a rule change will promote efficiency, competition, and capital formation.
The Commission believes the rule changes, as amended, promote the independence of research analysts and the objectivity of the views analysts communicate to customers and internal personnel.
The proposals prohibit research analysts from participating in road shows related to investment banking services transactions, or otherwise communicating with customers in the presence of investment banking personnel or company management about an investment banking services transaction.
NASD believes that by prohibiting research analyst participation in road shows, the proposed rule change will further reduce the pressure on research analysts to give an overly optimistic assessment of a particular transaction. Further, NYSE believes that the proposed provisions to prohibit analysts from engaging in any communication regarding investment banking services with current or prospective customers in the presence of investment banking personnel or company management also will reduce the pressure on research analysts to give overly optimistic assessments of investment banking services transactions.
We believe that it is appropriate that the SROs prohibit research analysts from participating in road shows, as well as from engaging in communications with investors in the presence of investment banking personnel or issuer management. In addition, we believe that the prohibition on research analyst communications with customers in the presence of investment banking or company management will guard against research analysts being, or being perceived as, part of the sales and marketing team for
We also note that the Round II rules included a prohibition on research analyst involvement in efforts to solicit investment banking, which were designed to further the goals of research objectivity and investor confidence by eliminating all participation by research analysts in solicitation efforts, which could suggest a promise of favorable research in exchange for underwriting business.
Likewise, the proposed prohibition on research analyst participation in road shows would seek to provide for greater analyst objectivity and guard against analysts becoming part of the investment banking team for a transaction. The Commission finds that the rule changes to prohibit research analyst involvement in road shows related to investment banking transactions and three way communications between research, customers, and issuers or investment banking personnel, are consistent with the Exchange Act, particularly Sections 6(b)(5), 6(b)(8), 15A(b)(6), and 15A(b)(9).
The proposals would prohibit investment banking department personnel from directing a research analyst to engage in sales or marketing efforts and any other communication with a current or prospective customer about an investment banking services transaction.
NASD believes this proposal is important to eliminate attempts by investment banking personnel to pressure a research analyst to engage in communications related to an investment banking services transaction, thereby further insulating research analysts from influences that could affect their objectivity. Further, the NYSE believes the proposal preserves the traditional function of research analysts (providing analysis of securities and transactions), while placing further limitations on the ability of investment banking personnel to influence and/or compromise the objectivity of research analyst analyses. The NYSE believes that it is important for investor protection that research analyst views be objective, unbiased, and not the result of pressure on an analyst.
The Commission believes it is appropriate for the SROs to prohibit investment banking personnel from directing research analysts to engage in sales and marketing efforts or to engage in customer communications relating to an investment banking services transaction. We believe that these provisions will further insulate research analysts from investment baking pressure by cutting off the ability of investment banking personnel to directly, or indirectly (
The proposed rule changes require that all research analyst communications (written and oral) with current or prospective customers or with internal personnel relating to an investment banking services transaction, must be fair, balanced and not misleading, taking into consideration the overall context in which the communications are made.
NASD believes that the primary role of a research analyst is to provide unbiased analysis of companies and transactions and to value securities accurately. Therefore, NASD and NYSE note that the proposed rule changes permit research analysts to educate investors and member personnel about investment banking services transactions, so long as such permissible communications to investors and internal personnel are fair, balanced and not misleading, taking into account the overall context in which such communications are made. Thus, NYSE notes that, while the proposed rule should insulate research analysts from potential undue influence of investment bankers and company management, it would not interfere with legitimate activities.
The Commission believes that the SRO proposals are designed to promote the objectivity and independence of research analysts by explicitly requiring that all research analyst written and oral communications with customers, as well as with internal firm personnel, must be fair, balanced and not misleading, considering the context of the communications. These requirements build on existing SRO standards for research analyst communications with the public and provide additional safeguards for research communications with personnel within the broker-dealer.
The SROs suggest that the proposed rule changes become effective 45 days after approval by the Commission and the Commission believes that this is reasonable.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Office of Special Counsel.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), and implementing regulations at 5 CFR part 1320, the U.S. Office of Special Counsel (OSC), plans to request approval from the Office of Management and Budget (OMB) for use of a previously approved information collection consisting of a customer survey form.
OSC is required by law to conduct an annual survey of those who seek its assistance. The information collection is used to carry out that mandate. The current OMB approval for this collection of information expires on July 31, 2005.
Current and former Federal employees, employee representatives, other Federal agencies, state and local government employees, and the general public are invited to comment on this information collection. Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of OSC
Comments should be received by June 27, 2005.
Roderick Anderson, Director of Management and Budget, U.S. Office of Special Counsel, 1730 M Street, N.W., Suite 218, Washington, DC 20036-4505.
Roderick Anderson, Director of Management and Budget at the address shown above; by facsimile at (202) 254-3715. The survey form for the collection of information is available for review by calling OSC, or on OSC's Web site, at http://www.osc.gov/reading.htm.
OSC is an independent agency responsible for, among other things, (1) investigation of allegations of prohibited personnel practices defined by law at 5 U.S.C. 2302(b), protection of whistleblowers, and certain other illegal employment practices under titles 5 and 38 of the U.S. Code, affecting current or former Federal employees or applicants for employment, and covered state and local government employees; and (2) the interpretation and enforcement of Hatch Act provisions on political activity in chapters 15 and 73 of title 5 of the U.S. Code.
OSC is required to conduct an annual survey of individuals who seek its assistance. Section 13 of Public Law 103-424 (1994), codified at 5 U.S.C. 1212 note, states, in part: “[T]he survey shall--(1) determine if the individual seeking assistance was fully apprised of their rights; (2) determine whether the individual was successful either at the Office of Special Counsel or the Merit Systems Protection Board; and (3) determine if the individual, whether successful or not, was satisfied with the treatment received from the Office of Special Counsel.” The same section also provides that survey results are to be published in OSC's annual report to Congress. Copies of prior years' annual reports are available on OSC's Web site, at http://www.osc.gov/library.htm (at the “Annual Reports to Congress” link), or by calling OSC at (202) 254-3600.
OSC plans to enhance the effectiveness of this survey by revising the questions asked, adding a section dealing with the Uniform Services Employment and Reemployment Rights Act (USERRA), limiting questions asked to only those areas where an individual had rights before the MSPB under 5 U.S.C. 1212, and by converting to an online survey. The form has been edited to make the survey clearer (e.g., by re-ordering questions and possible answers). The estimated response time has been reduced due to the survey's automation.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 2678, Employer Appointment of Agent.
Written comments should be received on or before June 27, 2005 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack at Internal Revenue Service, room 6512, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3179, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long
Internal Revenue Service (IRS) Treasury.
Notice.
An open meeting of the Area 4 Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comment, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, May 24, 2005, at 11 a.m., eastern time.
Mary Ann Delzer at 1-888-912-1227, or (414) 297-1604.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Area 4 Taxpayer Advocacy Panel will be held Tuesday, May 24, 2005, at 11 a.m., Eastern time via a telephone conference call. You can submit written comments to the panel by faxing the comments to (414) 297-1623, or by mail to Taxpayer Advocacy Panel, Stop 1006MIL, 310 West Wisconsin Avenue, Milwaukee, WI 53203-2221, or you can contact us at
The agenda will include the following: Various IRS issues.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 27, 2005.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20M35), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information used by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 27, 2005.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20M35), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Health Administration (VHA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument.
Comments must be submitted on or before May 31, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0621” in any correspondence.
VA Form 10-0376a is used to collect data to determine healthcare professionals qualifications and suitability for employment in VA's healthcare facilities.
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
a. National Practitioner Data Bank Regulations—5 hours.
b. Credentials Transfer Brief, VA Form 10-0376a—1 hour.
a. National Practitioner Data Bank Regulations—350.
b. Credentials Transfer Brief, VA Form 10-0376a—1,000.
By direction of the Secretary:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument.
Comments must be submitted on or before May 31, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., or e-mail
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Pub. L. 92-463 (Federal Advisory Committee Act) that a meeting of the Advisory Committee on Prosthetics and Special Disabilities Programs will be held May 17-18, 2005, in Room 830, VA Headquarters, 810 Vermont Avenue, NW., Washington, DC 20420. Meeting sessions will convene at 8:30 a.m. on both days and will adjourn at 4:30 p.m. on May 17, and at 2 p.m. on May 18. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on VA's prosthetic programs designed to provide state-of-the-art prosthetics and the associated rehabilitation research, development, and evaluation of such technology. The Committee also provides advice to the Secretary on special disability programs which are defined as any program administered by the Secretary to serve veterans with spinal cord injury, blindness or vision impairment, loss of or the use of extremities, deafness or hearing impairment, or other serious incapacities in terms of daily life functions.
On the morning of May 17, the Committee will review and discuss the Blind Rehabilitation Services and Seamless Transition and the Fiscal Year 2003 Capacity Report. In the afternoon, the Committee will have briefings by the Chief Consultants, Rehabilitation Strategic Healthcare Group, Prosthetics and Sensory Aids, and Spinal Cord Injury. On the morning of May 18, the Committee will be briefed by the Vocational Rehabilitation and Employment Service and the General Counsel's staff (on federal ethics standards).
No time will be allocated for receiving oral presentations from the public. However, members of the public may direct questions or submit written statements for review by the Committee in advance of the meeting to Ms. Cynthia Wade, Designated Federal Officer, Veterans Health Administration, Patient Care Services, Rehabilitation Strategic Healthcare Group (117),
By Direction of the Secretary.
Bureau of Indian Affairs, Interior.
Final rule.
This final rule addresses six areas involving Indian education: Defining adequate yearly progress; establishing geographic attendance areas for Bureau of Indian Affairs-funded schools (Bureau-funded schools); establishing a formula for the minimum amount necessary to fund Bureau-funded schools; establishing a system of uniform direct funding and support for Bureau-operated schools; providing guidelines to ensure the Constitutional and civil rights of Indian students; and establishing a method for administering grants to tribally controlled schools. The rule implements the provisions of the No Child Left Behind Act of 2001.
Catherine Freels, DOI Office of the Solicitor, 505 Marquette Avenue NW., Suite 1800, Albuquerque, NM 87102, phone 505-248-5600.
Contents of the
This section addresses:
Under 25 U.S.C. 2018 , the Secretary of the Interior (Secretary) established the No Child Left Behind Negotiated Rulemaking Committee (Committee) to develop proposed rules to implement several sections of the Act relating to the Bureau-funded school system. (In this preamble and rule we use the term “the Act” to refer to the No Child Left Behind Act, Pub. L. 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and amends the Education Amendments of 1978.) The Act required that the Committee be comprised only of representatives of tribes served by Bureau-funded schools and the Federal government. It also required that, to the maximum extent possible, the tribal representative membership should reflect the proportionate share of students from tribes served by the Bureau-funded school system.
The requirements of the Act that are the subject of this negotiated rulemaking process are:
(1)
(2)
(3)
(4)
(5)
(6)
Under the Act, in August and September, 2002, the Secretary conducted regional consultation meetings with tribes on the six areas of the Act to be negotiated. Following consultation and under the Act and the Negotiated Rulemaking Act (subchapter III of chapter 5, title 5, United States Code), in November, 2002, the Secretary published a Notice of Intent To Form a Negotiated Rulemaking Committee (67 FR 75828, December 10, 2002) and requested nominations for tribal representatives for the Committee.
The Secretary reviewed tribal nominations for tribal representatives and announced selection of 19 tribal representatives and 6 Federal representatives from the Department of the Interior (68 FR 23631, May 5, 2003). Tribal membership on the Committee represented, to the maximum extent possible, the proportionate share of students from tribes served by Bureau-funded schools. The Secretary chartered the No Child Left Behind Negotiated Rulemaking Committee under the Federal Advisory Committee Act (5 U.S.C. Appendix) on May 1, 2003.
The Committee held its first meeting in June, 2003. It agreed on protocols to govern the meetings and selected three tribal representatives and two Federal representatives as co-chairs. A third party neutral approved by the Committee served as lead facilitator for all Committee meetings. The Committee met five times, from June 2003, through October 2003, to develop recommendations for six proposed rules. The Committee divided the areas subject to regulation among four work groups: funding and funding distribution; student rights and geographic boundaries; administration of grants; and adequate yearly progress. These work groups prepared written products for review, revision, and approval by the full Committee.
The Committee operated by consensus and recommendations for proposed rules were consensus decisions. All Committee and work group meetings were open to the public, and members of the public were afforded the opportunity to make oral comments at each session and to submit written comments.
The Department published a proposed rule in the
The Notice of Proposed Rulemaking for parts 30, 37, 39, 42, 44, and 47, published February 25, 2004, provided
The Committee was provided the full text of each comment and summaries of each comment for review. The Committee operated by consensus in reviewing comments to determine whether to accept a comment and make suggested changes to a rule, accept a comment and modify suggested changes, or acknowledge a comment and make no changes. Comments were handled as follows.
Following receipt of the Committee's recommendations for the final rules, the Secretary reviewed the public comments and made changes as noted for each part. Changes that are purely grammatical are not discussed. Public comments and responses are noted below under the applicable part.
When the proposed rule was published, there was an oversight in the wording of the amendatory language for part 39. Rather than stating that the entire subpart was proposed for revision, the amendatory language should have stated that only subparts A through H were proposed for revision. Our intention, and that of the negotiated rulemaking Committee, was to leave subparts I through L in place with no revisions. This final rule corrects that oversight.
Additional changes are required in order to eliminate conflicts between the amendments in these regulations and existing regulations in other parts of 25 CFR. In a rule published elsewhere in today's
We received the following general comments referring to all parts:
For purposes of adequate yearly progress (AYP), the Bureau of Indian Affairs is considered the State Educational Agency (SEA) for the Bureau-funded school system.
20 U.S.C. 6311(b) requires each State to submit a plan to the Secretary of Education which demonstrates that the State, through its SEA, has adopted challenging academic content standards and challenging student academic achievement standards applicable to all schools in the State, and to develop assessment devices through which student achievement will be measured.
The Act requires each SEA to define the AYP that schools and local educational agencies (LEAs) must attain toward the goal of all students reaching the proficient level on reading/language arts and mathematics assessments by school year 2013-2014. Each State's AYP definition must include a starting point and intermediate goals for student improvement in reading/language arts and mathematics; if a school or LEA does not meet the intermediate goals for two consecutive years or more, it is identified as in need of improvement and must implement an improvement plan and take certain other actions under the Act.
The Act requires a State and the Bureau of Indian Affairs to define AYP in a manner that achieves the following requirements:
The AYP definition must also include “additional indicators.” For high schools, the additional indicator must be graduation rates. The SEA must select one additional academic indicator applicable to elementary and middle schools. An SEA may also identify additional optional indicators of student progress to include in its definition of AYP.
To define Adequate Yearly Progress (AYP) for Bureau-funded schools, the Committee first had to master an understanding of all of the components of Adequate Yearly Progress under the Act and how they interrelate with a final definition of AYP. While the workgroup had to look at the curriculum, standards, and assessments that Bureau-funded schools were using, the Committee did not negotiate these items. The negotiation was limited to the definition of AYP.
A detailed procedure for submission of an alternative AYP definition by a tribe or school board, and for review/
The consequences of failing to make AYP are described in § 30.117. While the remedial statuses of “school improvement,” “corrective action,” and “restructuring” applicable to public schools are also applicable to Bureau-funded schools, the latter are exempt from two requirements—school choice and supplemental educational services—that apply to public schools (see § 30.120). These exemptions are expressly stated in the regulation. The regulation also reiterates in § 30.119 the tribally operated school board's responsibility to implement remedial actions, while the Bureau is responsible for implementing these remedial actions at Bureau-operated schools.
The rule specifies in § 30.121 the Bureau's responsibilities under the Act to provide funding and technical assistance to schools who fail to make AYP, and in § 30.122 the Bureau's responsibility to provide ongoing support to all schools to assist them in making AYP. The proposed regulation also details the Bureau's reporting responsibilities in § 30.126.
Only major, substantive public comments are discussed below. In some instances, we have combined several similar or identical comments and replied to them in one response. Grammatical changes, minor wording revisions, and other purely style-oriented comments are not discussed; however, changes to the final rule reflect such public comment. The Secretary reviewed the final rule and made the changes as noted below.
The Secretary has decided to keep the definition of AYP as published in the Notice of Proposed Rulemaking published on February 25, 2004 with certain clarifying changes as described in the preceding section. Since the Department did not receive comments that had not already been considered when the Committee made the difficult choice to recommend the definition found in the NPRM, the Secretary decided to adopt the NPRM's definition. Thus, the definition of AYP remains that of the State in which a school is located until the school has received a waiver of that definition from the Secretary of the Interior.
The AYP workgroup of the negotiated rulemaking Committee initially considered a definition that would require all Bureau-funded schools to show that a set percentage of students (
After Congress passed the Goals 2000 Act (Pub. L. 103-227), States had to set standards for student achievement. The Bureau chose to adopt national standards, but most schools chose to align with the standards of the State where they were located. The Committee found that the Bureau of Indian Affairs has traditionally allowed tribes to follow State curricula, academic content and student achievement standards and assessments. Originally, the Bureau had attempted to create a system in which all of the tribes would follow one set of curriculum, standards, and assessments. Some tribes expressed concern over this approach. Tribes suggested that the students of Bureau-funded schools would be better served by allowing the schools to follow the State's curriculum, standards, and assessments because the Bureau-funded school students are traditionally more transient and sometimes move between Bureau-funded schools and public schools. Therefore, Bureau-funded schools began aligning their curriculum, standards, and assessments with the State in which they were located.
In light of this history, the Committee revised its initial plan and decided to adopt as the Secretary's definition of AYP the definition of the State in which a school is located. However, a tribal governing body or school board may develop an alternative AYP definition and submit it to the Secretary for approval. This decision implements 20 U.S.C. 6316(g) of the Act, which expressly permits a tribe or school board to waive the Bureau's AYP definition and develop its own, subject to the Secretary's approval in consultation with the Secretary of Education.
During our initial negotiations, Tribal representatives on the Committee expressed serious objection to adopting State AYP definitions as the Secretary's definition instead of establishing a Bureau-specific definition, which some tribes and school boards might prefer. There was concern that requiring use of a State's definition would imply that Bureau-funded schools were subject to State jurisdiction, would signal abandonment of the Federal Government's trust responsibility for Indian education, and could diminish tribal sovereignty. In recognition of these concerns, the Committee developed language for the proposed rules that expressly states that nothing in the rules diminishes the Secretary's trust responsibility for Indian education or any statutory rights, affects in any way the sovereign rights of an Indian tribe, or subjects Bureau-funded schools to State jurisdiction.
The Committee also had no consensus regarding comments made by the Department of Education on the proposed definition of AYP. The Department of Education did not provide these comments during the original public comment period.
Since the Department of Education is a Federal agency, the Department of the Interior believed that it could nevertheless consider Education's comments. However, to ensure fairness to any member of the public who had not yet provided comment, the Department of the Interior formally reopened the public comment period for receipt of comments from Education and any member of the public. During review of the comments, the Federal Committee members believed that some of Education's comments should be accepted and the proposed changes be made to the rule. Some tribal Committee members objected that the Federal Committee members would not negotiate whether to consider Education's comments. Therefore, the Committee could not reach consensus on whether to accept Education's comments. Since there was no Committee recommendation, the Secretary in adopting the final rule has accepted certain Department of Education comments.
The Secretary also added the Department of Education's language suggestions to the Department's final rule in § 30.107 to read:
(a) An alternative definition of AYP must meet the requirements of 20 U.S.C. 6311(b)(2) and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and the students served.
(b) In accordance with 20 U.S.C. 6311(b) and 34 CFR 200.13-200.20, an alternative definition of AYP must:
(1) Apply the same high standards of academic achievement to all students;
(2) Be statistically valid and reliable;
(3) Result in continuous and substantial academic improvement for all students;
(4) Measure the progress of all students based on a high-quality assessment system that includes, at a minimum, academic assessments in mathematics and reading or language arts;
(5) Measure progress separately for reading or language arts and for mathematics;
(6) Unless disaggregation of data cannot yield statistically reliable information or reveals personally identifiable information, apply the same annual measurable objectives to each of the following:
(i) The achievement of all students; and
(ii) The achievement of economically disadvantaged students, students from major racial or ethnic groups, students with disabilities, and students with limited English proficiency;
(7) Establish a starting point;
(8) Create a timeline to ensure that all students are proficient by the 2013-2014 school year;
(9) Establish annual measurable objectives;
(10) Establish intermediate goals;
(11) Include at least one other academic indicator which, for any school with a 12th grade, must be graduation rate; and
(12) Ensure that at least 95 percent of the students enrolled in each group under § 30.107(b)(6) are assessed.
(c) If a Bureau-funded school's alternative definition of AYP does not use a State's academic content and student achievement standards and academic assessments, the school must include with its alternative definition the academic standards and assessment it proposes to use. These standards and assessments must meet the requirements in 20 U.S.C. 6311(b) and 34 CFR 200.1-200.9.
(d) The measurement must include graduation rates and at least one other academic indicator for schools that do not have a 12th grade (but may include more than one other academic indicator).
The words of the statute in 1116(g) state that the Secretary of the Interior, “in consultation with the Secretary if the Secretary of the Interior requests the consultation, shall approve such alternative definition unless the Secretary determines that the definition does not meet the requirements of section 1111(b), that takes into account the unique circumstances and needs of such school or schools and the students served.” While this language is admittedly cumbersome, three fundamental principles compel the approach we strongly request DOI to take:
When the Committee convened to review the comments, tribal members expressed concerns that the Federal members engaged in this dialogue with the Department of Education and that the Federal team was prepared to withhold consensus for any other result. Consequently, the Committee could not reach consensus on whether to consider the Department of Education's comments. Thus, the final rule has adopted certain Department of Education comments and revised § 30.113(d) through (h) to read:
(d) The Secretaries review the proposed alternative definition of AYP to determine whether it is consistent with the requirements of 20 U.S.C. 6311(b). This review must take into account the unique circumstances and needs of the schools and students.
(e) The Secretaries shall approve the alternative definition of AYP if it is consistent with the requirements of 20 U.S.C. 6311(b), taking into consideration the unique circumstances and needs of schools and students.
(f) If the Secretaries approve the alternative definition of AYP:
(1) The Secretary shall promptly notify the tribal governing body or school board; and
(2) The alternate definition of AYP will become effective at the start of the following school year.
(g) The Secretaries will disapprove the alternative definition of AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). If the alternative definition is disapproved, the tribal governing body or school board will be notified of the following:
(1) That the definition is disapproved; and
(2) The reasons why the proposed alternative definition does not meet the requirements of 20 U.S.C. 6311(b).
(h) If the Secretaries deny a proposed definition under paragraph (g) of this section, they shall provide technical assistance to overcome the basis for the denial.
The Act requires designated separate geographic boundaries for all Bureau-funded schools and provides for tribes to have input into the process. This part provides guidance and clarifies what roles tribes have in establishing and revising geographic attendance boundaries for schools. It also clarifies some of the limitations on the Secretary's ability to change school boundaries. It recognizes distinctions for different boundary determinations for day schools, on-reservation boarding schools, and peripheral dorms and for off-reservation boarding schools. The rule provides guidance applicable to both types of schools, where appropriate (subpart A) and provides separate guidance for each type of school, where appropriate (day schools, on-reservation boarding schools, and peripheral dorms—subpart B and off-reservation boarding schools B subpart C). This part is intended to give tribes the opportunity to meaningfully participate in all decisions regarding attendance boundaries and related policies where not statutorily prohibited.
Several commenters approve of provisions of the rule that allow tribal entities to work collaboratively with Bureau-funded schools when geographic boundaries are determined or revised and that provide for assistance from the Department if tribes need assistance. Several commenters agree with the rule provision that tribes have ongoing authority to suggest changes to and participate in the revision of geographic attendance boundaries for schools. Some comments support the flexibility for allowing students to attend schools outside their geographic attendance boundaries. One commenter noted that rights in the rule are rights recognized pursuant to reserved tribal authority stemming from treaties between the United States and tribes. Some commenters to this part in the NPRM preamble disagree with allowing parental choice (which was not included in the final rule). One commenter stated that the Bureau can and must withhold payment from a school when a student who does not live within the school geographic attendance boundary has not received a waiver in accordance with tribal law.
The commenters also felt that, after collecting this data:
Several commenters shared the concern that current Bureau funding is insufficient in many areas, and that merely revising the distribution method is inadequate. What should have happened was a redistribution to concentrate funding where it is needed combined with additional funding to support the Act's mandates.
Another commenter suggested providing recurring funding to support educational services to pre-K students. One Commenter suggested that special circumstances, such as the therapeutic dormitory pilot project, should be included in the ISEP base. These comments also included a comment that another funding mechanism is needed to fund non-ISEP eligible students for distance and alternative learning and expressed disappointment that the funding formula did not take into account greater lengths of service of employees. Schools incur increased costs with employees who have greater lengths of service. Several commenters also were disappointed that the formula does not provide funding for after school programs.
The Federal team decided that additional information is needed to determine if modifications are necessary to the 15 percent set-aside. The Committee recommends that additional information be gathered regarding the number of ISEP eligible students who are identified as disabled and who are receiving special education services, and other related information. If the information collected reveals that the 15 percent set-aside does not accurately reflect the percentage of ISEP eligible students with disabilities in the Bureau-funded school system, then the Committee recommends that a negotiated rulemaking committee negotiate revised special education funding regulations.
(1) The definition of “agency” should be changed so it reflects what an agency does because it does not always provide services to governing bodies;
(2) The definition of “agency school board” is not necessary because they have no duties or responsibilities under ISEP;
(3) The definitions need to clarify whether a school counts non-ISEP students for ADM;
(4) The definition of “Individual Supplemental Services” should include SPED since schools are required to spend ISEP funds for SPED services and
(5) The “Limited English Proficiency” definition is too lengthy and should consist only of paragraph (3) because ISEP only deals with American Indians;
(6) The definition of “eligible Indian student” should be revised to establish an upper age limit for eligibility for ISEF funding;
(7) The “homebound” definition should require enrollment in a Bureau school, since a homebound student can qualify for ISEF and ADM count if he/she received the minimum level of contact hours; Suggested definition: “Homebound” means a student who is enrolled in a Bureau-funded school and is educated outside the classroom”; and
(8) The definition of “Local School Board” does not track the definition of that term in the Act and should read: “Local School Board,” when used with respect to a Bureau school, means a body chosen in accordance with the laws of the tribe.”
(1) The school can document that it has met all needs of students with disabilities with those funds; and
(2) After having done so, there are unspent funds remaining from the funds.
Comments: A commenter suggested clarification was needed on who makes the determination that schools have demonstrated that the reserved ISEP funds are inadequate to pay for additional SPED services and what criteria are used.
Other commenters suggested that school personnel costs and the cost of living should be taken into consideration and that all children should be funded equally. No child should be funded less than another child. The WSU for K-12 should be the same 1.5 WSU, especially for K's. The young children need more supervision, small classes, and therefore should not be only 1.15 WSU. This grade needs a teacher and an aide. Especially since the proposed WSU for intense bilingual is planned to be decreased to .13 WSU and all children will be eligible, this decrease will greatly impact our kindergarten program if the intense bilingual is decreased and the kindergarten grade WSU is the same. This should also apply to residential; the WSU should be the same for all grades.
Another commenter suggested that it can be predicted that the gifted and talented program will grow by anywhere from 10-20 percent from current levels and such growth could create an impact in excess of $20 million that will affect only residential programs.
Another commenter suggested that the “gifted programs have always used the idea of giftedness from the dominant culture, the Native ideas of giftedness have not been readily considered.” It is important that Bureau schools make the proper assessment of giftedness, but whose definition is being used? Tribal leaders, parents, and the community should be involved in the process of defining gifted. The idea of placing a cap on the number of gifted students is not an option but rather an evaluation of what gifted means to the Native person and how that differs from the mainstream society. It should not be easy to get into the gifted program with the Bureau, but rather the school and community should give a clear demonstration of giftedness and how the school can support and advance the giftedness of the student in whatever ways appropriate.
Other commenters suggested that the weighted student unit (WSU) for the gifted and talented program should be the same for all grades K-12 at .5 or .62 WSU. One commenter suggested that a discrepancy exists because of the low cap placed on measurable giftedness and the high cap on subjective giftedness. Nationwide, gifted talented student identification averages between 10-15 percent. In the recommended rules, giftedness can easily run in excess of 50 percent. Anything categorized above 50 percent should be considered the base program and curriculum should be adjusted accordingly.
Several commenters also suggested imposing a cap on gifted and talented that is no greater than the national average in any given year.
Another commenter suggested that the tribe supports the proposed rule on Language Development programs, particularly the parts that seek to ensure the goal of infusing Native language and culture in to school curricula. However, the tribe does not agree with using ISEP funds to support Language Development programs for Native students who are predominantly ELL learners or are limited English language proficient as ISEP funds should be used generally for all school programs. Instead, funding for Language Development and ELL students should be provided for separately and the WSU be appropriated at 0.25 based on this new definition. The tribe expects Bureau to seek specific appropriations from Congress to support Native Language development curricula.
Another commenter suggested this section places a limit on the amount of future Congressional appropriations that can be appropriated for Native language programs. The statute on which this section is based also seems indecipherable. It is not clear that this rule captures the meaning of the statutory provision, whatever it may be.
How does OIEP calculate a school's total WSU for the school year? OIEP will add the weights obtained from the calculations in paragraphs (1), (2), and (3) of this section to obtain the total weighted student units (WSUs) for each school.
(1) Each year's ADM is multiplied by the applicable weighted student unit for each grade level;
(2) Calculate any supplemental WSU generated by the students; and
(3) Calculate any supplemental WSU generated by the schools.
The total WSU for the school year is the sum of (1), (2), and (3). The method for calculating the three-year averages WSU is illustrated in a table.
To determine a school's funding for the school year, OIEP uses the following seven-step process:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Another suggestion asked this question about paragraph (b): This paragraph requires at least 10 percent of the students in a residential program to be in the dormitory 3 of the 4 weekends during the count period. Is this correctly stated or should it read, “2 of the 3 weekends during the count period?”
Another commenter suggested the different treatment for dormitories that are open 5, 6, or 7 days from those open 4 nights a week will likely have the effect of more dormitories staying open on weekends or at least, being open on Sunday evening for returning students. The effect of this change will be a shift of funding from day schools to boarding schools. Even within boarding schools, a greater portion of costs will shift to residential programs and away from instruction.
Another commented that the last sentence relates to verification of the residential count. Verification of the count for the count period makes sense, but there is no statement when that verification will occur. Since the regulations do not establish a time for submitting the residential count, it is impossible to tell when the verification will take place. Also, what method and frequency will the ELO use to verify residence during the remainder of the year?
What transportation information must off-reservation boarding schools report?
(a) Each off reservation boarding school that provides transportation must report annually the information required by this section. The report must:
(1) Be submitted to OIEP by August 1 and cover the preceding school year;
(2) Include a Charter/Commercial and Air Transportation Form signed and certified as complete and accurate by the School Principal and appropriate ELO; and
(3) Include the information required by paragraph (b) of this section.
(b) Each annual transportation report must include the following information:
(1) Fixed vehicle costs, including: the number and type of busses, passenger size and local GSA rental rate and duration of GSA contract;
(2) Variable vehicle costs;
(3) Mileage traveled to transport students to and from school on school days, to sites of special services, and to extra-curricular activities;
(4) Medical trips;
(5) Maintenance and Service costs;
(6) Driver costs; and
(7) All expenses referred to in § 39.707.
(b) Step 2. Subtract the average specific Federal share per student (title I part A and IDEA, part B) of the total revenue for Bureau-funded elementary schools for the last school year for which data is available as reported by NCES (15 percent)
(c) Step 3. Subtract the administrative cost grant/agency area technical services revenue per student as a percentage of the total revenue and current expenditures of Bureau-funded schools from the last year data that is available
(d) Step 4. Subtract the day transportation revenue per student as a percentage of the total revenue (current revenue) Bureau-funded schools for the last school year, for which the date is available.
The process described in § 39.804 is illustrated in the table below, using figures for the 1999-2000 school year:
25 U.S.C. 2016 requires the Secretary to prescribe rules to ensure the Constitutional and civil rights of Indian students attending Bureau-funded schools, including rights to privacy, freedom of religion and expression, and due process in connection with disciplinary actions, suspension, and expulsion. As was the case with the proposed rule, the intent of this final rule is to provide minimum requirements for fulfilling due process and student rights obligations owed to students while allowing schools to provide for higher requirements and to develop their own processes for handling violations of school policies, including alternative dispute resolution where appropriate. The final rule changes the proposed rule by including a new section on when a formal disciplinary hearing is required.
Part 44 provides rules to comply with 25 U.S.C. 2501
A grant can be terminated only by one of the following methods:
(a) Retrocession;
(b) Revocation of eligibility by the Secretary; or
(c) Reassumption by the Secretary.
25 U.S.C. 2010 requires the Secretary to establish by regulation a system for the direct funding and support of all Bureau-funded schools that allots funds under 25 U.S.C. 2007. The existing rule in 25 CFR 39.50 adequately covered this issue and it was edited for plain language with no substantive changes for the proposed rule. There are no substantive changes to the final rule.
This document is a significant rule and the Office of Management and Budget (OMB) has reviewed this rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule deals exclusively with student rights, does not pertain to funding, and is not expected to have an effect on budgets.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule has been prepared in consultation with the Department of Education.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule spells out student rights, the procedures for their dissemination, and the procedures for implementing them. The rule does not pertain to funding and is not expected to have an effect on budgets.
(4) This rule raises novel legal or policy issues. The rule proposes entirely new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(1) Does not have an annual effect on the economy of $100 million or more on budgets.
(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy. The rule does not pertain to funding and is not expected to have an effect on budgets. The rule is not expected to have a perceptible effect on costs or prices.
(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule proposes new procedures related to determining adequate yearly progress, school boundaries, funding, and other issues. It also updates existing procedures addressing student rights and adapts the existing rules to comply with current law and policy. The procedures for dissemination of student rights through student handbooks are consistent with current practices. The procedures for implementing student rights through hearings and alternative dispute resolution processes are consistent with current practices. The rule is not expected to mandate additional costs on tribal governments.
In accordance with Executive Order 12630, the rule does not have significant takings implications. Nothing in the rule proposes rules of private property rights, constitutional or otherwise, or invokes the Federal condemnation power or alters any use of Federal land held in trust. The focus of this rule is civil rights and due process rights. A takings implication assessment is not required.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Nothing in this rule has 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. This rule does not implicate State government. Similar to federalist concepts, this rule leaves to local school board discretion those issues of student civil rights and due process that can be left for local school boards to address. A Federalism Assessment is not required.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with Executive Order 13175, we have identified potential effects on federally recognized Indian tribes that will result from this rule. This rule will require tribally operated schools to observe student rights and procedures spelled out in the rule. Accordingly:
(1) We have consulted with the affected tribes on a government-to-government basis. The consultations have been open and candid to allow the affected tribes to fully evaluate the potential effect of the rule on trust resources.
(2) We have fully considered tribal views.
(3) We have consulted with the Office of Indian Education Programs and the Office of the Assistant Secretary—Indian Affairs have been consulted about the political effects of this rule on Indian tribes.
This rulemaking requires information collection from 10 or more parties and a submission under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The information collected will be used to enable the Bureau to better administer Bureau-funded schools subject to this rulemaking. In all instances, the Department has striven to lessen the burden on the public and ask for only information essential to administering the programs affected and to carrying out the Department's fiduciary responsibility to federally recognized tribes. The public may make additional comments on the accuracy of our burden estimates (which are explained in detail in the preamble to the proposed rule published on February 25, 2004, at 69 FR 8752) and any suggestions for reducing this burden to the OMB Interior Desk Officer, Docket Number 1076-AE49, Office of Information and Regulatory Affairs, 202/395-6566 (facsimile); e-mail:
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required.
Elementary and secondary education programs, Government programs—education, Grant programs—Indians, Indians—education, Schools.
Elementary and secondary education programs, Indians—education, Schools, Students.
Public Law 107-110, 115 Stat. 1425.
This part establishes for schools receiving Bureau funding a definition of “Adequate Yearly Progress (AYP).” Nothing in this part:
(a) Diminishes the Secretary's trust responsibility for Indian education or any statutory rights in law;
(b) Affects in any way the sovereign rights of tribes; or
(c) Terminates or changes the trust responsibility of the United States to Indian tribes or individual Indians.
Yes, the Act requires the Secretary to develop a definition of AYP through negotiated rulemaking. In developing the Secretary's definition of AYP, the No Child Left Behind Negotiated Rulemaking Committee (Committee) considered a variety of options. In choosing the definition in § 30.104, the Committee in no way intended to diminish the Secretary's trust responsibility for Indian education or any statutory rights in law. Nothing in this part:
(a) Affects in any way the sovereign rights of tribes; or
(b) Terminates or changes the trust responsibility of the United States to Indian tribes or individual Indians.
Yes, the Committee considered having the Bureau of Indian Affairs develop a separate Bureau definition of AYP. For a variety of reasons, the Committee reached consensus on the definition in § 30.104. This definition is in no way intended to diminish the United States' trust responsibility for Indian education nor is it intended to give States authority over Bureau-funded schools.
The Secretary defines AYP as follows. The definition meets the requirements in 20 U.S.C. 6311(b).
(a) Effective in the 2005-2006 school year, the academic content and student achievement standards, assessments, and the definition of AYP are those of the State where the school is located, unless an alternative definition of AYP is proposed by the tribal governing body or school board and approved by the Secretary.
(1) If the geographic boundaries of the school include more than one State, the tribal governing body or school board may choose the State definition it desires. Such decision shall be communicated to the Secretary in writing.
(2) This section does not mean that the school is under the jurisdiction of the State for any purpose, rather a reference to the State is solely for the purpose of using the State's assessment, academic content and student achievement standards, and definition of AYP.
(3) The use of the State's definition of AYP does not diminish or alter the Federal Government's trust responsibility for Indian education.
(b) School boards or tribal governing bodies may seek a waiver that may include developing their own definition of AYP, or adopting or modifying an existing definition of AYP that has been accepted by the Department of Education. The Secretary is committed to providing technical assistance to a school, or a group of schools, to develop an alternative definition of AYP.
Yes. A tribal governing body or school board may waive all or part of the Secretary's definition of academic content and achievement standards, assessments, and AYP. However, unless an alternative definition is approved under § 30.113, the school must use the Secretary's definition of academic content and achievement standards, assessments, and AYP.
If a tribal governing body or school board decides that the definition of AYP in § 30.104 is inappropriate, it may decide to waive all or part of the definition. Within 60 days of the decision to waive, the tribal governing body or school board must submit to the Secretary a proposal for an alternative definition of AYP. The proposal must meet the requirements of 20 U.S.C. 6311(b) and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and the students served.
(a) An alternative definition of AYP must meet the requirements of 20 U.S.C. 6311(b)(2) of the Act and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and the students served.
(b) In accordance with 20 U.S.C. 6311(b) of the Act and 34 CFR 200.13-200.20, an alternative definition of AYP must:
(1) Apply the same high standards of academic achievement to all students;
(2) Be statistically valid and reliable;
(3) Result in continuous and substantial academic improvement for all students;
(4) Measure the progress of all students based on a high-quality assessment system that includes, at a minimum, academic assessments in mathematics and reading or language arts;
(5) Measure progress separately for reading or language arts and for mathematics;
(6) Unless disaggregation of data cannot yield statistically reliable information or reveals personally identifiable information, apply the same annual measurable objectives to each of the following:
(i) The achievement of all students; and
(ii) The achievement of economically disadvantaged students, students from major racial or ethnic groups, students with disabilities, and students with limited English proficiency;
(7) Establish a starting point;
(8) Create a timeline to ensure that all students are proficient by the 2013-2014 school year;
(9) Establish annual measurable objectives;
(10) Establish intermediate goals;
(11) Include at least one other academic indicator which, for any school with a 12th grade, must be graduation rate; and
(12) Ensure that at least 95 percent of the students enrolled in each group under § 30.107(b)(6) are assessed.
(c) If a Bureau-funded school's alternative definition of AYP does not use a State's academic content and student achievement standards and academic assessments, the school must include with its alternative definition the academic standards and assessment it proposes to use. These standards and assessments must meet the requirements in 20 U.S.C. 6311(b) and 34 CFR 200.1-200.9.
Yes, a tribal governing body or school board may take part of the Secretary's definition and propose to waive the remainder. The proposed alternative definition of AYP must, however, include both the parts of the Secretary's AYP definition the tribal governing body or school board is adopting and those parts the tribal governing body or school board is proposing to change.
Yes, the Secretary through the Bureau, shall provide technical assistance either directly or through contract to the tribal governing body or the school board in developing an alternative AYP definition. A tribal governing body or school board needing assistance must submit a request to the Director of OIEP under § 30.110. In providing assistance, the Secretary may consult with the Secretary of Education and may use funds supplied by the Secretary of Education in accordance with 20 U.S.C. 7301.
(a) The tribal governing body or school board requesting technical assistance to develop an alternative definition of AYP must submit a written request to the Director of OIEP, specifying the form of assistance it requires.
(b) The Director of OIEP must acknowledge receipt of the request for technical assistance within 10 days of receiving the request.
(c) No later than 30 days after receiving the original request, the Director of OIEP will identify a point of contact. This contact will immediately begin working with the tribal governing body or school board to jointly develop the specifics of the technical assistance, including identifying the form, substance, and timeline for the assistance.
In order to maximize the time the tribal governing body or school board has to develop an alternative definition of AYP and to provide full opportunity for technical assistance, the tribal governing body or school board should request technical assistance before formally notifying the Secretary of its intention to waive the Secretary's definition of AYP.
(a) The tribal governing body or school board submits a proposed alternative definition of AYP to the Director, OIEP within 60 days of its decision to waive the Secretary's definition.
(b) Within 60 days of receiving a proposed alternative definition of AYP, OIEP will notify the tribal governing body or the school board of:
(1) Whether the proposed alternative definition is complete; and
(2) If the definition is complete, an estimated timetable for the final decision.
(c) If the proposed alternative definition is incomplete, OIEP will provide the tribal governing body or school board with technical assistance to complete the proposed alternative definition of AYP, including identifying what additional items are necessary.
(d) The Secretaries will review the proposed alternative definition of AYP to determine whether it is consistent with the requirements of 20 U.S.C. 6311(b). This review must take into account the unique circumstances and needs of the schools and students.
(e) The Secretaries shall approve the alternative definition of AYP if it is consistent with the requirements of 20 U.S.C. 6311(b), taking into consideration the unique circumstances and needs of the school or schools and the students served.
(f) If the Secretaries approve the alternative definition of AYP:
(1) The Secretary shall promptly notify the tribal governing body or school board; and
(2) The alternate definition of AYP will become effective at the start of the following school year.
(g) The Secretaries will disapprove the alternative definition of AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). If the alternative definition is disapproved, the tribal governing body or school board will be notified of the following:
(1) That the definition is disapproved; and
(2) The reasons why the proposed alternative definition does not meet the requirements of 20 U.S.C. 6311(b).
(h) If the Secretaries deny a proposed definition under paragraph (g) of this section, they shall provide technical assistance to overcome the basis for the denial.
All students in grades three through eight and at least once in grades ten through twelve who are enrolled in a Bureau-funded school must be assessed.
The performance data of all students assessed pursuant to § 30.114 must be included for purposes of AYP if the student is enrolled in a Bureau-funded school for a full academic year as defined by the Secretary or by an approved alternative definition of AYP.
A school makes AYP if each group of students identified in § 30.107(b)(6) meets or exceeds the annual measurable objectives and participation rate identified in §§ 30.107(b)(9) and 30.107(b)(12) respectively, and the school meets the other academic indicators identified in § 30.107(b)(11). If a school fails to achieve its annual measurable objectives for any group identified in § 30.107(b)(6), there are two other methods it may use to determine whether it made AYP:
(a)
(1) In each group that does not achieve the school's annual measurable objectives, the percentage of students who were below the “proficient” level of academic achievement decreased by at least 10 percent from the preceding school year; and
(2) The students in that group made progress on one or more of the other academic indicators; and
(3) Not less than 95 percent of the students in that group participated in the assessment.
(b)
Yes. The Bureau must give such a school the opportunity to review the data on which the bureau would identify a school for improvement, and present evidence as set out in 20 U.S.C. 6316(b)(2).
(a) For a Bureau-operated school, implementation of remedial actions is the responsibility of the Bureau.
(b) For a tribally operated contract school or grant school, implementation of remedial actions is the responsibility of the school board of the school.
Yes, Bureau-funded schools are exempt from offering public school choice and supplemental educational services when identified for school improvement, corrective action, and restructuring.
From fiscal year 2004 to fiscal year 2007, the Bureau will reserve 4 percent of its title I allocation to assist Bureau-funded schools identified for school improvement, corrective action, and restructuring.
(a) The Bureau will allocate at least 95 percent of funds under this section to Bureau-funded schools identified for school improvement, corrective action, and restructuring to carry out those schools' responsibilities under 20 U.S.C. 6316(b). With the approval of the school board the Bureau may directly provide for the remedial activities or arrange for their provision through other entities such as school support teams or educational service agencies.
(b) In allocating funds under this section, the Bureau will give priority to schools that:
(1) Are the lowest-achieving schools;
(2) Demonstrate the greatest need for funds; and
(3) Demonstrate the strongest commitment to ensuring that the funds enable the lowest-achieving schools to meet progress goals in the school improvement plans.
(c) Funds reserved under this section must not decrease total funding under title I, part A of the Act, for any school below the level for the preceding year. To the extent that reserving funds under this section would reduce the title I, part A dollar amount of any school
(d) The Bureau will publish in the
Yes, if a Bureau-funded school is identified for school improvement, corrective action, or restructuring, the Bureau must provide technical or other assistance described in 20 U.S.C. 6316(b)(4) and 20 U.S.C. 6316(g)(3) .
The Bureau must provide support to all Bureau-funded schools to assist them in achieving AYP. This includes technical assistance and other forms of support.
Yes, to the extent that Congress appropriates other funds to assist schools not meeting AYP, the Bureau will apply to the Department of Education for these funds.
(a) The Department will work directly with State officials to assist schools in obtaining access to the State's assessment. This can include direct communication with the Governor of the State. A Bureau-funded school may, if necessary, pay a State for access to its assessment tools and scoring services.
(b) If a State does not provide access to the State's assessment, the Bureau-funded school must submit a waiver for an alternative definition of AYP.
The Bureau has the following reporting responsibilities to the Department of Education, appropriate Committees of Congress, and the public.
(a) In order to provide information about annual progress, the Bureau must obtain from all Bureau-funded schools the results of assessments administered for all tested students, special education students, students with limited English proficiency, and disseminate such results in an annual report.
(b) The Bureau must identify each school that did not meet AYP in accordance with the school's AYP definition.
(c) Within its annual report to Congress, the Secretary shall include all of the reporting requirements of 20 U.S.C. 6316(g)(5).
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Public Law 107-110, 115 Stat. 1425.
(a) This part:
(1) Establishes procedures for confirming, establishing, or revising attendance areas for each Bureau-funded school;
(2) Encourages consultation with and coordination between and among all agencies (school boards, tribes, and others) involved with a student's education; and
(3) Defines how tribes may develop policies regarding setting or revising geographic attendance boundaries, attendance, and transportation funding for their area of jurisdiction.
(b) The goals of the procedures in this part are to:
(1) Provide stability for schools;
(2) Assist schools to project and to track current and future student enrollment figures for planning their budget, transportation, and facilities construction needs;
(3) Adjust for geographic changes in enrollment, changes in school capacities, and improvement of day school opportunities; and
(4) Avoid overcrowding or stress on limited resources.
This part is divided into three subparts. Subpart A applies to all Bureau-funded schools. Subpart B applies only to day schools, on-reservation boarding schools, and peripheral dorms—in other words, to all Bureau-funded schools except off-reservation boarding schools. Subpart C applies only to off-reservation boarding schools (ORBS).
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Tribal governing body or the Secretary determines geographic attendance areas.
A tribal governing body may:
(a) Establish and revise geographical attendance boundaries for all but ORB schools;
(b) Authorize ISEP-eligible students, residing within the tribe's jurisdiction, to receive transportation funding to attend schools outside the geographic attendance area in which the student lives; and
(c) Authorize tribal member students who are ISEP-eligible and are not residing within the tribe's jurisdiction to receive transportation funding to attend schools outside the student's geographic attendance area.
Yes. The Secretary must ensure that each school has a geographic attendance area boundary.
The currently established geographic attendance boundaries of day schools, on-reservation boarding schools, and peripheral dorms remain in place unless the tribal governing body revises them.
(a) If there is only one day school, on-reservation boarding school, or peripheral dorm within a reservation's boundaries, the Secretary will establish the reservation boundary as the geographic attendance boundary;
(b) When there is more than one day school, on-reservation boarding school, or peripheral dorm within a reservation boundary, the Tribe may choose to establish boundaries for each;
(c) If a Tribe does not establish boundaries under paragraph (b) of this section, the Secretary will do so.
(a) The Secretary can change the geographic attendance boundaries of a day school, on-reservation boarding school, or peripheral dorm only after:
(1) Notifying the Tribe at least 6 months in advance; and
(2) Giving the Tribe an opportunity to suggest different geographical attendance boundaries.
(b) A tribe may ask the Secretary to change geographical attendance boundaries by writing a letter to the Director of the Office of Indian Education Programs, explaining the tribe's suggested changes. The Secretary must consult with the affected tribes before deciding whether to accept or reject a suggested geographic attendance boundary change.
(1) If the Secretary accepts the Tribe's suggested change, the Secretary must publish the change in the
(2) If the Secretary rejects the Tribe's suggestion, the Secretary will explain in writing to the Tribe why the suggestion either:
(i) Does not meet the needs of Indian students to be served; or
(ii) Does not provide adequate stability to all affected programs.
(a) The Tribal governing body establishes a process for developing proposed boundaries or boundary changes. This process may include consultation and coordination with all entities involved in student education.
(b) The Tribal governing body may delegate the development of proposed boundaries to the relevant school boards. The boundaries set by the school boards must be approved by the Tribal governing body.
(c) The Tribal governing body must send the proposed boundaries and a copy of its approval to the Secretary.
Geographic attendance boundaries for a new day school, on-reservation boarding school, or peripheral dorm must be established by either:
(a) The tribe; or
(b) If the tribe chooses not to establish boundaries, the Secretary.
Yes. An eligible student living off a reservation can attend a day school, on-reservation boarding school, or peripheral dorm.
The Secretary or the Secretary's designee, in consultation with the affected Tribes, establishes the boundaries for off-reservation boarding schools (ORBS).
Any student is eligible to attend an ORBS.
25 U.S.C. 13, 2008; Public Law 107-110, 115 Stat. 1425.
This part provides for the uniform direct funding of Bureau-operated and tribally operated day schools, boarding schools, and dormitories. This part applies to all schools, dormitories, and administrative units that are funded through the Indian School Equalization Program of the Bureau of Indian Affairs.
(1) Bureau school;
(2) A contract or grant school; or
(3) A school for which assistance is provided under the Tribally Controlled Schools Act of 1988.
(1) Is a member of, or is at least one-fourth degree Indian blood descendant of a member of, a tribe that is eligible for the special programs and services provided by the United States through the Bureau of Indian Affairs to Indians because of their status as Indians;
(2) Resides on or near a reservation or meets the criteria for attendance at a Bureau off-reservation home-living school; and
(3) Is enrolled in a Bureau-funded school.
(1) The child was born outside of the United States or the child's Native language is not English;
(2) The child comes from an environment where a language other than English is dominant; or
(3) The child is an American Indian or Alaska Native and comes from an environment where a language other than English has had a significant impact on the child's level of English language proficiency.
(1) The members of the local school board shall be appointed by the tribal governing bodies affected; and
(2) The Secretary shall determine number of members in consultation with the affected tribes.
(1) A member of the instructional program in the same boarding school in which the student is counted as a resident; or
(2) Enrolled in and a current member of a public school or another Bureau-funded school.
(1) Enrolled in and are current members of a public school or Bureau-funded school; or
(2) Members of the instructional program in the same boarding school in which they are counted as residents and:
(i) Are officially enrolled in the residential program of a Bureau-operated or -funded school; and
(ii) Are actually receiving supplemental services provided to all students who are provided room and
(1) Used to transport day students to and/or from home and the school; and
(2) Operated by an operator in the employ of, or under contract to, a Bureau-funded school, who is qualified to operate such a vehicle under Tribal, State or Federal regulations governing the transportation of students.
(1) Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including:
(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the requirements of paragraph (1) of this definition:
(i) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards;
(1) Travel training; and
(2) Vocational education.
(1) To address the unique needs of the child that result from the child's disability; and
(2) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children
(1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
(2) For the residential programs, the count period membership of the 3 years before the current year of operation.
(1) Develop an awareness of the environment in which they live; and
(2) Learn the skills necessary to move efficiently and safely from place to place within that environment (
(1) The measure of student membership adjusted by the weights or ratios used as factors in the Indian School Equalization Formula; and
(2) The factor used to adjust the weighted student count at any school as the result of other adjustments made under this part.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Indian School Equalization Formula (ISEF) was established to allocate Indian School Equalization Program (ISEP) funds. OIEP applies ISEF to determine funding allocation for Bureau-funded schools as described in §§ 39.204 through 39.206.
No. ISEF does not attempt to assess the actual cost of school operations either at the local level or in the aggregate at the national level. ISEF provides a method of distribution of funds appropriated by Congress for all schools.
Academic base funding is the ADM times the weighted student unit.
To determine base funding, schools must use the factors shown in the following table. The school must apply the appropriate factor to each student for funding purposes.
(a) Each school must provide for students with disabilities by:
(1) Reserving 15 percent of academic base funding to support special education programs; and
(2) Providing resources through residential base funding to meet the needs of students with disabilities under the National Criteria for Home-Living Situations.
(b) A school may spend all or part of the 15 percent academic base funding reserved under paragraph (a)(1) of this section on school-wide programs to benefit all students (including those without disabilities) only if the school can document that it has met all needs of students with disabilities with such funds, and after having done so, there are unspent funds remaining from such funds.
(a) Schools may supplement the 15 percent base academic funding reserved under § 39.104 for special education with funds available under part B of the Individuals with Disabilities Education Act (IDEA). To obtain part B funds, the
(b) The Bureau will facilitate the delivery of IDEA part B funding by:
(1) Providing technical assistance to schools in completing the application for the funds; and
(2) Providing training to Bureau staff to improve the delivery of part B funds.
To receive ISEP special education funding, a student must be under 22 years old and must not have received a high school diploma or its equivalent on the first day of eligible attendance. The following minimum age requirements also apply:
(a) To be counted as a kindergarten student, a child must be at least 5 years old by December 31; and
(b) To be counted as a first grade student; a child must be at least 6 years old by December 31.
Yes, schools are allotted supplemental funds for special student and/or school costs. ISEF provides additional funds to schools through add-on weights (called special cost factors). ISEF adds special cost factors as shown in the following table.
Yes, ISEF funds can be distributed for the provision of services for gifted and talented students.
The term gifted and talented means students, children, or youth who:
(a) Give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic fields; and
(b) Need services or activities not ordinarily provided by the school in order to fully develop those capabilities.
There is no limit on the number of students that a school can classify as gifted and talented.
If a school identifies more than 13 percent of its student population as gifted and talented the Bureau will immediately audit the school's gifted and talented program to ensure that all identified students:
(a) Meet the gifted and talented requirement in the regulations; and
(b) Are receiving gifted and talented services.
To be funded as gifted and talented under this part, a student must be identified as gifted and talented in at least one of the following areas.
(a)
(b)
(c)
(d)
(e)
(a) Screening can be completed annually to identify potentially eligible students. A student may be nominated for gifted and talented designation using the criteria in § 39.114 by any of the following:
(1) A teacher or other school staff;
(2) Another student;
(3) A community member;
(4) A parent or legal guardian; or
(5) The student himself or herself.
(b) Students can be nominated based on information regarding the student's abilities from any of the following sources:
(1) Collections of work;
(2) Audio/visual tapes;
(3) School grades;
(4) Judgment of work by qualified individuals knowledgeable about the student's performances (
(5) Interviews or observations; or
(6) Information from other sources.
(c) The school must have written parental consent to collect documentation of gifts and talents under paragraph (b) of this section.
(a) To determine who receives gifted and talented funding, the school must use qualified professionals to perform a multi-disciplinary assessment. The assessment may include the examination of work samples or performance appropriate to the area under consideration. The school must have the parent or guardian's written permission to conduct individual assessments or evaluations. Assessments under this section must meet the following standards:
(1) The assessment must use assessment instruments specified in § 39.114 for each of the five criteria for which the student is nominated;
(2) If the assessment uses a multi-criteria evaluation, that evaluation must be an unbiased evaluation based on student needs and abilities;
(3) Indicators for visual and performing arts and leadership may be determined based on national, regional, or local criteria; and
(4) The assessment may use student portfolios.
(b) A multi-disciplinary team will review the assessment results to determine eligibility for gifted and talented services. The purpose of the team is to determine eligibility and placement to receive gifted and talented services.
(1) Team members may include nominator, classroom teacher, qualified professional who conducted the assessment, local experts as needed, and other appropriate personnel such as the principal and/or a counselor.
(2) A minimum of three team members is required to determine eligibility.
(3) The team will design a specific education plan to provide gifted and talented services related in the areas identified.
Gifted and talented services are provided through or under the supervision of highly qualified professional teachers. To provide gifted and talented services for a student, a school must take the steps in this section.
(a) The multi-disciplinary team formed under § 39.116(b) will sign a statement of agreement for placement of services based on documentation reviewed.
(b) The student's parent or guardian must give written permission for the student to participate.
(c) The school must develop a specific education plan that contains:
(1) The date of placement;
(2) The date services will begin;
(3) The criterion from § 39.114 for which the student is receiving services and the student's performance level;
(4) Measurable goals and objectives; and
(5) A list of staff responsible for each service that the school is providing.
For each student receiving gifted and talented services, the school must conduct a yearly evaluation of progress, file timely progress reports, and update the specific education plan.
(a) If a school identifies a student as gifted and talented based on § 39.114 (a), (b), or (c), then the student does not need to reapply for the gifted and talented program. However, the student must be reevaluated at least every 3 years through the 10th grade to verify eligibility for funding.
(b) If a school identifies a student as gifted and talented based on § 39.114 (d) or (e), the student must be reevaluated annually for the gifted and talented program.
A student must leave the gifted and talented program when either:
(a) The student has received all of the available services that can meet the student's needs;
(b) The student no longer meets the criteria that have qualified him or her for the program; or
(c) The parent or guardian removes the student from the program.
In providing services under this section, the school must:
(a) Provide a variety of programming services to meet the needs of the students;
(b) Provide the type and duration of services identified in the Individual Education Plan established for each student; and
(c) Maintain individual student files to provide documentation of process and services; and
(d) Maintain confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA).
The WSU for a gifted and talented student is the base academic weight (see § 39.103) subtracted from 2.0. The following table shows the gifted and talented weights obtained using this procedure.
Yes, schools can use ISEF funds to implement Language Development programs that demonstrate the positive effects of Native language programs on students' academic success and English proficiency. Funds can be distributed to a total aggregate instructional weight of 0.13 for each eligible student.
A Language Development program is one that serves students who either:
(a) Are not proficient in spoken or written English;
(b) Are not proficient in any language;
(c) Are learning their Native language for the purpose of maintenance or language restoration and enhancement;
(d) Are being instructed in their Native language; or
(e) Are learning non-language subjects in their Native language.
A school may offer Language Development programs to students as part of its regular academic program. Language Development does not have to be offered as a stand-alone program.
Tribal governing bodies or local school boards decide how their funds for Language Development programs will be used in the instructional program to meet the needs of their students.
A student is identified as limited English proficient (LEP) by using a nationally recognized scientifically research-based test.
A school must provide services that assist each LEP student to:
(a) Become proficient in English and, to the extent possible, proficient in their Native language; and
(b) Meet the same challenging academic content and student academic achievement standards that all students are expected to meet under 20 U.S.C. 6311(b)(1).
Language Development programs are funded at 0.13 WSUs per student.
Yes, a school may operate a language development program without a specific appropriation from Congress, but any funds used for such a program must come from existing ISEP funds. When Congress specifically appropriates funds for Indian or Native languages, the factor to support the language development program will be no more than 0.25 WSU.
A school will receive a small school adjustment if either:
(a) Its average daily membership (ADM) is less than 100 students; or
(b) It serves lower grades and has a diploma-awarding high school component with an average instructional daily membership of less than 100 students.
(a) A school with a 3-year ADM of 50 or fewer students will receive an adjustment equivalent to an additional 12.5 base WSU; or
(b) A school with a 3-year ADM of 51 to 99 students will use the following formula to determine the number of WSU for its adjustment. With X being the ADM, the formula is as follows:
For purposes of this part, a small high school:
(a) Is accredited under 25 U.S.C. 2001(b);
(b) Is staffed with highly qualified teachers;
(c) Operates any combination of grades 9 through 12;
(d) Offers high school diplomas; and
(e) Has an ADM of fewer than 100 students.
(a) The small high school adjustment is a WSU adjustment given to a small high school that meets both of the following criteria:
(1) It has a 3-year average daily membership (ADM) of less than 100 students; and
(2) It operates as part of a school that during the 2003-04 school year also included lower grades.
(b) The following table shows the WSU adjustment given to small high schools. In the table, “X” stands for the ADM.
A school that meets the criteria in § 39.140 can receive both a small school adjustment and a small high school adjustment. The following table shows the total amount of adjustments for eligible schools by average daily membership (ADM) category.
In order to compensate for the additional costs of operating a small residential program, OIEP will add to the total WSUs of each qualifying school as shown in the following table:
Yes. Havasupai Elementary School, for as long as it remains in its present location, will be awarded an additional cost factor of 12.5 WSU.
OIEP uses the Indian School Equalization Formula (ISEF) to
ISEF does not attempt to assess the actual cost of school operations either at the local school level or in the aggregate nationally. ISEF is a relative distribution of available funds at the local school level by comparison with all other Bureau-funded schools.
(1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
(2) For the residential programs, the count period membership of the 3 years before the current year of operation.
OIEP calculates a school's allotment no later than July 1. Schools must submit final ADM enrollment figures no later than June 15.
OIEP calculates ADM by:
(a) Adding the total enrollment figures from periodic reports received from each Bureau-funded school; and
(b) Dividing the total enrollment for each school by the number of days in the school's reporting period.
(a) OIEP will add the weights obtained from the calculations in paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the total weighted student units (WSUs) for each school.
(1) Each year's ADM is multiplied by the applicable weighted student unit for each grade level;
(2) Calculate any supplemental WSUs generated by the students; and
(3) Calculate any supplemental WSUs generated by the schools.
(b) The total WSU for the school year is the sum of paragraphs (a)(1), (a)(2), and (a)(3) of this section.
(a) To calculate the appropriated dollar value of one WSU, OIEP divides the systemwide average number of WSUs for the previous 3 years into the current year's appropriation.
(b) To calculate the average WSU for a 3-year period:
(1)
(2)
To determine a school's funding for the school year, OIEP uses the following seven-step process:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) On July 1, schools will receive 80 percent of their funds as determined in § 39.207.
(b) On December 1, the balance will be distributed to all schools after verification of the school count and any adjustments made through the appeals process for the third year.
If a student is enrolled, is in attendance during any of the first 10 days of school, and receives at least 5 days' instruction, the student is deemed to be enrolled all 10 days and shall be counted for ADM purposes. The first 10 days of school, for purposes of this section, are determined by the calendar that the school submits to OIEP.
(a) For ISEP purposes, a school can add a student to the membership when he or she has been enrolled and has received a full day of instruction from the school.
(b) Except as provided in § 39.210, to be counted for ADM, a student dropped under § 39.209 must:
(1) Be re-enrolled; and
(2) Receive a full day of instruction from the school.
If a student is absent for 10 consecutive school days, the school must drop that student from the membership for ISEP purposes of that school on the 11th day.
A school can count other categories of students for membership purposes as shown in the following table.
Yes, if a student attends more than one school during an academic year, each school may count the student as enrolled once the student meets the criteria in 39.209.
No, the Bureau will not fund any child that is being home schooled.
A full time program provides the following number of instructional/student hours to the corresponding grade level:
(a) A school can receive funding for the following part-time students:
(1) Kindergarten students enrolled in a 2-hour program; and
(2) Grade 7-12 students enrolled in at least half but less than a full instructional day.
(b) The school must count students classified as part-time at 50 percent of their basic instructional WSU value.
Residential programs are funded on a WSU basis using a formula that takes into account the number of nights of service per week. Funding for residential programs is based on the average of the 3 previous years' residential WSUs.
For a student to be considered in residence for purposes of this subpart, the school must be able to document that the student was:
(a) In residence at least one night during the first full week of October;
(b) In residence at least one night during the week preceding the first full week in October;
(c) In residence at least one night during the week following the first full week in October; and
(d) Present for both the after school count and the midnight count at least one night during each week specified in this section.
(a) Residential services are funded as shown in the following table:
(b) In order to qualify for residential services funding under paragraph (a)(2) of this section, a school must document that at least 10 percent of residents are present on 3 of the 4 weekends during the count period.
(c) At least 50 percent of the residency levels established during the count period must be maintained every month for the remainder of the school year.
(d) A school may obtain waivers from the requirements of this section if there are health or safety justifications.
Each school must maintain its declared nights of service per week as certified in its submitted school calendar. For each month that a school does not maintain 25 percent of the residency shown in its submitted calendar, the school will lose one-tenth of its current year allocation.
Residential programs must report their monthly counts to the Director on the last school day of the month. To be counted, a student must have been in residence at least 10 nights during each full school month.
A full school month is each 30-day period following the first day that residential services are provided to students based on the school residential calendar.
The calculation of the three-year rolling average of ADM for each school and for the entire Bureau-funded school system will be phased-in as shown in the following table.
The purpose of this subpart is to ensure accountability of administrative officials by creating procedures that are systematic and can be verified by a random independent outside auditing procedures. These procedures will ensure the equitable distribution of funds among schools.
(a) Each school must maintain an individual file on each student receiving basic educational and supplemental services. The file must contain written documentation of the following:
(1) Each student's eligibility and attendance records;
(2) A complete listing of all supplemental services provided, including all necessary documentation required by statute and regulations (
(3) Documentation of expenditures and program delivery for student transportation to and from school provided by commercial carriers.
(b) The School must maintain the following files in a central location:
(1) The school's ADM and supplemental program counts and residential count;
(2) Transportation related documentation, such as school bus mileage, bus routes;
(3) A list of students transported to and from school;
(4) An electronic student count program or database;
(5) Class record books;
(6) Supplemental program class record books;
(7) For residential programs, residential student attendance documentation;
(8) Evidence of teacher certification; and
(9) The school's accreditation certificate.
(c) The Director must maintain a record of required certifications for ELOs, specialists, and school superintendents in a central location.
(a) Each school must:
(1) Certify that the files required by § 39.403 are complete and accurate; and
(2) Compile a student roster that includes a complete list of all students by grade, days of attendance, and supplemental services.
(b) The chief school administrator and the president of the school board are responsible for certifying the school's ADM and residential count is true and accurate to the best of their knowledge or belief and is supported by appropriate documentation.
(c) OIEP's education line officer (ELO) will annually review the following to verify that the information is true and accurate and is supported by program documentation:
(1) The eligibility of every student;
(2) The school's ADM and supplemental program counts and residential count;
(3) Evidence of accreditation;
(4) Documentation for all provided basic and supplemental services, including all necessary documentation required by statute and regulations (
(5) Documentation required by subpart G of this part for student transportation to and from school provided by commercial carriers.
The eligibility of every student shall be verified. The ELO will take a random sampling of five days with a minimum of one day per grading period to verify the information in § 39.404(c). The ELO will verify the count for the count period and verify residency during the remainder of the year.
Every school must maintain a file on each student receiving additional services. (Additional services include homebound services, institutional services, distance courses, Internet courses or college services.) The school must certify, and its records must show, that:
(a) Each homebound or institutionalized student is receiving 5 contact hours each week by certified educational personnel;
(b) Each student taking college, distance or internet courses is in physical attendance at the school for at least 3 certified contact hours per day.
The responsible administrative official for each school must maintain records relating to ISEP, supplemental services, and transportation-related expenditures. The official must maintain these records in appropriate retrievable storage for at least the four years prior to the current school year, unless Federal records retention schedules require a longer period.
Administrative officials have the following responsibilities:
(a) Applying the appropriate standards in this part for classifying and counting ISEP eligible Indian students at the school for formula funding purposes;
(b) Accounting for and reporting student transportation expenditures;
(c) Providing training and supervision to ensure that appropriate standards are adhered to in counting students and accounting for student transportation expenditures;
(d) Submitting all reports and data on a timely basis; and
(e) Taking appropriate disciplinary action for failure to comply with requirements of this part.
(a) The Director of OIEP must ensure accountability in student counts and student transportation by doing all of the following:
(1) Conducting annual independent and random field audits of the processes and reports of at least one school per OIEP line office to ascertain the accuracy of Bureau line officers' reviews;
(2) Hearing and making decisions on appeals from school officials;
(3) Reviewing reports to ensure that standards and policies are applied consistently, education line officers treat schools fairly and equitably, and the Bureau takes appropriate administrative action for failure to follow this part; and
(4) Reporting the results of the findings and determinations under this section to the appropriate tribal governing body.
(b) The purpose of the audit required by paragraph (a)(1) of this section is to ensure that the procedures outlined in these regulations are implemented. To conduct the audit required by paragraph (a)(1) of this section, OIEP will select an independent audit firm that will:
(1) Select a statistically valid audit sample of recent student counts and student transportation reports; and
(2) Analyze these reports to determine adherence to the requirements of this part and accuracy in reporting.
To be considered for auditing ISEP administration under this subpart, an independent audit firm must:
(a) Be a licensed Certified Public Accountant Firm that meets all requirements for conducting audits under the Federal Single Audit Act;
(b) Not be under investigation or sanction for violation of professional audit standards or ethics;
(c) Certify that it has conducted a conflict of interests check and that no conflict exists; and
(d) Be selected through a competitive bidding process.
(a) The auditor selected under § 39.410 must:
(1) Provide an initial draft report of its findings to the governing board or responsible Federal official for the school(s) involved; and
(2) Solicit, consider, and incorporate a response to the findings, where submitted, in the final audit report.
(b) The auditor must submit a final report to the Assistant Secretary—Indian Affairs and all tribes served by each school involved. The report must include all documented exceptions to the requirements of this part, including those exceptions that:
(1) The auditor regards as negligible;
(2) The auditor regards as significant, or as evidence of incompetence on the part of responsible officials, and that must be resolved in a manner similar to significant audit exceptions in a fiscal audit; or
(3) Involve fraud and abuse.
(c) The auditor must immediately report exceptions involving fraud and abuse directly to the Department of the Interior Inspector General's office.
(a) The employer of a responsible administrative official must take appropriate personnel action if the official:
(1) Submits false or fraudulent ISEP-related counts;
(2) Submits willfully inaccurate counts of student participation in weighted program areas; or
(3) Certifies or verifies submissions described in paragraphs (a)(1) or (a)(2) of this section.
(b) Unless prohibited by law, the employer must report:
(1) Notice of final Federal personnel action to the tribal governing body and tribal school board; and
(2) Notice of final tribal or school board personnel action to the Director of OIEP.
Yes, a school may appeal to the Director any administrative action disallowing any academic, transportation, supplemental program or residential count. In this appeal, the school may provide evidence to indicate the student's eligibility, membership or residency or adequacy of a program for all or a portion of school year. The school must follow the applicable appeals process in 25 CFR part 2 or 25 CFR part 900, subpart L.
The Secretary:
(a) Must reserve 1 percent of funds from the allotment formula to meet emergencies and unforeseen contingencies affecting educational programs;
(b) Can carry over to the next fiscal year a maximum of 1 percent the current year funds; and
(c) May distribute all funds in excess of 1 percent equally to all schools or distribute excess as a part of ISEP.
An emergency or unforeseen contingency is an event that meets all of the following criteria:
(a) It could not be planned for;
(b) It is not the result of mismanagement, malfeasance, or willful neglect;
(c) It is not covered by an insurance policy in force at the time of the event;
(d) The Assistant Secretary determines that Bureau cannot reimburse the emergency from the facilities emergency repair fund; and
(e) It could not have been prevented by prudent action by officials responsible for the educational program.
To apply for contingency funds, a school must send a request to the ELO. The ELO must send the request to the Director for consideration within 48 hours of receipt. The Director will consider the severity of the event and will attempt to respond to the request as soon as possible, but in any event within 30 days.
Contingency funds can be used only for education services and programs, including repair of educational facilities.
Bureau-operated schools may carry over funds to the next fiscal year.
(a) At the end of each fiscal year, Bureau/OIEP shall send an annual report to Congress detailing how the Contingency Funds were used during the previous fiscal year.
(b) By October 1 of each year, the Bureau must send a letter to each school and each tribe operating a school listing the allotments from the Contingency Fund.
Yes. Bureau-operated schools are limited to $8,000 or one percent (1%) of ISEP allotted funds (not to exceed $15,000).
No, school board training for Bureau-operated schools is not considered a school board expense subject to the limitation in § 39.600.
Yes. Any new member of a local school board or an agency school board must complete 40 hours of training within one year of appointment, provided that such training is recommended, but is not required, for a tribal governing body that serves in the capacity of a school board.
Yes. There is an ISEP weight not to exceed 1.2 WSUs to cover school board training and expenses at Bureau-operated schools.
(a) This subpart covers how transportation mileage and funds for schools are calculated under the ISEP transportation program. The program funds transportation of students from home to school and return.
(b) To use this part effectively, a school should:
(1) Determine its eligibility for funds using the provisions of §§ 39.702 through 39.708;
(2) Calculate its transportation miles using the provisions of §§ 39.710 and 39.711; and
(3) Submit the required reports as required by §§ 39.721 and 39.722.
A school transporting students by commercial bus, train, airplane, or other commercial modes of transportation will be funded at the cost of the commercial ticket for:
(a) The trip from home to school in the Fall;
(b) The round-trip return home at Christmas; and
(c) The return trip home at the end of the school year.
This section applies only if a school transports residential students by commercial bus, train or airplane from home to school. The school may receive funds for the ground miles that the school has to drive to deliver the students or their luggage from the bus, train, or plane terminal to the school.
Yes. Schools may receive funds for actual chaperone expenses, excluding salaries, during the transportation of students to and from home at the beginning and end of the school year and at Christmas.
Yes. A school that transports a special education student from home to a treatment center and back to home on a daily basis as required by the student's Individual Education Plan may count those miles for day student funding.
Yes. If the peripheral dormitory is required to transport dormitory students to the public school, the dormitory may count those miles driven transporting students to the public school for day transportation funding.
(a) The following transportation expenses are currently not eligible for transportation funding, however the data will be collected under the provisions in this subpart:
(1) Fuel and maintenance runs;
(2) Transportation home for medical or other emergencies;
(3) Transportation from school to treatment or special services programs;
(4) Transportation to after-school programs; and
(5) Transportation for day and boarding school students to attend instructional programs less than full-time at locations other than the school reporting the mileage.
(b) Examples of after-school programs covered by paragraph (a)(4) of this section include:
(1) Athletics;
(2) Band;
(3) Detention;
(4) Tutoring, study hall and special classes; and
(5) Extra-curricular activities such as arts and crafts.
No. Only miles generated by ISEP-eligible students enrolled in and attending a school are eligible for student transportation funding.
To calculate the total annual bus transportation miles for day students, a school must use the appropriate formula from this section. In the formulas, Tu = Miles driven on Tuesday of the transportation mileage count week, W = Miles driven on Wednesday of the transportation mileage count week, and Th = Miles driven on Thursday of the transportation mileage count week.
(a) For ISEP-eligible day students whose route is entirely over improved roads, calculate miles using the following formula:
(b) For ISEP-eligible day students whose route is partly over unimproved roads, calculate miles using the following three steps.
(1)
(2)
(3)
To calculate the total annual transportation miles for residential students, a school must use the procedures in paragraph (b) of this section.
(a) The school can receive funds for the following trips:
(1) Transportation to the school at the start of the school year;
(2) Round trip home at Christmas; and
(3) Return trip to home at the end of the school year.
(b) To calculate the actual miles driven to transport students from home to school at the start of the school year, add together the miles driven for all buses used to transport students from their homes to the school. If a school transports students over unimproved roads, the school must separate the number of miles driven for each bus into improved miles and unimproved miles. The number of miles driven is the sum of:
(1) The number of miles driven on improved roads; and
(2) The number of miles driven on unimproved roads multiplied by 1.2.
(c) The annual miles driven for each school is the sum of the mileage from paragraphs (b)(1) and (b)(2) of this section multiplied by 4.
In order to construct an actual cost data base, residential and day schools must report data required by §§ 39.721 and 39.722.
(a) Each off-reservation boarding school that provides transportation must report annually the information required by this section. The report must:
(1) Be submitted to OIEP by August 1 and cover the preceding school year;
(2) Include a Charter/Commercial and Air Transportation Form signed and certified as complete and accurate by the School Principal and the appropriate ELO; and
(3) Include the information required by paragraph (b) of this section.
(b) Each annual transportation report must include the following information:
(1) Fixed vehicle costs, including: the number and type of buses, passenger
(2) Variable vehicle costs;
(3) Mileage traveled to transport students to and from school on school days, to sites of special services, and to extra-curricular activities;
(4) Medical trips;
(5) Maintenance and Service costs; and
(6) Driver costs;
(7) All expenses referred to in § 39.707.
(a) By August 1 of each year, all schools and peripheral dorms that provide transportation must submit a report that covers the preceding year. This report must include:
(1) Fixed vehicle costs and other costs, including: the number and type of buses, passenger size, and local GSA rental rate and duration of GSA contract;
(2) Variable vehicle costs;
(3) Mileage traveled to transport students to and from school on school days, to sites of special services, and to extra-curricular activities;
(4) Mileage driven for student medical trips;
(5) Costs of vehicle maintenance and service cost, including cost of miles driven to obtain maintenance and service;
(6) Driver costs; and
(7) All expenses referred to in § 39.707.
(b) In addition, all day schools and on-reservation boarding schools must include in their report a Day Student Transportation Form signed and certified as complete and accurate by the School Principal and the appropriate ELO.
All vehicles used by schools to transport students must meet or exceed all appropriate Federal motor vehicle safety standards and State or Tribal motor vehicle safety standards. The Bureau will not fund transportation mileage and costs incurred transporting students in vehicles that do not meet these standards.
No. Transportation time cannot be used as instruction time for day school students in meeting the minimum required hours for academic funding.
OIEP allocates transportation funds based on the types of transportation programs that the school provides. To allocate transportation funds OIEP:
(a) Multiplies the one-way commercial costs for all schools by four to identify the total commercial costs for all schools;
(b) Subtracts the commercial cost total from the appropriated transportation funds and allocates the balance of the transportation funds to each school with a per-mile rate;
(c) Divides the balance of funds by the sum of the annual day miles and the annual residential miles to identify a per-mile rate;
(d) For day transportation, multiplies the per-mile rate times the annual day miles for each school; and
(e) For residential transportation, multiplies the per mile rate times the annual transportation miles for each school.
(a) The Secretary's formula to determine the minimum annual amount necessary to sustain a Bureau-funded school's academic or residential program is as follows:
(b) Sections 39.802 through 39.807 explain the derivation of the formula in paragraph (a) of this section.
(c) If the annual minimum amount calculated under this section and §§ 39.802 through 39.807 is not fully funded, OIEP will pro rate funds distributed to schools using the Indian School Equalization Formula.
The student unit value is the dollar value applied to each student in an academic or residential program. There are two types of student unit values: the student unit instructional value (SUIV) and the student unit residential value (SURV).
(a) The student unit instructional value (SUIV) applies to a student enrolled in an instructional program. It is an annually established ratio of 1.0 that represents a student in grades 4 through 6 of a typical non-residential program.
(b) The student unit residential value (SURV) applies to a residential student. It is an annually established ratio of 1.0 that represents a student in grades 4 through 6 of a typical residential program.
A weighted student unit is an adjusted ratio using factors in the Indian School Equalization Formula to establish educational priorities and to provide for the unique needs of specific students, such as:
(a) Students in grades kindergarten through 3 or grades 7 through 12;
(b) Special education students;
(c) Gifted and talented students;
(d) Distance education students;
(e) Vocational and industrial education students;
(f) Native Language Instruction students;
(g) Small schools;
(h) Personnel costs;
(i) Alternative schooling; and
(j) Early Childhood Education programs.
The SUIV is calculated by the following 5-step process:
(a)
(b)
(c)
(d)
(e)
The process described in § 39.804 is illustrated in the table below, using figures for the 1999-2000 school year:
(a) The SURV is the adjusted national average current expenditures for residential schools (ANACER) of public and private residential schools. This average is determined using data from the Association of Boarding Schools.
(b) Applying the procedure in paragraph (a) of this section, the SURV for school year 1999-2000 was $11,000.
(a) The student unit instructional value (SUIV) and the student unit residential value (SURV) will be adjusted annually to derive the current year Student Unit Value (SUV) by dividing the calculated SUIV and the SURV into two parts and adjusting each one as shown in this section.
(1) The first part consists of 85 percent of the calculated SUIV and the SURV. OIEP will adjust this portion using the personnel cost of living increase of the Department of Defense schools for each year.
(2) The second part consists of 15 percent the calculated SUIV and the SURV. OIEP will adjust this portion using the Consumer Price Index-Urban of the Department of Labor.
(b) If the student unit value amount is not fully funded, the schools will receive their pro rata share using the Indian School Equalization Formula.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
5 U.S.C. 301, Pub. L. 107-110, 115 Stat. 1425.
(a) This part applies to every Bureau-funded school. The regulations in this part govern student rights and due process procedures in disciplinary proceedings in all Bureau-funded schools. To comply with this part, each school must:
(1) Respect the constitutional, statutory, civil and human rights of individual students; and
(2) Respect the role of Tribal judicial systems where appropriate.
(b) All student rights, due process procedures, and educational practices should, where appropriate or possible, afford students consideration of and rights equal to the student's traditional Native customs and practices.
Individual students at Bureau-funded schools have, and must be accorded, at least the following rights:
(a) The right to an education that may take into consideration Native American or Alaska Native values;
(b) The right to an education that incorporates applicable Federal and Tribal constitutional and statutory protections for individuals; and
(c) The right to due process in instances of disciplinary actions.
(a) In addressing alleged violations of school policies, each school must consider, to the extent appropriate, the reintegration of the student into the school community.
(b) The school may address a student violation using alternative dispute resolution (ADR) processes or the formal disciplinary process.
(1) When appropriate, the school should first attempt to use the ADR processes described in § 42.4 that may allow resolution of the alleged violation without recourse to punitive action.
(2) Where ADR processes do not resolve matters or cannot be used, the school must address the alleged violation through a formal disciplinary proceeding under § 42.7 consistent with the due process rights described in § 42.7.
Alternative dispute resolution (ADR) processes are formal or informal processes that may allow resolution of the violation without recourse to punitive action.
(a) ADR processes may:
(1) Include peer adjudication, mediation, and conciliation; and
(2) Involve appropriate customs and practices of the Indian Tribes or Alaska Native Villages to the extent that these practices are readily identifiable.
(b) For further information on ADR processes and how to use them, contact the Office of Collaborative Action and Dispute Resolution by:
(1) Sending an e-mail to:
(2) Writing to: Office of Collaborative Action and Dispute Resolution, Department of the Interior, 1849 C Street NW., MS 5258, Washington, DC 20240.
(a) The school may address an alleged violation through the ADR processes described in § 42.4, unless one of the conditions in paragraph (b) of this section applies.
(b) The school must not use ADR processes in any of the following circumstances:
(1) Where the Act requires immediate expulsion (“zero tolerance” laws);
(2) For a special education disciplinary proceeding where use of ADR would not be compatible with the Individuals with Disabilities Education Act (Pub. L. 105-17); or
(3) When all parties do not agree to using alternative dispute resolution processes.
(c) If ADR processes do not resolve matters or cannot be used, the school must address alleged violations through the formal disciplinary proceeding described in § 42.8.
Unless local school policies and procedures provide for less, a formal disciplinary hearing is required before a suspension in excess of 10 days or expulsion.
Due process must include written notice of the charges and a fair and impartial hearing as required by this section.
(a) The school must give the student written notice of charges within a reasonable time before the hearing required by paragraph (b) of this section. Notice of the charges includes:
(1) A copy of the school policy allegedly violated;
(2) The facts related to the alleged violation;
(3) Information about any statements that the school has received relating to the charge and instructions on how to obtain copies of those statements; and
(4) Information regarding those parts of the student's record that the school will consider in rendering a disciplinary decision.
(b) The school must hold a fair and impartial hearing before imposing disciplinary action, except under the following circumstances:
(1) If the Act requires immediate removal (such as, if the student brought a firearm to school) or if there is some other statutory basis for removal;
(2) In an emergency situation that seriously and immediately endangers the health or safety of the student or others; or
(3) If the student (or the student's parent or guardian if the student is less than 18 years old) chooses to waive entitlement to a hearing.
(c) In an emergency situation under paragraph (b)(2) of this section, the school:
(1) May temporarily remove the student;
(2) Must immediately document for the record the facts giving rise to the emergency; and
(3) Must afford the student a hearing that follows due process, as set forth in this part, within ten days.
A student has the following due process rights in a formal disciplinary proceeding:
(a) The right to have present at the hearing the student's parents or guardians (or their designee);
(b) The right to be represented by counsel (legal counsel will not be paid for by the Bureau-funded school or the Secretary);
(c) The right to produce, and have produced, witnesses on the student's behalf and to confront and examine all witnesses;
(d) The right to the record of the disciplinary action, including written findings of fact and conclusions;
(e) The right to administrative review and appeal under school policy;
(f) The right not to be compelled to testify against himself or herself; and
(g) The right to have an allegation of misconduct and related information expunged from the student's school record if the student is found not guilty of the charges.
In formal disciplinary proceedings, each school must consider victims' rights when appropriate.
(a) The victim's rights may include a right to:
(1) Participate in disciplinary proceedings either in writing or in person;
(2) Provide a statement concerning the impact of the incident on the victim; and
(3) Have the outcome explained to the victim and to his or her parents or guardian by a school official, consistent with confidentiality.
(b) For the purposes of this part, the victim is the actual victim, not his or her parents or guardians.
Each school must:
(a) Develop a student handbook that includes local school policies, definitions of suspension, expulsion, zero tolerance, and other appropriate terms, and a copy of the regulations in this part;
(b) Provide all school staff a current and updated copy of student rights and responsibilities before the first day of each school year;
(c) Provide all students and their parents or guardians a current and updated copy of student rights and responsibilities every school year upon enrollment; and
(d) Require students, school staff, and to the extent possible, parents and guardians, to confirm in writing that they have received a copy and understand the student rights and responsibilities.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Public Law 107-110, Title 10, Part D, the Native American Education Improvement Act, 115 Stat. 2007; Part B, Section 1138, Regional Meetings and Negotiated Rulemaking, 115 Stat. 2057.
In making a grant under this part the Secretary will use only:
(a) The Tribally Controlled Schools Act;
(b) The regulations in this part; and
(c) Guidelines, manuals, and policy directives agreed to by the grantee.
This part does not:
(a) Affect in any way the sovereign immunity from suit enjoyed by Indian tribes;
(b) Terminate or change the trust responsibility of the United States to any Indian tribe or individual Indian;
(c) Require an Indian tribe to apply for a grant; or
(d) Impede awards by any other Federal agency to any Indian tribe or tribal organization to administer any Indian program under any other law.
The Secretary can make grants to Indian tribes and tribal organizations that operate:
(a) A school under the provisions of 25 U.S.C. 450
(b) A tribally controlled school (including a charter school, community-generated school or other type of school) approved by tribal governing body; or
(c) A Bureau-funded school approved by tribal governing body.
A grant can be terminated only by one of the following methods:
(a) Retrocession;
(b) Revocation of eligibility by the Secretary; or
(c) Reassumption by the Secretary.
(a) To retrocede a program, the tribal governing body must:
(1) Notify the Bureau in writing, by formal action of the tribal governing body; and
(2) Consult with the Bureau to establish a mutually agreeable effective date. If no date is agreed upon, the retrocession is effective 120 days after the tribal governing body notifies the Bureau.
(b) The Bureau must accept any request for retrocession that meets the criteria in paragraph (a) of this section.
(c) After the tribal governing body retrocedes a program:
(1) The tribal governing body decides whether the school becomes Bureau-operated or contracted under 25 U.S.C. 450
(2) If the tribal governing body decides that the school is to be Bureau-operated, the Bureau must provide education-related services in at least the same quantity and quality as those that were previously provided.
(a) In order to revoke eligibility, the Secretary must:
(1) Provide the tribe or tribal organization with a written notice;
(2) Furnish the tribe or tribal organization with technical assistance to take remedial action; and
(3) Provide an appeal process.
(b) The Secretary cannot revoke an eligibility determination if the tribe or tribal organization is in compliance with 25 U.S.C. 2505(c).
(c) The Secretary can take corrective action if the school fails to be accredited by January 8, 2005.
(d) In order to revoke eligibility for a grant, the Secretary must send the tribe or tribal organization a written notice that:
(1) States the specific deficiencies that are the basis of the revocation or reassumption; and
(2) Explains what actions the tribe or tribal organization must take to remedy the deficiencies.
(e) The tribe or tribal organization may appeal a notice of revocation or reassumption by requesting a hearing under 25 CFR part 900, subpart L or P.
(f) After revoking eligibility, the Secretary will either contract the program under 25 U.S.C. 450
The Secretary may only reassume a program in compliance with 25 U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board shall have a right to appeal the reassumption pursuant to 25 CFR part 900, subpart L.
(a) The Secretary makes two annual grant payments.
(1) The first payment, consisting of 80 per cent of the amount that the grantee was entitled to receive during the previous academic year, must be made no later than July 1 of each year; and
(2) The second payment, consisting of the remainder to which the grantee is entitled for the academic year, must be made no later than December 1 of each year.
(b) For funds that become available for obligation on October 1, the Secretary must make payments no later than December 1.
(c) If the Secretary does not make grant payments by the deadlines stated in this section, the Secretary must pay interest under the Prompt Payment Act. If the Secretary does not pay this interest, the grantee may pursue the remedies provided under the Prompt Payment Act.
(a) If the Secretary has mistakenly overpaid the grant recipient, then the Secretary will notify the grant recipient of the overpayment. The grant recipient must return the overpayment within 30 days after the final determination that overpayment occurred.
(b) When the grant recipient returns the money to the Secretary, the Secretary will distribute the money equally to all schools in the system.
(a) The following provisions of 25 CFR part 900 apply to grants under the Tribally Controlled Schools Act.
(1) Subpart F; Standards for Tribal or Tribal Organization Management Systems, § 900.45.
(2) Subpart H; Lease of Tribally-owned Buildings by the Secretary.
(3) Subpart I; Property Donation Procedures.
(4) Subpart N; Post-award Contract Disputes.
(5) Subpart P; Retrocession and Reassumption Procedures.
(b) To resolve any disputes arising from the Secretary's administration of the requirements of this part, the procedures in subpart N of part 900 apply if the dispute involves any of the following:
(1) Any exception or problem cited in an audit;
(2) Any dispute regarding the grant authorized;
(3) Any dispute involving an administrative cost grant;
(4) Any dispute regarding new construction or facility improvement or repair; or
(5) Any dispute regarding the Secretary's denial or failure to act on a request for facilities funds.
Yes, the Federal Tort Claims Act applies to grantees.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Pub. L. 107-110, 115 Stat. 1425.
This part contains the requirements for developing local educational financial plans that Bureau-operated schools need in order to receive direct funding from the Bureau of Indian Affairs under section 1127 of the Act.
(1) Programs dollars for educational services for a particular Bureau-operated school; and
(2) Has been ratified in an action of record by the local school board or determined by the superintendent under the appeals process in 25 CFR part 2.
The Office of Indian Education Programs (OIEP) will notify each Bureau-operated school in writing of the annual funding amount it will receive as follows:
(a) No later than July 1 OIEP will let the Bureau-operated school know the amount that is 80 percent of its funding; and
(b) No later than September 30 OIEP will let the Bureau-operated school know the amount of the remaining 20 percent.
By July 1 of each year OIEP will make available for obligation 80 percent of the funds for the fiscal year that begins on the following October 1.
Each Bureau-operated school's school supervisor has the responsibilities in this section. The school supervisor must do all of the following:
(a) Ensure that the Bureau-operated school spends funds in accordance with the local educational financial plan, as ratified or amended by the school board;
(b) Sign all documents required to obligate or pay funds or to record receipt of goods and services;
(c) Report at least quarterly to the local school board on the amounts spent, obligated, and currently remaining in funds budgeted for each program in the local educational financial plan;
(d) Recommend changes in budget amounts to carry out the local educational financial plan, and incorporate these changes in the budget as ratified by the local school board, subject to provisions for appeal and overturn; and
(e) Maintain expenditure records in accordance with financial planning system procedures.
The Comptroller General, the Assistant Secretary, the Director, or any of their duly authorized representatives have access for audit and explanation purposes to any of the local school's accounts, documents, papers, and records which are related to the Bureau-operated schools' operation.
Each Bureau-operated school must spend all allotted funds in accordance with applicable Federal regulations and local education financial plans. If a Bureau-operated school and OIEP region or Agency support services staff disagree over expenditures, the Bureau-operated school must appeal to the Director for a decision.
The local Bureau-operated school supervisor develops the local educational financial plan in active consultation with the local school board, based on the tentative allotment received.
(a) The local educational financial plan must include:
(1) Separate funds for each group receiving a discrete program of services is to be provided, including each program funded through the Indian School Equalization Program;
(2) A budget showing the costs projected for each program; and
(3) A certification provision meeting the requirements of paragraph (b) of this section.
(b) The certification required by paragraph (a)(3) of this section must provide for:
(1) Certification by the chairman of the school board that the plan has been ratified in an action of record by the board; and
(2) Certification by the Education Line Officer that he or she has approved the plan as shown in an action overturning
(a) The following deadlines apply to development of the local educational financial plan:
(1) Within 15 days after receiving the tentative allotment, the school supervisor must consult with the local school board on the local educational financial plan.
(2) Within 30 days of receiving the tentative allotment, the school board must review the local educational financial plan and, by a quorum vote, ratify, reject, or amend, the plan.
(3) Within one week of the school board action under paragraph (a)(2) of this section, the supervisor must either:
(i) Send the plan to the education line officer (ELO), along with the official documentation of the school board action; or
(ii) Appeal the school board's decision to the ELO.
(4) The ELO will review the local educational financial plan for compliance with laws and regulations and may refer the plan to the Solicitor's Office for legal review. If the ELO notes any problem with the plan, he or she must:
(i) Notify the local board and local supervisor of the problem within two weeks of receiving the plan;
(ii) Make arrangements to assist the local school supervisor and board to correct the problem; and
(iii) Refer the problem to the Director of the Office of Indian Education if it cannot be solved locally.
(b) When consulting with the school board under paragraph (a)(1) of this section, the school supervisor must:
(1) Discuss the present program of the Bureau-operated school and any proposed changes he or she wishes to recommend;
(2) Give the school board members every opportunity to express their own ideas and views on the supervisor recommendations; and
(3) After the discussions required by paragraphs (b)(1) and (b)(2) of this section, present a draft plan to the school board with recommendations concerning each of the elements.
(c) If the school board does not act within the deadline in paragraph (a)(2) of this section, the supervisor must send the plan to the ELO for ratification. The school board may later amend the plan by a quorum vote; the supervisor must transmit this amendment in accordance with paragraph (a)(3) of this section.
A Bureau-operated school may use funds that it receives under this part as matching funds for other Federal programs.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is proposing for public comment amendments to its Rules of Practice and related provisions. The Commission is proposing the amendments as a result of its experience with these rules and to correct typographical errors and change certain citations. The proposed amendments are intended to enhance the transparency and facilitate parties' understanding of the rules and to make practice under the rules easier and more efficient.
Comments should be received on or before May 31, 2005.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• 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 S7-05-05. This file number should be included on the subject line if e-mail is used. To help us 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 (
Diane V. White, Office of the General Counsel, (202) 942-0950, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549-0208.
The Commission proposes to amend its Rules of Practice and related provisions as a result of the Commission's experience with its existing rules and in order to correct references and change certain citations.
A. Rule 141(a)(2)(ii) now generally authorizes service on other corporations or entities by delivering a copy of the order instituting proceedings (“OIP”) to an officer, managing or general agent, or authorized agent by personal service or by mail.
Rule 141(a)(2)(i) authorizes delivery by “handing a copy of the order to the individual; or leaving a copy at the individual's office with a clerk or other person in charge thereof; or leaving a copy at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or sending a copy of the order addressed to the individual by U.S. Postal Service certified, registered or Express Mail and obtaining confirmation of receipt; or giving confirmed telegraphic notice.”
The Commission also proposes to add Rule 141(a)(2)(vi) to authorize service on persons registered with self-regulatory organizations at the most recent address shown in the Central Registration Depository, together with obtaining confirmation of attempted delivery. We request comment as to whether this method will provide adequate notice of a proceeding. We recognize that the Central Registration Depository requires only that addresses be kept current for two years after a person ceases to be associated with a member of a self-regulatory organization, and we request comment as to whether the rule should refer explicitly to such a two-year period.
B. Currently, Rule 430(a) provides that any person aggrieved by an action made by authority delegated in Sections 200.30-1 through 200.30-8 or Sections 200.30-11 through 200.30-18 may seek review of the action pursuant to Rule 430(b). Rule 430(b) provides that Commission review is to be sought by filing a written notice of intention to petition for review within five days “after actual notice to the party of the action or service of notice pursuant to § 201.141(b), whichever is earlier.” While the current rule permits appeals by any aggrieved person, an aggrieved person who is not a party may not receive actual notice or learn of service of notice promptly after the action. Nonetheless, it is important that a deadline for the filing of a notice of intention to petition for review be established, so that people may know when an action is beyond challenge. The proposed amendment would therefore provide that both parties and aggrieved persons may seek Commission review of the action by filing a notice of intention to petition for review within five days after actual notice of the action to the party or person, or 15 days after publication of the notice of action in the
C. Currently, Rule 55, which governs the conduct of Equal Access to Justice Act (“EAJA”) proceedings before an administrative law judge, authorizes the law judge considering an application for an award of fees and expenses under the Equal Access to Justice Act, 5 U.S.C. § 504, to order all proceedings that are otherwise available under Rule 8(d) of the Rules of Practice. Former Rule 8(d) authorized the conduct of prehearing conferences and briefings. When the Commission comprehensively revised and renumbered its Rules of Practice in 1995, former Rule 8(d) was incorporated into Rules 221 and 222(a).
D. Current Rule 102(e)(3)(iii) provides that Commission review of a hearing officer's initial decision on a petition to lift a temporary suspension of a person from appearing and practicing before the Commission will be governed by the time limits set forth in § 201.531. The proposed amendment would correct the reference, by referring to § 201.540, which governs the appeal and Commission review of certain initial decisions.
E. Currently, Rule 111(h) provides no time limit within which a law judge is required to rule upon a motion to correct a manifest error of fact in an initial decision. The proposed amendment would make clear that such a ruling must be made within 20 days of the filing of any brief in opposition. Any brief in opposition must be filed within five days after service of the motion.
F. Current Rule 152(d) provides that an original and three copies of all papers shall be filed. The proposed amendment would make clear that if filing is made by facsimile pursuant to Rule 151, the filer must transmit only one non-facsimile original with a manual signature and does not need to transmit additional non-facsimile copies.
G. Currently, Rule 154(c) and Rule 250(c) provide page limitations for, respectively, motions in general and motions for summary disposition. Rule 450(c), however, now sets word-count limitations, instead of page limitations, for briefs filed with the Commission. The proposed amendment to Rule 154(c) would substitute a limitation for motions of 7,000 words, exclusive of any table of contents, table of authority, or addendum of applicable cases, legislative provisions, or exhibits. Rule 470(b), which currently requires motions for reconsideration to comply with the page length limitation in Rule 154(c), would be amended to refer to proposed Rule 154(c)'s word limitation.
The proposed amendment to Rule 250(c) would set a limitation of 9,800 words for a motion for summary disposition, supporting memorandum of points and authorities, but not including any declarations, affidavits or attachments. Motions for summary dispositions are often made in cases where a respondent has been criminally convicted or an injunction has been entered and the conviction or injunction provides the basis for an administrative order against the respondent. In such cases, documents establishing the conviction or injunction must be included as exhibits to the motion; these documents alone can total more than the entire word limitation allotted to the motion. The proposed amendment would exclude such attachments from the word-count restriction.
H. Current Rule 201(b) provides that by order of the Commission, any proceeding may be severed with respect to some or all parties. The proposed amendment would allow severance with respect to “one or more” parties, making clear that severance is available as to a single party, under appropriate circumstances.
I. Current Rule 210(a)(2) contains a reference to § 201.612. Section 612 was renumbered as § 201.1103, effective April 19, 2004. The proposed amendment would change the reference accordingly.
J. Current Rule 411(c) refers to “any brief in opposition to a petition for review permitted pursuant to § 201.410(d).” The Rules of Practice no longer provide for briefs in opposition to a petition for review, and Section 410(d) was removed and reserved effective April 19, 2004. The proposed amendment would delete the reference.
K. Currently, Rule 601(a) provides that funds due pursuant to an order by a hearing officer shall be paid on the first day after the order becomes final pursuant to Rule 360. Under Rule 360(d)(2) as revised, effective April 19, 2004, an initial decision no longer becomes final automatically. That rule now provides that the Commission will issue an order stating that a decision has become final. Rule 360(d)(2) further provides for the order of finality to state the date on which sanctions, if any, take effect. Proposed Rule 601would clarify that funds due pursuant to an order by a hearing officer are to be paid in accordance with the order of finality.
L. Current Rule 900(b) requires the Chief Administrative Law Judge to apprise the Commission specifically if a proceeding assigned to an administrative law judge has not been concluded “within 30 days of the guidelines established in paragraph (a) of this section.” Paragraph (a) no longer contains guidelines relevant to the timely conclusion of proceedings before law judges; these guidelines are now found in § 201.360(a)(2). Rule 360(a)(3) requires the Chief Administrative Law Judge to submit a motion for an extension to the Commission if it is determined that an initial decision cannot be issued within the period specified in the guidelines. The submission of such motions renders the specific apprisal by the Chief Administrative Law Judge under Rule 900(b) unnecessary. The proposed amendment would eliminate that requirement.
M. In proceedings where an order issued by the Commission requires a respondent to pay disgorgement and assesses a civil penalty against that respondent, current Rule 1100 allows the Commission to create a Fair Fund for the benefit of investors who were harmed by the violation found. The proposed amendment would make clear that in such cases, hearing officers also have the authority to create Fair Funds.
N. Tables I, II, and III have been superseded by subsequent amendments to the federal securities laws and these rules, and are of little utility to the public. The proposed amendment would delete these tables.
We request and encourage any interested person to submit comments regarding: (1) The proposed changes that are the subject of this release, (2) additional or different changes, or (3) other matters that may have an effect on the proposals contained in this release.
The Commission finds, in accordance with Section 533(b)(3)(A) of the
Taken as a whole, the Commission's Rules of Practice create governmental review and remedial processes. That is, they are procedural and administrative in nature. The benefits to the parties are the familiar benefits of due process: notice, opportunity to be heard, efficiency, and fairness. The costs of these processes fall largely on the Commission.
The proposals set forth in this release variously clarify existing practice, relate to internal agency management, increase the efficiency of proceedings, or promote due process. The Commission requests data to quantify the costs and the value of the benefits identified. The Commission also seeks estimates and views regarding these costs and benefits for particular types of market participants, as well as any other costs or benefits that may result from the adoption of the proposed rules.
Section 2(b) of the Securities Act of 1933,
These amendments to the Rules of Practice and related provisions are being adopted pursuant to statutory authority granted to the Commission, including section 3 of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7202; section 19 of the Securities Act, 15 U.S.C. 77s; sections 4A, 19, and 23 of the Exchange Act, 15 U.S.C. 78d-1, 78s, and 78w; section 20 of the Public Utility Holding Company Act of 1935, 15 U.S.C. 79t; section 319 of the Trust Indenture Act of 1939, 15 U.S.C. 77sss; sections 38 and 40 of the Investment Company Act, 15 U.S.C. 80a-37 and 80a-39; and section 211 of the Investment Advisers Act, 15 U.S.C. 80b-11.
Administrative practice and procedure.
For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 201 continues to read as follows:
15 U.S.C. 77s, 78w, 78x, 79t, 77sss, 80a-37 and 80b-11; 5 U.S.C. 504(c)(1).
2. Section 201.55 is amended by revising the third sentence in paragraph (a) to read as follows:
(a) * * * The administrative law judge may order all proceedings that are otherwise available under Rules 221 and 222(a) of the Commission's Rules of Practice, §§ 201.211 and 201.222(a). * * *
3. The authority citation for Part 201, subpart D, continues to read as follows:
15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 78c(b), 78d-1, 78d-2, 78
4. Section 201.102 is amended by revising the cite “§ 201.531” to read “§ 201.540” in the last sentence of paragraph (e)(3)(iii).
5. Section 201.111 is amended by revising paragraph (h) to read as follows:
(h) Subject to any limitations set forth elsewhere in these Rules of Practice, considering and ruling upon all procedural and other motions, including a motion to correct a manifest error of fact in the initial decision. Any motion to correct must be filed within ten days of the initial decision. A brief in opposition may be filed within five days of a motion to correct. The hearing officer shall have 20 days from the date of filing of any brief in opposition filed to rule on a motion to correct;
6. Section 201.141 is amended by:
a. Revising paragraph (a)(2)(ii); and
b. Adding paragraph (a)(2)(vi).
The revision and addition read as follows.
(a) * * *
(2) * * *
(ii)
(vi)
7. Section 201.152 is amended by revising paragraph (d) to read as follows:
(d)
8. Section 201.154 is amended by revising paragraph (c) to read as follows:
(c)
9. Section 201.201 is amended by revising the first sentence of paragraph (b) to read as follows:
(b) * * * By order of the Commission, any proceeding may be severed with respect to one or more parties. * * *
10. Section 201.210 is amended by:
a. Revising the cite “§ 201.612” to read “§ 201.1103” in paragraph (a)(2);
b. Removing the colon at the end of the introductory text of paragraph (b)(1) and adding a period in its place; and
c. Adding a sentence at the end of the introductory text of paragraph (b)(1).
The revision and addition read as follows.
(b) * * * (1) * * * No person, however, shall be admitted as a party to a proceeding by intervention unless it is determined that leave to participate pursuant to paragraph (c) of this section would be inadequate for the protection of the person's interests.
11. Section 201.250 is amended by revising paragraph (c) to read as follows:
(c) The motion for summary disposition, supporting memorandum of points and authorities (exclusive of any declarations, affidavits or attachments) shall not exceed 9,800 words. Requests for leave to file motions and accompanying documents in excess of 9,800 words are disfavored. A motion that does not, together with any accompanying memorandum of points and authorities, exceed 35 pages in length, inclusive of pleadings incorporated by reference (but excluding any declarations, affidavits or attachments) is presumptively considered to contain no more than 9,800 words. Any motion that exceeds these page limits must include a certificate by the attorney, or an unrepresented party, stating that the brief complies with the length limitation set forth in this paragraph and stating the number of words in the motion. The person preparing the certificate may rely on the word count of a word-processing program to prepare the motion.
12. Section 201.411 is amended by revising the first sentence in paragraph (c) to read as follows:
(c) * * * The Commission may, on its own initiative, order review of any initial decision, or any portion of any initial decision, within 21 days after the end of the period established for filing a petition for review pursuant to § 210.410(b). * * *
13. Section 201.430 is amended by revising paragraph (b)(1) to read as follows:
(b) * * * (1)
14. Section 201.470 is amended by revising the third sentence of paragraph (b) to read as follows:
(b) * * * A motion for reconsideration shall conform to the requirements, including the limitation on the numbers of words, provided in § 201.154. * * *
15. Section 201.601 is amended by revising paragraph (a) to read as follows:
(a)
16. Section 201.900 is amended by revising the last sentence in paragraph (b) to read as follows:
(b) * * * In connection with these reports, if a proceeding pending before the Commission has not been concluded within 30 days of the guidelines established in paragraph (a) of this section, the General Counsel shall specifically apprise the Commission of that fact, and shall describe the procedural posture of the case, project an estimated date for conclusion of the proceeding, and provide such other information as is necessary to enable the Commission to determine whether additional steps are necessary to reach a fair and timely resolution of the matter.
17. Part 201, subpart D, is amended by removing Tables I, II, and III at the end of the subpart.
18. The authority citation for subpart F continues to read as follows.
15 U.S.C. 77h-1, 77s, 77u, 78c(b), 78d-1, 78d-2, 78u-2, 78u-3, 78v, 78w, 80a-9, 80a-37, 80a-39, 80a-40, 80b-3, 80b-11, 80b-12, and 7246.
19. Section 201.1100 is revised to read as follows:
In any agency process initiated by an order instituting proceedings in which the Commission or the hearing officer issues an order requiring the payment of disgorgement by a respondent and also assessing a civil money penalty against that respondent, the Commission or the hearing officer may order that the amount of disgorgement and of the civil penalty, together with any funds received pursuant to 15 U.S.C. 7246(b), be used to create a fund for the benefit of investors who were harmed by the violation.
By the Commission.
An LEA that was awarded an implementation grant on behalf of a school under the original SLC program competition held in 2000 (Cohort 1) or the second competition, which was held in 2002 (Cohort 2) may apply on behalf of the school for a second SLC grant under the terms set forth in the notice of final priority, requirements, definitions, and selection criteria for fiscal year (FY) 2004 and subsequent years' funds (NFP), published elsewhere in this issue of the
Additional eligibility requirements are listed in the
The Department is not bound by any estimates in this notice.
The priority is:
This priority supports projects to create or expand SLCs that will implement a coherent set of strategies and interventions that are designed to ensure that all students who enter high school with reading/language arts and mathematics skills that are significantly below grade level “catch up” quickly so that, by no later than the end of the 10th grade, they have acquired the reading/language arts and mathematics skills they need to participate successfully in rigorous academic courses that will equip them with the knowledge and skills necessary to transition successfully to postsecondary education, apprenticeships, or advanced training.
These accelerated learning strategies and interventions must:
(1) Be grounded in the findings of scientifically based and other rigorous research;
(2) Include the use of age-appropriate instructional materials and teaching and learning strategies;
(3) Provide additional instruction and academic support during the regular school day, which may be supplemented by instruction that is provided before or after school, on weekends, and at other times when school is not in session; and
(4) Provide sustained professional development and ongoing support for teachers and other personnel who are responsible for delivering instruction.
These additional requirements are: Eligibility; School Report Cards; Types of Grants; Consortium Applications and Educational Service Agencies; Budget Information for Determination of Award; Student Placement; Including All Students; Performance Indicators; Evaluation; High-Risk Status and Other Enforcement Mechanisms; Required Meetings Sponsored by the Department; and Previous Grantees.
20 U.S.C. 7249.
The regulations in part 79 apply to all applicants except federally recognized Indian tribes.
Additional information regarding awards and budget determination is in the Budget Information for Determination of Award section in the Application Requirements in the NFP, published elsewhere in this issue of the
The Department is not bound by any estimates in this notice.
1.
An LEA that was awarded an implementation grant on behalf of a school under the original SLC program competition held in 2000 (Cohort 1) or the second competition, which was held in 2002 (Cohort 2) may apply on behalf of the school for a second SLC grant under the terms set forth in this notice. LEAs that received funding on behalf of schools for an SLC implementation grant(s) under the competitions held in 2003 (Cohort 3) and 2004 (Cohort 4) may not apply on behalf of those same schools for a grant in this competition.
Additional eligibility requirements are listed in the
2.
1.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
You may also obtain an application package via Internet from the following address:
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
3.
Applications for grants under this competition must be submitted by mail or hand delivery. For information (including dates and times) about how to submit your application by mail or hand delivery, please refer to section IV. 6. Other Submission Requirements in this notice.
We do not consider an application that does not comply with the deadline requirements.
4.
5.
6.
If you submit your application by mail (through the U.S. Postal Service of a commercial carrier), you must mail the original and three copies of your application, on or before the application deadline date, to the Department at the applicable following address:
By mail through the U.S. Postal Service:
By mail through a commercial carrier:
Regardless of the address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you submit your application by hand delivery, you or a courier service) must deliver the original and three copies of your application, by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.215L), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.
Requirements listed in the NFP published elsewhere in this issue of the
3.
4.
(1) The percentage of students who score at the proficient and advanced levels on the reading/language arts and mathematics assessments used by the State to determine whether a school has made adequate yearly progress under part A of title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7249), as amended by Public Law 107-110, the No Child Left Behind Act of 2001, as well as these percentages disaggregated by subject matter and the following subgroups:
(A) Major racial and ethnic groups;
(B) Students with disabilities;
(C) Students with limited English proficiency; and
(D) Economically disadvantaged students.
(2) The school's graduation rate, as defined in the State's approved accountability plan for Part A of title I of the ESEA;
(3) The percentage of graduates who enroll in postsecondary education, apprenticeships, or advanced training for the semester following graduation;
(4) The percentage of graduates who are employed by the end of the first quarter after they graduate (
(5) Other appropriate indicators the LEA may choose to identify in its application, such as rates of average daily attendance and year-to-year retention; achievement and gains in English proficiency of limited English proficient students; the incidence of school violence, drug and alcohol use, and disciplinary actions; or the percentage of students completing advanced placement courses and the rate of passing advanced placement tests (such as Advanced Placement and International Baccalaureate) and courses for college credit.
Applicants are required to include in their applications baseline data for each of these indicators and identify performance objectives for each year of the project period. We further require recipients of grants to report annually on the extent to which each school achieves its performance objectives for each indicator during the preceding school year. We require grantees to include in these reports comparable data, if available, for the preceding three school years so that trends in performance will be more apparent.
Deborah Williams, U.S. Department of Education, OVAE, 400 Maryland Avenue, SW., Potomac Center Plaza, room 11064, Washington, DC 20202-7241. Telephone: (202) 245-7770 or via Internet:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Vocational and Adult Education, Department of Education.
Notice of final priority, requirements, definitions, and selection criteria for fiscal year (FY) 2004 and subsequent years' funds.
The Assistant Secretary for Vocational and Adult Education announces a priority, requirements, definitions, and selection criteria under the Smaller Learning Communities (SLC) program. The Assistant Secretary will use this priority, requirements, definitions, and selection criteria for a competition using fiscal year (FY) 2004 funds and may use them in later years.
We intend the priority, requirements, definitions, and selection criteria to further the purpose of the SLC program, which is to promote academic achievement through the creation or expansion of small, safe, and successful learning environments in large public high schools.
The final priority, requirements, definitions, and selection criteria are effective May 31, 2005.
Deborah Williams, U.S. Department of Education, OVAE, 400 Maryland Avenue, SW., Potomac Center Plaza, room 11064, Washington, DC 20202-7241. Telephone: (202) 245-7770 or via Internet:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
The Smaller Learning Communities program is authorized under Title V, Part D, subpart 4 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7249), as amended by Public Law 107-110, the No Child Left Behind Act of 2001 (ESEA).
A strategy that may hold promise for improving the academic performance of our Nation's young people is the establishment of smaller learning communities as components of comprehensive high school improvement plans. The problems of large high schools and the related question of optimal school size have been debated for the last 40 years and are of growing interest today.
While the research on school size to date has been largely nonexperimental, some evidence suggests that smaller schools may have advantages over larger schools. Research suggests that the positive outcomes associated with smaller schools stem from the schools' ability to create close, personal environments in which teachers can work collaboratively, with each other and with a small set of students, to challenge students and support learning. A variety of structures and operational strategies are thought to provide important supports for smaller learning environments; some data suggest that these approaches offer substantial advantages to both teachers and students (Ziegler 1993; Caroll 1994).
Structural changes for recasting large schools as a set of smaller learning communities (SLCs) are described in the Conference Report for the Consolidated Appropriations Act, 2000 (Pub. L. 106-113, H.R. Conference Report No. 106-479, at 1240 (1999)). Such methods include establishing small learning clusters, “houses,” career academies, magnet programs, and schools-within-a-school. Other activities may include freshman transition activities, advisory and adult advocate systems, academic teaming, multi-year groupings, “extra help” or accelerated learning options for students or groups of students entering below grade level, and other innovations designed to create a more personalized high school experience for students. These structural changes and personalization strategies, by themselves, are not likely to improve student academic achievement. They might, however, create valuable opportunities to improve the quality of instruction and curriculum and to provide the individualized attention and academic support that all students need to excel academically. The SLC program encourages local educational agencies (LEAs) to set higher academic expectations for all of their students and to implement reforms that will provide the effective instruction and personalized academic and social support students need to meet those expectations.
The Department's ongoing efforts to ensure improved outcomes for students enrolled in programs funded by the SLC program are reflected in this notice. Many of the changes represent an effort to provide grantees with sufficient time and resources to carry out their plans for raising academic achievement through comprehensive structural and instructional reforms. Toward that end, we are extending the project period from three to five years. In addition, we are increasing the award amounts for individual grants.
In an attempt to facilitate the application process, encourage more LEAs to apply, and raise the quality of proposals received, we have streamlined the number of selection criteria from the previous competition. The priority, requirements, definitions, and selection criteria in this notice continue to focus on making the curriculum more rigorous and improving instruction through SLC structures and strategies.
We published a notice of proposed priority, requirements, definitions, and selection criteria for fiscal year (FY) 2004 and subsequent years' funds in the
In response to our invitation in the NPP, 17 parties submitted comments. An analysis of the comments and of any changes in the priority, requirements,
Generally, we do not address technical and other minor changes—and suggested changes the law does not authorize us to make under the applicable statutory authority.
This notice of final priority, requirements, definitions, and selection criteria does not solicit applications. In any year in which we choose to use this priority, requirements, definitions, and selection criteria, we invite applications through a notice in the
This priority supports projects to create or expand SLCs that will implement a coherent set of strategies and interventions that are designed to ensure that all students who enter high school with reading/language arts or mathematics skills that are significantly below grade level “catch up” quickly so that, by no later than the end of the 10th grade, they have acquired the reading/language arts and mathematics skills they need to participate successfully in rigorous academic courses that will equip them with the knowledge and skills necessary to transition successfully to postsecondary education, apprenticeships, or advanced training.
These accelerated learning strategies and interventions must:
(1) Be grounded in the findings of scientifically based and other rigorous research;
(2) Include the use of age-appropriate instructional materials and teaching and learning strategies;
(3) Provide additional instruction and academic support during the regular school day, which may be supplemented by instruction that is provided before or after school, on weekends, and at other times when school is not in session; and
(4) Provide sustained professional development and ongoing support for teachers and other personnel who are responsible for delivering instruction.
The Assistant Secretary announces the following application requirements for this SLC competition. These requirements are in addition to the content that all SLC grant applicants must include in their applications as required by the program statute in title V, part D, subpart 4, section 5441(b) of the ESEA. LEAs, including schools funded by the Bureau of Indian Affairs and educational service agencies, applying on behalf of large public high schools, are eligible to apply for a grant. A discussion of each application requirement follows:
To be considered for funding, LEAs must identify in their applications the name(s) of the eligible large high school(s) and the number of students enrolled in each school. A large high school is defined as one having grades 11 and 12, with 1,000 or more students enrolled in grades 9 and above. Enrollment figures must be based upon data from the current school year or data from the most recently completed school year. We will not accept applications from LEAs applying on behalf of schools that are being constructed and do not have an active student enrollment at the time of application. LEAs may apply on behalf of no more than 10 schools.
We require that LEAs provide, for each school included in the application, the most recent “report card” produced by the State or the LEA to inform the public about the characteristics of the school and its students, including information about student academic achievement and other student outcomes. These “report cards” must include, at a minimum, the following information that LEAs are required to report for each school under section 1111(h)(2)(B)(ii) of the ESEA: (1) Whether the school has been identified for school improvement and (2) information that shows how the academic assessments and other indicators of adequate yearly progress compare to those indicators for students in the LEA as a whole and also shows the performance of the school's students on statewide assessments.
We will award implementation grants to applicants to support the creation or expansion of an SLC or SLCs within each targeted high school. We will not fund any planning grants this year; however, full implementation is not expected in the first year of the grant. In the first year of the implementation grant, grantees will be allowed to continue planning activities including, but not limited to, (a) convening stakeholders who are actively involved in the continuing development of the new SLCs or expansion of SLCs at the targeted schools; (b) investigating and testing new structures and strategies to be implemented throughout the performance period; (c) piloting more rigorous academic courses and requirements to better prepare students for transition to postsecondary education; (d) surveying staff to inform the plans for high quality and sustained professional development throughout the implementation process; (e) conducting surveys of students, staff, and community stakeholders to inform continuous improvement throughout the implementation process; and (f) collecting and analyzing data to inform the initiatives planned for the implementation project.
Grants will be awarded for a period up to 60 months. We require that applicants provide detailed, yearly budget information for the total grant period requested. Understanding the unique complexities of implementing a program that affects a school's organization, physical design, curriculum, instruction, and preparation of teachers, we will award the entire grant amount at the time of the initial award. We also require that applicants provide detailed yearly plans, including benchmarks, for the total grant period requested.
In an effort to encourage systemic, district-level reform efforts, we permit an individual LEA to submit only one grant application in a competition, specifying in each application which high schools the LEA intends to fund.
In addition, we require that an LEA applying for a grant under this competition apply only on behalf of a high school or high schools for which it has governing authority, unless the LEA is an educational service agency that includes in its application evidence that the entity that has governing authority over the eligible high school supports the application. An LEA, however, may form a consortium with another LEA and submit a joint application for funds. The consortium must follow the procedures for group applications described in 34 CFR 75.127-75.129 in the Education Department General Administrative Regulations (EDGAR).
An LEA is eligible for only one grant whether the LEA applies independently or as part of a consortium.
LEAs may receive, on behalf of a single school, up to $1,175,000, depending upon the size of the school. This award is for the full 60-month project period. LEAs applying on behalf of a group of eligible schools could receive up to $11,750,000 per grant. To ensure that sufficient funds are available to support SLC activities, LEAs may not include more than 10 schools in a single application for a grant.
The following chart provides the ranges of awards per high school size for 60-month SLC grants:
The actual size of awards will be based on a number of factors. These factors include the scope, quality, and comprehensiveness of the proposed project and the range of awards indicated in the application.
Applications that request more funds than the maximum amounts specified for any school or for the total grant will not be read as part of the regular application process. However, if after the Secretary selects applications to be funded, it appears that additional funds remain available, the Secretary may choose to read those additional applications that requested funds exceeding the maximum amounts specified. If the Secretary chooses to fund any of those additional applications, applicants will be required to work with the Department to revise their proposed budgets to fit within the appropriate funding range.
We require applicants for SLC grants to include a description of how students will be selected or placed in an SLC and an assurance that students will not be placed according to ability or any other measure, but will be placed at random or by student/parent choice and not pursuant to testing or other judgments.
We require applicants for grants to create or expand an SLC project that will include every student within the school by no later than the end of the fifth school year of implementation. Elsewhere in this notice, we define an SLC as an environment in which a group of teachers and other adults within the school knows the needs, interests, and aspirations of each student well, closely monitors each student's progress, and provides the academic and other support each student needs to succeed.
We require applicants to identify in their application specific performance indicators and annual performance objectives for each of these indicators. Specifically, we require applicants to use the following performance indicators to measure the progress of each school:
(1) The percentage of students who score at the proficient and advanced
(A) Major racial and ethnic groups;
(B) Students with disabilities;
(C) Students with limited English proficiency; and
(D) Economically disadvantaged students.
(2) The school's graduation rate, as defined in the State's approved accountability plan for part A of title I of the ESEA;
(3) The percentage of graduates who enroll in postsecondary education, apprenticeships, or advanced training for the semester following graduation;
(4) The percentage of graduates who are employed by the end of the first quarter after they graduate (
(5) Other appropriate indicators the LEA may choose to identify in its application, such as rates of average daily attendance and year-to-year retention; achievement and gains in English proficiency of limited English proficient students; the incidence of school violence, drug and alcohol use, and disciplinary actions; or the percentage of students completing advanced placement courses and the rate of passing advanced placement tests (such as Advanced Placement and International Baccalaureate) and courses for college credit.
Applicants are required to include in their applications baseline data for each of these indicators and identify performance objectives for each year of the project period. We further require recipients of grants to report annually on the extent to which each school achieves its performance objectives for each indicator during the preceding school year. We require grantees to include in these reports comparable data, if available, for the preceding three school years so that trends in performance will be more apparent.
We require each applicant to provide assurances that it will support an evaluation of the project that provides information to the project director and school personnel, and that will be useful in gauging the project's progress and in identifying areas for improvement. Each evaluation must include an annual report for each of the first four years of the project period and a final report that would be completed at the end of the fifth year of implementation and that will include information on implementation during the fifth year as well as information on the implementation of the project across the entire project period. We require grantees to submit each of these reports to the Department.
In addition, we require that the evaluation be conducted by an independent third party, selected by the applicant, whose role in the project is limited to conducting the evaluation.
Requirements listed in this notice are material requirements. Failure to comply with any requirement or with any elements of the grantee's application would subject the grantee to administrative action, including but not limited to designation as a “high-risk” grantee, the imposition of special conditions, or termination of the grant. Circumstances that might cause the Department to take such action include, but are not limited to: the grantee showing a decline in student achievement after two years of implementation of the grant; the grantee's failure to make substantial progress in completing the milestones outlined in the management plan included in the application; and the grantee's expenditure of funds in a manner that is inconsistent with the budget as submitted in the application.
Applicants must set aside adequate funds within their proposed budget to send their project director to a two-day project directors' meeting in Washington, DC, and to send a team of five key staff members, including their external evaluator, to attend a two-and-a-half-day Regional Institute. The Department will host both meetings.
An LEA that was awarded an implementation grant on behalf of a school under the original SLC program competition held in 2000 (Cohort 1) may apply on behalf of the school for a second SLC grant under the terms set forth in this notice. An LEA that was awarded an implementation grant on behalf of a school under the competition held in 2002 (Cohort 2) may apply on behalf of the school for a second grant under the terms set forth in this notice. LEAs would not be able to apply for funding on behalf of schools that received an SLC implementation grant under the competitions held in 2003 (Cohort 3) and 2004 (Cohort 4).
In addition to the definitions set out in the authorizing statute and 34 CFR 77.1, the following definitions also apply to this program:
The following selection criteria will be used to evaluate applications for new grants under this program. We may apply these selection criteria to any SLC competition in the future.
The maximum score for a grant under this program is 100 points. The points or weights assigned to each criterion and sub-criterion are indicated in parentheses.
In determining the need for the proposed project, we consider the extent to which the applicant will:
(1) Assist schools that have the greatest need for assistance, as indicated by, relative to other high schools within the State, one or more of the factors below:
(A) Student performance on the academic assessments in reading/language arts and mathematics administered by the State under part A, Title I of the ESEA, including gaps in the performance of all students and that of student subgroups, such as economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, or students with limited English proficiency.
(B) The school's dropout rate and gaps in the graduation rate between all students and student subgroups.
(C) Disciplinary actions.
(D) The percentage of graduates who enroll in postsecondary education, apprenticeships, or advanced training in the semester following graduation, and gaps between all students and student subgroups.
In determining the quality of the implementation plan for the proposed
(1)(5 points) Teachers and administrators within each school support the proposed project and have been and will continue to be involved in its planning and development, including, particularly, those teachers who will be directly affected by the proposed project.
(2)(5 points) Parents, students, and other community stakeholders support the proposed project and have been and will continue to be involved in its planning and development.
(3)(5 points) The proposed project is consistent with, and will advance, State and local initiatives to increase student achievement and narrow gaps in achievement between all students and student subgroups.
(4)(5 points) The applicant demonstrates that it has carried out sufficient planning and preparatory activities to enable it to begin to implement the proposed project at the beginning of the school year immediately following receipt of an award.
In determining the quality of the project design for the SLC project, we consider the extent to which—
(1)(5 points) The applicant will implement or expand strategies, new organizational structures, or other changes in practice that are likely to create an environment in which a core group of teachers and other adults within the school knows the needs, interests, and aspirations of each student well, closely monitors each student's progress, and provides the academic and other support each student needs to succeed;
(2)(5 points) The applicant proposes research-based strategies that are likely to improve overall student achievement and other outcomes (including graduation rates and enrollment in postsecondary education), narrow any gaps in achievement between all students and student subgroups, and address the particular needs identified by the school under the paragraph titled Need for the Project, such as—
(A) More rigorous academic curriculum for all students and the provision of academic support to struggling students who need assistance to master more challenging academic content;
(B) More intensive and individualized educational counseling and career and college guidance, provided through mentoring, teacher advisories, adult advocates, or other means;
(C) Strategies designed to increase average daily attendance, increase the percentage of students who transition from the 9th to 10th grade, and improve the graduation rate; and
(D) Expanding opportunities for students to participate in advanced placement courses and other academic and technical courses that offer both high school and postsecondary credit.
(3)(5 points) The applicant will implement accelerated learning strategies and interventions that will assist students who enter the school with reading/language or mathematics skills that are significantly below grade level and that:
(A) Are designed to equip participating students with grade-level reading/language arts and mathematics skills by no later than the end of the 10th grade;
(B) Are grounded in scientifically based research;
(C) Include the use of age-appropriate instructional materials and teaching and learning strategies;
(D) Provide additional instructional and academic support during the regular school day, which may be supplemented by instruction that is provided before or after school, on weekends, and at other times when school is not in session;
(E) Will be delivered with sufficient intensity to improve the reading/language arts or math skills, as appropriate, of participating students; and
(F) Include sustained professional development and ongoing support for teachers and other personnel who are responsible for delivering instruction.
(4)(5 points) The applicant will provide high-quality professional development throughout the project period that advances the understanding of teachers, administrators, and other school staff of effective, research-based instructional strategies for improving the academic achievement of students, including, particularly, students with academic skills that are significantly below grade level, and provide the knowledge and skills those staff need to participate effectively in the development, expansion, or implementation of an SLC.
(5)(5 points) The proposed project fits into a comprehensive district high school improvement strategy to increase the academic achievement of all district high school students, reduce gaps between the achievement of all students and student subgroups, and prepare students to enter postsecondary education or the workforce.
(6)(5 points) The proposed project is part of a cohesive plan that uses funds provided under the ESEA, the Carl D. Perkins Vocational and Technical Education Act, or other Federal programs, as well as local, State, and private funds sufficient to ensure continuation of efforts after Federal support ends.
In determining the quality of the management plan for the proposed project, we consider the following factors:
(1)(5 points) The adequacy of the proposed management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities and detailed timelines and milestones for accomplishing project tasks;
(2)(5 points) The extent to which time commitments of the project director and other key personnel are appropriate and adequate to implement the SLC project effectively.
(3)(5 points) The qualifications, including relevant training and experience, of the project director and other key personnel; and
(4)(5 points) The adequacy of resources, including the extent to which the budget is adequate and costs are directly related to the objectives and SLC activities.
In determining the quality of the proposed project evaluation conducted by an independent, third party evaluator, we consider the following factors—
(1)(5 points) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed SLC project;
(2)(5 points) The extent to which the evaluation will collect and report accurate qualitative and quantitative data that will be useful in assessing the success and progress of implementation, including, at a minimum—
(A) Measures of student academic achievement that provide data for the performance indicators identified in the application, including results that are disaggregated for economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, students with limited English proficiency, and other subgroups identified by the applicant; and
(B) Other measures identified by the applicant in the application as performance indicators;
(3)(5 points) The extent to which the methods of evaluation will provide timely and regular feedback to the LEA and the school on the success and progress of implementation and identify areas for needed improvement.
(4)(5 points) The qualifications and relevant training and experience of the independent evaluator.
This notice of final priority, requirements, definitions, and selection criteria has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with this notice of final priority, requirements, definitions, and selection criteria are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of final priority, requirements, definitions, and selection criteria, we have determined that the benefits of the final priority, requirements, definitions, and selection criteria justify the costs.
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive Order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
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20 U.S.C. 7249.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS implements measures to establish target total allowable catch (TAC) levels for the monkfish fishery for the 2005 fishing year (FY), and adjust trip limits and days-at-sea (DAS) for limited access monkfish vessels fishing in the Southern Fishery Management Area (SFMA). Based on formulas established in Framework Adjustment 2 (Framework 2) to the Monkfish Fishery Management Plan (FMP), this final rule establishes FY 2005 target TACs of 13,160 mt for the Northern Fishery Management Area (NFMA), and 9,673 mt for the SFMA; and adjusts the trip limits for limited access monkfish vessels fishing in the SFMA to 700 lb (318 kg) tail weight per DAS for limited access Category A, C, and G vessels, and 600 lb (272 kg) tail weight per DAS for limited access Category B, D, and H vessels. This action also announces that the FY 2005 DAS available to all monkfish limited access vessels will be 39.3 DAS as a result of a DAS set-aside program implemented in Amendment 2 to the FMP.
Effective May 1, 2005.
Copies of the Environmental Assessment (EA), including the Regulatory Impact Review (RIR) and Initial Regulatory Flexibility Analysis (IRFA), prepared for this action are availale upon request from Paul Howard, Executive Director, New England Fishery Management Council (NEFMC), 50 Water Street, Newburyport, MA, 01950. The document is also available online at
Allison Ferreira, Fishery Policy Analyst, (978) 281-9103, fax (978) 281-9135, e-mail
Regulations implementing the FMP appear at 50 CFR part 648, subparts A and F. Regulations that set out the annual adjustment process are found at § 648.96. The FMP requires that the Monkfish Monitoring Committee (MFMC) recommend to the Mid-Atlantic Fishery Management Council (MAFMC) and the NEFMC, on an annual basis, target TACs for the NFMA and SFMA, and adjustments in DAS allocations and trip limits for limited access vessels fishing in the SFMA.
The annual target TAC-setting method that was implemented through Framework 2 to the FMP (68 FR 22325; April 28, 2003) is based on a ratio of the observed biomass index (NMFS 3-year average fall trawl survey biomass index) to the annual biomass targets (annual index targets) applied to the monkfish landings for the previous fishing year. The 2004 3-year average biomass index is below the 2004 biomass target (see Table 1). Therefore, according to the process established under Framework 2, the FY 2005 target TAC has been set proportionally below the 2003 FY landings (the most recent fishing year for which complete landing information is available). Once the annual target TACs are established, trip limits and/or DAS are adjusted accordingly, using the methodology established in Framework 2. The annual index targets are based on 10 equal increments between the 1999 biomass index (the start of the rebuilding program) and the biomass target (B
A proposed rule was published in the
This action establishes annual target TACs of 13,160 mt for the NFMA, and 9,673 mt for the SFMA for FY 2005. In addition, this action adjusts the trip limits for vessels fishing in the SFMA to 700 lb (318 kg) tail weight per DAS for limited access Category A, C, and G vessels, and 600 lb (272 kg) tail weight per DAS for limited access Category B, D, and H vessels. In order to prevent exceeding the target TAC for the SFMA, this action adjusts the FY 2005 trip limits for monkfish limited access vessels fishing in the SFMA, and initially allocates 40 DAS to all limited access permit holders. As stated above, these DAS are then reduced by less than 1 DAS per vessel to provide for the 500 DAS research set-aside approved under Amendment 2 to the FMP, leaving a final 2005 FY allocation of 39.3 DAS to all categories of monkfish limited access permit holders, with the exception of Category F, which is explained below.
Under Amendment 2 to the FMP, limited access monkfish permit holders with Category A, B, C, or D permits may elect, on an annual basis, to change to a Category F permit. Under the provisions of Amendment 2, Category F permits allow limited access monkfish vessels to fish under a 1,600-lb (726-kg) trip limit in the SFMA Offshore Fishery Program Area in exchange for a reduced DAS allocation. Category F permit DAS are reduced proportionally from the DAS allocated to Category A, B, C, and D permits, according to the ratio of the SFMA trip limit that would otherwise be in effect for that category permit to the 1,600-lb (726-kg) Category F permit trip limit. For example, in FY 2005, and assuming no carryover DAS, Category A and C permit holders who elect to switch to a Category F permit would be authorized to fish 17.2 DAS, and Category B and D permit holders would be authorized to fish 14.7 DAS. Any carryover DAS available to the permit holder would be factored into the proration and would affect the number of DAS ultimately authorized.
The trip limits in the NFMA are unchanged by this action. However, if changes to the management measures in the NFMA were required to ensure that the TAC would not be exceeded, they would be outside the scope of the current rulemaking.
The target TAC setting process, and the trip limit and DAS adjustment procedures established in Framework 2, cannot be changed by this action. A change to these procedures would require further action on behalf of the Councils in the form of a framework adjustment or an amendment to the FMP. The regulations governing framework adjustments to the FMP, specified at § 648.96(c)(3), require at least one initial meeting of the Monkfish Oversight Committee or one of the Councils, and at least two Council meetings, one at each of the MAFMC and the NEFMC. Because this action is being taken in accordance with the annual adjustment procedures for the monkfish fishery specified at § 648.96(b), such meetings are not required, and, therefore, were not conducted.
No public comments were received on the proposed rule.
In § 648.94, paragraph (b)(2)(i) is revised to include new limited access permit category G, and paragraph (b)(2)(ii) is revised to include new limited access permit category H, as provided for in the final rule implementing Amendment 2 to the FMP.
The Administrator, Northeast Region, NMFS (Regional Administrator), determined that this action to establish target TACs, trip limits, and DAS for the 2005 monkfish fishery is necessary for the conservation and management of the monkfish fishery, and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable law.
As explained below, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness date due to unavoidable time constraints required by the Magnuson-Stevens Act in the approval and implementation of Amendment 2 to the FMP. This action establishes annual measures (TACs, trip limits, DAS) for the monkfish fishery for fishing year 2005 (May 1, 2005, to April 30, 2006). However, implementation of this action could not occur until after implementation of Amendment 2 to the FMP, which contained several more substantial changes to the management system for the monkfish fishery. Following the transmittal of Amendment 2 from the Councils to NMFS, a Notice of Availability on the Amendment was published in the
This final rule has been determined to be not significant for purposes of Executive Order 12866.
This section constitutes the FRFA, which NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has prepared in support of this action. The FRFA describes the economic impact that this final rule will have on small entities. This FRFA incorporates the IRFA, any comments received on the proposed rule, NMFS's responses to those comments, and the analyses completed to support the action. There are no Federal rules that may duplicate, overlap, or conflict with this final rule. A copy of the IRFA is available from the NEFMC (see
A description of the reasons why action by the agency is being taken and the objectives of this action are explained in the preamble of the proposed rule and this final rule and are not repeated here. This action is taken under the authority of the Magnuson-Stevens Act and regulations at 50 CFR part 648.
No public comments were received on the proposed rule or on the economic analyses summarized in the IRFA.
This action will impact approximately 393 limited access monkfish permit holders that fish all or part of the fishing year in the SFMA, based on vessel landings for the 2003 FY. Of these 393 permit holders, 158 fished exclusively in the SFMA, and are likely to be most affected by this action. All of the these vessels are considered small entities under the Small Business Administration's size standards for small fishing businesses (less than $3.5 million in gross annual sales) and, therefore, there is no disproportionate impact of the regulations between large and small entities.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements.
The target TAC setting alternative adopted in Framework 2 to the FMP, and utilized in this action, is less precautionary than the other alternatives considered in Framework 2, but minimizes impacts to small entities to the greatest extent. This target TAC setting method minimizes impacts to small entities because it enables the NEFMC and MAFMC to increase the target TAC in response to an increase in monkfish stock biomass, in the absence of a reliable estimate of fishing mortality (F), but with a cap on that increase. This potential for increased fishing opportunities maximizes the overall benefits to the fishing industry.
Framework 2 considered other alternatives to the formulaic method that was chosen to establish annual TACs for monkfish. Therefore, there is no discretion through this annual adjustment process for considering other alternatives or associated management measures. The annual target TAC setting method established in Framework 2 compares annual biomass targets with a 3-year running average of the NMFS fall trawl survey. If the trawl survey biomass index is less than the annual target, as is the case for FY 2004, the target TAC in the subsequent year (FY 2005) is set to equal the monkfish landings for the previous fishing year (FY 2003), minus the percentage difference between the 3 year average biomass index and the annual index target (see Table 1).
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. The guide will be sent to all vessels issued a limited access monkfish permit, and to all Federal dealers issued a monkfish permit. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(b) * * *
(2) * * *
(i)
(ii)