Office of Personnel Management.
Interim rule with request for comments.
The Office of Personnel Management (OPM) is issuing interim rules applicable to nuclear materials couriers employed under the Civil Service Retirement System (CSRS) and the Federal Employees' Retirement System (FERS). These interim rules are pursuant to the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 enacted on October 17, 1998. The Act provides early retirement and enhanced annuity benefits for nuclear materials couriers employed by the United States Department of Energy under CSRS and FERS; requires an increase in the percentage rate of withholdings from the basic pay of nuclear material couriers; and establishes mandatory retirement of nuclear materials couriers at age 57. These regulations are necessary to put the new retirement provisions into effect.
Interim rules effective January 18, 2000; comments must be received on or before March 20, 2000.
Send comments to Mary Ellen Wilson; Office of Personnel Management; RIS/RPD, Room 4351; 1900 E Street, N.W.; Washington, DC 20415-3200; or deliver to OPM, Room 4351, 1900 E Street, NW., Washington, DC. Comments may also be submitted by electronic mail to combox@opm.gov.
Kenneth R. Brown, (202) 606-0299.
Sections 8336(c) and 8412(d) of title 5, U.S. Code have been amended by section 3154 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Public Law 105-261, 112 Stat. 1920, to authorize immediate retirement benefits at age 50 for Federal employees who have completed 20 years of Federal civilian service as a nuclear materials courier with the United States Department of Energy. Section 8412(d) of title 5, U.S. Code has also been amended by Public Law 105-261 to authorize immediate retirement at any age for Federal employees who have completed 25 years of service as a nuclear materials courier with the United States Department of Energy. These amendments apply only to individuals who are employed as a nuclear materials courier after October 17, 1998, the date of enactment of Public Law 105-261.
Under Public Law 105-261 the enhanced basic annuity computations provided by sections 8339(d) (CSRS) and 8415(d) (FERS) of title 5, U.S. Code are now applicable to nuclear materials couriers. Beginning with the first pay period that began after October 17, 1998, nuclear material couriers became subject to the same percentage rate of withholdings from basic pay applicable to law enforcement officers and firefighters. Effective October 17, 1999, nuclear materials couriers are also subject to the mandatory separation (at age 57) provisions of sections 8335(b) (CSRS) and 8425(b) (FERS) of title 5, U.S. Code.
For purposes of the Civil Service Retirement System and the Federal Employees' Retirement System,
Section 3154 of Public Law 105-261, 112 Stat. 1920, establishes a separate class of employees who can earn enhanced basic annuity computations provided by sections 8339(d) (CSRS) and 8415(d) (FERS) of title 5, U.S. Code. Although a “nuclear materials courier” is not a “law enforcement officer,” the procedure that the Secretary of Energy must follow to make a “nuclear materials courier” coverage determination is similar to the procedures currently used by an agency head in a “law enforcement officer” coverage determination under 5 C.F.R. part 831, subpart I.
Under 5 U.S.C. 553(b)(3)(B), I find that good cause exists for waiving the general notice of proposed rulemaking, and for making these rules effective in less than 30 days. These regulations will affect the eligibility for immediate retirement, the computation of annuity, employee deductions from basic pay, agency contributions, and mandatory separation for nuclear materials couriers under the Civil Service Retirement System and the Federal Employees' Retirement System on and after October 17, 1998. Publication of a general notice on proposed rulemaking would be contrary to the public interest because it would delay the retirement of nuclear materials couriers under the provisions of Public Law 105-261 and would hinder the Department of Energy's effective management of the nuclear materials courier workforce.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement benefits of retired nuclear materials couriers and their survivors.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Administrative practice and procedure, Air traffic controllers, Alimony, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental
Accordingly, OPM is amending 5 CFR parts 831 and 842 as follows:
1. The authority citation for part 831 is revised to read as follows:
5 U.S.C. 8347; § 831.102 also issued under 5 U.S.C. 8334; § 831.106 also issued under 5 U.S.C. 552a; § 831.114 also issued under 5 U.S.C. 8336(d)(2) and section 7001 of Pub. L. 105-174, 112 Stat. 58, as amended by section 651 of Pub. L. 106-58, 113 Stat. 430; § 831.201(b)(1) also issued under 5 U.S.C. 8347(g); § 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); § 831.201(g) also issued under sections 11202(f), 11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; § 831.201(g) also issued under sections 7(b) and 7(e) of Pub. L. 105-274, 112 Stat. 2419; § 831.201(i) also issued under sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; § 831.204 also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; § 831.303 also issued under 5 U.S.C. 8334(d)(2); § 831.502 also issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp. p. 317; § 831.663 also issued under 5 U.S.C. 8339(j) and (k)(2); §§ 831.663 and 831.664 also issued under section 11004 (c)(2) of Pub. L. 103-66, 107 Stat. 412; § 831.682 also issued under section 201(d) of Pub. L. 99-251, 100 Stat. 23; subpart L also issued under 5 U.S.C. 8337; subpart V also issued under 5 U.S.C. 8343a and section 6001 of Pub. L. 100-203, 101 Stat. 1330-275; § 831.2203 also issued under section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388-328.
(b)(1) The head of the agency, when in his or her judgment the public interest so requires, may exempt a law enforcement officer, firefighter or nuclear materials courier from automatic separation until that employee becomes 60 years of age.
(c) When a department or agency lacks authority and wishes to secure an exemption from automatic separation for one of its employees other than a Presidential appointee, beyond the age(s) provided by statute,
(a) This subpart contains regulations of the Office of Personnel Management (OPM) to supplement 5 U.S.C. 8336(c), which establishes special retirement eligibility for nuclear materials couriers employed under the Civil Service Retirement System; 5 U.S.C. 8334(a)(1) and (c), pertaining to deductions, contributions, and deposits; 5 U.S.C. 8335(b), pertaining to mandatory retirement; and 5 U.S.C. 8339(d), pertaining to computation of annuity.
(b) The regulations in this subpart are issued pursuant to the authority given to OPM in 5 U.S.C. 8347 to prescribe regulations to carry out 5 U.S.C., chapter 83, subchapter III, and in 5 U.S.C. 1104 to delegate authority for personnel management to the heads of agencies.
In this subpart—
(1)(i) Are paramount in influence or weight; that is, constitute the basic reasons for the existence of the position;
(ii) Occupy a substantial portion of the individual's working time over a typical work cycle; and
(iii) Are assigned on a regular and recurring basis.
(2) Duties that are of an emergency, incidental, or temporary nature cannot be considered
(1) Is clearly in the nuclear materials transportation field;
(2) Is in an organization of the Department of Energy having a nuclear materials transportation mission; and
(3) Is either—
(i) Supervisory; i.e., a position whose primary duties are as a first-level supervisor of nuclear materials couriers in primary positions; or
(ii) Administrative; i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary nuclear materials courier position is a prerequisite.
(a) An employee's service in a position that has been determined by the Secretary of the Department of Energy to be a primary nuclear materials courier position is covered under the provisions of 5 U.S.C. 8336(c).
(b) An employee who is not in a primary position, nor covered while in a secondary position, and who is detailed or temporarily promoted to a
(a) An employee's service in a position that has been determined by the Secretary of the Department of Energy to be a secondary nuclear materials courier position following 3 years of service in a primary nuclear materials courier position is covered under the provisions of 5 U.S.C. 8336(c) if all of the following criteria are met:
(1) The employee is transferred directly (
(2) If applicable, the employee has been continuously employed in secondary positions since transferring from a primary position without a break in service exceeding 3 days, except that a break in employment in secondary positions which begins with an involuntary separation (not for cause), within the meaning of 5 U.S.C. 8336(d)(1), is not considered in determining whether the service in secondary positions is continuous for this purpose.
(b) An employee who is not in a primary position, nor covered while in a secondary position, and who is detailed or temporarily promoted to a secondary position is not covered under the provisions of 5 U.S.C. 8336(c).
(a) The Secretary of Energy's determination under § 831.803 that a position is a primary position must be based solely on the official position description of the position in question, and any other official description of duties and qualifications. The official documentation for the position must establish that it satisfies the requirements defined in § 831.802.
(b) A determination under § 831.804 must be based on the official position description and any other evidence deemed appropriate by the agency head for making the determination.
(c) If an employee is in a position not subject to the one-half percent higher withholding rate of 5 U.S.C. 8334(a)(1), and the employee does not, within 6 months after entering the position or after any significant change in the position, formally and in writing seek a determination from the employing agency that his or her service is properly covered by the higher withholding rate, the agency head's determination that the service was not so covered at the time of the service is presumed to be correct. This presumption may be rebutted by a preponderance of the evidence that the employee was unaware of his or her status or was prevented by cause beyond his or her control from requesting that the official status be changed at the time the service was performed.
(a) An employee who requests credit for service under 5 U.S.C. 8336(c) bears the burden of proof with respect to that service, and must provide the employing agency with all pertinent information regarding duties performed.
(b) An employee who is currently serving in a position that has not been approved as a primary or secondary position, but who believes that his or her service is creditable as service in a primary or secondary position may request the agency head to determine whether or not the employee's current service should be credited and, if it qualifies, whether it should be credited as service in a primary or secondary position. A written request for current service must be made within 6 months after entering the position or after any significant change in the position.
(c) A current or former employee (or the survivor of a former employee) who believes that a period of past service in an unapproved position qualifies as service in a primary or secondary position and meets the conditions for credit may request the agency head to determine whether or not the employee's past service should be credited and, if it qualifies, whether it should be credited as service in a primary or secondary position. A written request for past service must be made no later than December 31, 2000.
(d) The agency head may extend the time limit for filing under paragraph (b) or (c) of this section when, in the judgment of such agency head, the individual shows that he or she was prevented by circumstances beyond his or her control from making the request within the time limit.
(a) During the service covered under the conditions established by § 831.803 and § 831.804, the Department of Energy will deduct and withhold from the employee's base pay the amount required under 5 U.S.C. 8334(a) for such positions and submit that amount, together with agency contributions required by 5 U.S.C. 8334(a), to OPM in accordance with payroll office instructions issued by OPM.
(b) If the correct withholdings and/or Government contributions are not submitted to OPM for any reason whatsoever, including cases in which it is finally determined that past service of a current or former employee was subject to the higher deduction and Government contribution rates, the Department of Energy must correct the error by submitting the correct amounts (including both employee and agency shares) to OPM as soon as possible. Even if the Department of Energy waives collection of the overpayment of pay under any waiver authority that may be available for this purpose, such as 5 U.S.C. 5584, or otherwise fails to collect the debt, the correct amount must still be submitted to OPM without delay as soon as possible.
(c) Upon proper application from an employee, former employee or eligible survivor of a former employee, the Department of Energy will pay a refund of erroneous additional withholdings for service that is found not to have been covered service. If an individual has paid to OPM a deposit or redeposit, including the additional amount required for covered service, and the deposit or redeposit is later determined to be erroneous because the service was not covered service, OPM will pay the refund, upon proper application, to the individual, without interest.
(d) The additional employee withholding and agency contribution for covered or creditable service properly made as required under 5 U.S.C. 8334(a)(1) or deposited under 5 U.S.C. 8334(c) are not separately refundable, even in the event that the employee or his or her survivor does not qualify for a special annuity computation under 5 U.S.C. 8339(d).
(e) While an employee who does not hold a primary or secondary position is detailed or temporarily promoted to a primary or secondary position, the additional withholdings and agency contributions will not be made. While an employee who does hold a primary or secondary position is detailed or temporarily promoted to a position which is not a primary or secondary position, the additional withholdings and agency contributions will continue to be made.
(a) Effective on and after October 17, 1999, the mandatory separation provisions of 5 U.S.C. 8335(b) apply to all nuclear materials couriers in primary and secondary positions. A mandatory separation under 5 U.S.C. 8335(b) is not an adverse action under part 752 of this chapter or a removal action under part 359 of this chapter. Section 831.502 provides the procedures for requesting an exemption from mandatory separation.
(b) In the event an employee is separated mandatorily under 5 U.S.C.
An employee who has been mandatorily separated under 5 U.S.C. 8335(b) is not barred from reemployment in any position except a primary position after age 60. Service by a reemployed annuitant is not covered by the provisions of 5 U.S.C. 8336(c).
The following decisions may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board:
(a) The final decision of the Department of Energy issued to an employee, former employee, or survivor as the result of a request for determination filed under § 831.806; and
(b) The final decision of the Department of Energy that a break in service referred to in § 831.804(a)(2) did not begin with an involuntary separation within the meaning of 5 U.S.C. 8336(d)(1).
(a) Upon deciding that a position is a nuclear materials courier position, the agency head must notify OPM (Attention: Associate Director for Retirement and Insurance) stating the title of each position, the number of incumbents, and whether the position is primary or secondary. The Director of OPM retains the authority to revoke the agency head's determination that a position is a primary or secondary position, or that an individual's service in any other position is creditable under 5 U.S.C. 8336(c).
(b) The Department of Energy must establish a file containing each coverage determination made by the agency head under § 831.803 and § 831.804, and all background material used in making the determination.
(c) Upon request by OPM, the Department of Energy will make available the entire coverage determination file for OPM to audit to ensure compliance with the provisions of this subpart.
(d) Upon request by OPM, the Department of Energy must submit to OPM a list of all covered positions and any other pertinent information requested.
5 U.S.C. 8461(g); §§ 842.104 and 842.106 also issued under 5 U.S.C. 8461(n); § 842.104 also issued under sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; § 842.105 also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); § 842.106 also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; § 842.107 also issued under sections 11202(f), 11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; § 842.107 also issued under section 7(b) of Pub. L. 105-274, 112 Stat. 2419; § 842.108 also issued under section 7(e) of Pub. L. 105-274, 112 Stat. 2419; § 842.213 also issued under 5 U.S.C. 8414(b)(1)(B) and section 7001 of Pub. L. 105-174, 112 Stat. 58, as amended by section 651 of Pub. L. 106-58, 113 Stat. 430; §§ 842.604 and 842.611 also issued under 5 U.S.C. 8417; § 842.607 also issued under 5 U.S.C. 8416 and 8417; § 842.614 also issued under 5 U.S.C. 8419; § 842.615 also issued under 5 U.S.C. 8418; § 842.703 also issued under section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388; § 842.707 also issued under section 6001 of Pub. L. 100-203, 101 Stat. 1300; § 842.708 also issued under section 4005 of Pub. L. 101-239, 103 Stat. 2106 and section 7001 of Pub. L. 101-508, 104 Stat. 1388; subpart H also issued under 5 U.S.C. 1104.
(a) An employee who separates from service, except by removal for cause on charges of delinquency or misconduct, is entitled to an annuity—
(1) After completing any combination of service as a firefighter, law enforcement officer or nuclear materials courier totaling 25 years; or
(2) After becoming age 50 and completing any combination of service as a firefighter, law enforcement officer or nuclear materials courier totaling 20 years.
The annuity of an air traffic controller retiring under § 842.207 or a law enforcement officer, firefighter or nuclear materials courier retiring under § 842.208 is—
(a) One and seven-tenths percent of average pay multiplied by 20 years; plus
(b) One percent of average pay multiplied by the years of service exceeding 20 years.
(a) This subpart contains regulations of the Office of Personnel Management (OPM) to supplement—
(1) 5 U.S.C. 8412(d) and (e), which establish special retirement eligibility for law enforcement officers, firefighters, air traffic controllers, and nuclear materials couriers employed under the Federal Employees Retirement System (FERS);
(2) 5 U.S.C. 8422(a), pertaining to deductions;
(3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
(4) 5 U.S.C. 8425, pertaining to mandatory retirement.
(b) The regulations in this subpart are issued pursuant to the authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to carry out the provisions of 5 U.S.C. chapter 84 and in 5 U.S.C. 1104 to delegate authority for personnel management to the heads of agencies.
(1)(i) Are paramount in influence or weight; that is, constitute the basic reasons for the existence of the position;
(ii) Occupy a substantial portion of the individual's working time over a typical work cycle; and
(iii) Are assigned on a regular and recurring basis.
(2) Duties that are of an emergency, incidental, or temporary nature cannot be considered “primary” even if they meet the substantial portion of time criterion. In general, if an employee spends an average of at least 50 percent of his or her time performing a duty or group of duties, they are his or her primary duties.
(1) Is clearly in the nuclear materials transportation field;
(2) Is in an organization of the Department of Energy having a nuclear materials transportation mission; and
(3) Is either—
(i) Supervisory; that is, a position whose primary duties are as a first-level supervisor of nuclear materials couriers in primary positions; or
(ii) Administrative; that is, an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary nuclear materials courier position is a prerequisite.
(a) An employee's service in a position that has been determined by the Secretary of the Department of Energy to be a primary nuclear materials courier position is covered under the provisions of 5 U.S.C. 8412(d).
(b) An employee who is not in a primary position, nor covered while in a secondary position, and who is detailed or temporarily promoted to a primary position is not covered under the provisions of 5 U.S.C. 8412(d).
(a) An employee's service in a position that has been determined by the Secretary of the Department of Energy to be a secondary nuclear materials courier position following 3 years of service in a primary nuclear materials courier position is covered under the provisions of 5 U.S.C. 8412(d) if all of the following criteria are met:
(1) The employee is transferred directly (i.e., without a break in service exceeding 3 days) from a primary position to a secondary position; and
(2) If applicable, the employee has been continuously employed in secondary positions since transferring from a primary position without a break in service exceeding 3 days, except that a break in employment in secondary positions which begins with an involuntary separation (not for cause), within the meaning of 5 U.S.C. 8414(b)(1)(A), is not considered in determining whether the service in secondary positions is continuous for this purpose.
(b) An employee who is not in a primary position, nor covered while in a secondary position, and who is detailed or temporarily promoted to a secondary position is not covered under the provisions of 5 U.S.C. 8412(d).
(a) The Secretary of Energy's determination under § 842.903 that a position is a primary position must be based solely on the official position description of the position in question, and any other official description of duties and qualifications. The official documentation for the position must establish that it satisfies the requirements defined in § 842.902.
(b) A determination under § 842.904 must be based on the official position description and any other evidence deemed appropriate by the agency head for making the determination.
(c) If an employee is in a position not subject to the one-half percent higher withholding rate of 5 U.S.C. 8422(a)(3), and the employee does not, within 6 months after entering the position or after any significant change in the position, formally and in writing seek a determination from the employing agency that his or her service is properly covered by the higher withholding rate, the agency head's determination that the service was not so covered at the time of the service is presumed to be correct. This presumption may be rebutted by a preponderance of the evidence that the employee was unaware of his or her status or was prevented by cause beyond his or her control from requesting that the official status be changed at the time the service was performed.
(a) An employee who requests credit for service under 5 U.S.C. 8412(d) bears the burden of proof with respect to that service, and must provide the employing agency with all pertinent information regarding duties performed.
(b) An employee who is currently serving in a position that has not been approved as a primary or secondary position, but who believes that his or her service is creditable as service in a primary or secondary position may request the agency head to determine whether or not the employee's current service should be credited and, if it qualifies, whether it should be credited as service in a primary or secondary position. A written request for current service must be made within 6 months after entering the position or after any significant change in the position.
(c) A current or former employee (or the survivor of a former employee) who believes that a period of past service in an unapproved position qualifies as service in a primary or secondary position and meets the conditions for credit may request the agency head to determine whether or not the employee's past service should be credited and, if it qualifies, whether it should be credited as service in a primary or secondary position. A written request for past service must be made no later than December 31, 2000.
(d) The agency head may extend the time limit for filing under paragraph (b) or (c) of this section when, in the judgment of such agency head, the individual shows that he or she was prevented by circumstances beyond his or her control from making the request within the time limit.
(a) During service covered under the conditions established by § 842.903 (a) or (b), the Department of Energy will deduct and withhold from the employee's base pay the amounts required under 5 U.S.C. 8422(a)(3) and submit that amount to OPM in accordance with payroll office instructions issued by OPM.
(b) During service described in paragraph (a) of this section, the employing agency must submit to OPM the Government contributions required under 5 U.S.C. 8423(a) in accordance with payroll office instructions issued by OPM.
(c) If the correct withholding and/or Government contributions are not timely submitted to OPM for any reason
(d) Upon proper application from an employee, former employee or eligible survivor of a former employee, an employing agency or former employing agency will pay a refund of erroneous additional withholdings for service that is found not to have been covered service. If an individual has paid to OPM a deposit or redeposit, including the additional amount required for covered service, and the deposit is later determined to be erroneous because the service was not covered service, OPM will pay the refund, upon proper application, to the individual, without interest.
(e) The additional employee withholding and agency contributions for covered service properly made are not separately refundable, even in the event that the employee or his or her survivor does not qualify for a special annuity computation under 5 U.S.C. 8415(d).
(f) While an employee who does not hold a primary or secondary position is detailed or temporarily promoted to such a position, the additional withholdings and agency contributions will not be made.
(g) While an employee who holds a primary or secondary position is detailed or temporarily promoted to a position that is not a primary or secondary position, the additional withholdings and agency contributions will continue to be made.
(a) Effective on and after October 17, 1999, the mandatory separation provisions of 5 U.S.C. 8425 apply to all nuclear materials couriers including those in secondary positions. A mandatory separation under 5 U.S.C. 8425 is not an adverse action under part 752 of this chapter or a removal action under part 359 of this chapter.
(b) Exemptions from mandatory separation are subject to the conditions set forth under 5 U.S.C. 8425. An exemption may be granted at the sole discretion of the head of the employing agency or by the President in accordance with 5 U.S.C. 8425(c).
(c) In the event that an employee is separated mandatorily under 5 U.S.C. 8425, or is separated for optional retirement under 5 U.S.C. 8412 (d) or (e), and OPM finds that all or part of the minimum service required for entitlement to immediate annuity was in a position that did not meet the requirements of a primary or secondary position and the conditions set forth in this subpart or, if applicable, in part 831 of this chapter, such separation will be considered erroneous.
The following decisions may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board:
(a) The final decision of the Department of Energy issued to an employee, former employee, or survivor as the result of a request for determination filed under § 842.906; and
(b) The final decision of the Department of Energy that a break in service referred to in § 842.904(a)(2) did not begin with an involuntary separation within the meaning of 5 U.S.C. 8414(b)(1)(A).
(a) Upon deciding that a position is a nuclear materials courier position, the agency head must notify OPM (Attention: Associate Director for Retirement and Insurance) stating the title of each position, the number of incumbents, and whether the position is primary or secondary. The Director of OPM retains the authority to revoke the agency head's determination that a position is a primary or secondary position, or that an individual's service in any other position is creditable under 5 U.S.C. 8412(d).
(b) The Department of Energy must establish a file containing each coverage determination made by the agency head under § 842.903 and § 842.904, and all background material used in making the determination.
(c) Upon request by OPM, the Department of Energy will make available the entire coverage determination file for OPM to audit to ensure compliance with the provisions of this subpart.
(d) Upon request by OPM, the Department of Energy must submit to OPM a list of all covered positions and any other pertinent information requested.
Agricultural Marketing Service, USDA.
Final rule.
This rule decreases the assessment rate established for the South Texas Onion Committee (Committee) for the 1999-2000 and subsequent fiscal periods from $0.05 to $0.04 per 50-pound container or equivalent of onions handled. The Committee is responsible for local administration of the marketing order which regulates the handling of onions grown in South Texas. Authorization to assess onion handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period began August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
January 19, 2000.
Cynthia Cavazos, Marketing Assistant, McAllen Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 1313 E. Hackberry; telephone: (956) 682-2833, Fax: (956) 682-5942; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 720-5698, or E-mail: Jay.Guerber@usda.gov.
This rule is issued under Marketing Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, South Texas onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate issued herein will be applicable to all assessable onions beginning August 1, 1999, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule decreases the assessment rate established for the Committee for the 1999-2000 and subsequent fiscal periods from $0.05 to $0.04 per 50-pound container or equivalent of onions handled.
The South Texas onion marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of South Texas onions. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 1997-98 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate of $0.05 per 50-pound container or equivalent that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.
The Committee, in a mail vote, unanimously recommended 1999-2000 expenses of $271,000 for personnel, office, compliance, promotion, and research expenses. These expenses were approved in July 1999. The assessment rate and specific funding for research and promotion projects were to be recommended at a later Committee meeting.
The Committee subsequently met on September 16, 1999, and recommended 1999-2000 expenditures of $301,000 and an assessment rate of $0.04 per 50-pound container or equivalent of onions. In comparison, last year's budgeted expenditures were $271,000. The assessment rate of $0.04 is $0.01 lower than the rate currently in effect. The Committee voted to lower its assessment rate because at the current rate of assessment, income would have exceeded anticipated expenses by about $74,000 and the projected reserve on July 31, 2000 ($458,720), would have exceeded the level the Committee believed to be adequate to administer the program.
The major expenditures recommended by the Committee for the 1999-2000 fiscal period include $97,200 for administrative expenses, $34,800 for compliance, $36,000 for promotion, and $133,000 for research projects. Budgeted expenses for these items in 1998-99 were $94,000, $36,000, $33,000, and $108,000, respectively.
The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of South Texas onions. Onion shipments for the year are estimated at 7.5 million 50-pound equivalents, which should provide $300,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve (currently $384,720) will be kept within the maximum permitted by the order (approximately two fiscal periods' expenses; § 959.43).
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 1999-2000 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by the Department.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 80 producers of South Texas onions in the production area and approximately 37 handlers subject to regulation under the marketing order. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.601) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 1998-99 marketing year, onions produced on 13,782 acres were shipped by the industry's 37 handlers with the average and median volume handled being 147,669 and 102,478 fifty-pound bag equivalents, respectively. In terms of production value, total revenues for the 37 handlers were estimated to be $43.7 million, with average and median revenues being $1.1 million, and $820,000, respectively.
The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year.
Based on the SBA's definition of small entities, the Committee estimates that all the 37 handlers regulated by the order would be considered small entities if only their spring onion revenues are considered. However, revenues from other productive enterprises would likely push a large number of these handlers above the $5,000,000 annual receipt threshold. All of the 80 producers may be classified as small entities based on the SBA definition if only their revenue from spring onions is considered. When revenues from all sources is considered, a majority of the producers would not be considered small entities because receipts would exceed $500,000.
This rule decreases the assessment rate established for the Committee and collected from handlers for the 1999-2000 and subsequent fiscal periods from $0.05 to $0.04 per 50-pound container or equivalent of onions. The Committee recommended 1999-2000 expenditures of $301,000 and an assessment rate of $0.04 per 50-pound container or equivalent. The assessment rate of $0.04 is $0.01 lower than the 1998-99 rate. The quantity of assessable onions for the 1999-2000 fiscal period is estimated at 7.5 million 50-pound equivalents. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 1999-2000 fiscal period include $97,200 for administrative expenses, $34,800 for compliance, $36,000 for promotion, and $133,000 for research projects. Budgeted expenses for these items in 1998-99 were $94,000, $36,000, $33,000, and $108,000, respectively.
The Committee voted to lower its assessment rate because at the current rate of assessment, income would have exceeded anticipated expenses by about $74,000 and the projected reserve on July 31, 2000 ($458,720), would have exceeded the level the Committee believed to be adequate to administer the program.
The Committee's recommended 1999-2000 expenditures of $301,000, include increases in administrative and office salaries, and research programs. Prior to arriving at this budget, the Committee considered information from various sources, including the Research Subcommittee and the Market Development Subcommittee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research projects to the onion industry. The assessment rate of $0.04 per 50-pound carton or equivalent of assessable onions was then determined by dividing the total recommended budget by the quantity of assessable onions, estimated at 7.5 million 50-pound equivalents for the 1999-2000 fiscal period. This is approximately $1,000 below the anticipated expenses, which the Committee determined to be acceptable. Funds from the Committee's reserve would be used to make up the expected deficit.
A review of historical production and marketing information indicates that the grower price for the 1999 marketing season could range between $7.00 and $12.00 per 50-pound container or equivalent of onions. Therefore, the estimated assessment revenue for the 1999-2000 fiscal period as a percentage of total grower revenue could range between .571 and .333 percent.
This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the South Texas onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the September 16, 1999, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping requirements on either small or large South Texas onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Onions, Reporting and recordkeeping requirements.
1. The authority citation for 7 CFR part 959 continues to read as follows:
7 U.S.C. 601-674.
2. Section 959.237 is revised to read as follows:
On and after August 1, 1999, an assessment rate of $0.04 per 50-pound
Board of Governors of the Federal Reserve System.
Interim rule with request for comments; policy statement.
The Board of Governors of the Federal Reserve System (the Board) has an internal “Policy on Labor Relations for the Board of Governors of the Federal Reserve System,” which was revised in 1983 through notice and comment. The Board has determined that its regulation entitled “Policy on Labor Relations for the Federal Reserve Banks” should be applied to the Board policy insofar as that regulation provides procedures for processing charges of unfair labor practices. In addition, the Board is amending the references in its policy to the “Federal Reserve System Labor Relations Panel” to read “Federal Reserve Board Labor Relations Panel” which is the correct name of this panel. Further, the Board is also amending part 269a by correcting cross-references to another Board regulation.
This interim rule is effective January 19, 2000. Submit comments on or before March 20, 2000.
Comments, which should refer to Docket No. R-1056, may be mailed to the Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Attention: Ms. Jennifer J. Johnson, Secretary, or may be delivered to the Board's mail room between 9 a.m. and 5 p.m. All comments received may be inspected in Room MP-500 of the Martin Building between 9 a.m. and 5 p.m., Monday through Friday, except as provided in 12 CFR 261.11(a) of the Board's Rules Regarding Availability of Information.
Richard M. Ashton, Associate General Counsel (202-452-3750), Legal Division, Board of Governors of the Federal Reserve System. For the hearing impaired only, Telecommunication Device for the Deaf (TDD), Diane Jenkins (202-452-3544), Board of Governors of the Federal Reserve System, 20th and C Street NW, Washington, DC 20551.
Under the authority provided in the Federal Reserve Act, the Board has recognized the rights of its employees to organize and bargain collectively through recognized representatives and to be free from unfair labor practices. See Sections 10(4) and 11(l) (providing the Board exclusive authority over employment at the Board). The Board has adopted a “Policy on Labor Relations for the Board of Governors of the Federal Reserve System” which prohibits unfair labor practices and sets up the Federal Reserve Board Labor Relations Panel (Board Panel) to adjudicate charges of unfair labor practices. The policy authorizes the Board to issue rules to remedy unfair labor practices listed in the policy. The policy provides that the Board Panel will adhere to the rules and regulations promulgated by the Board for this purpose.
The Board has also adopted a “Policy on Labor Relations for the Reserve Banks,” which is very similar in many respects to the Board Policy. 12 CFR part 269. The Board policy, like the Reserve Bank policy, prohibits certain unfair labor practices. The Bank policy, which establishes a Federal Reserve System Labor Relations Panel, also contains procedures for presenting and remedying unfair labor practices. Like the Board policy, the Bank policy, including the unfair labor practice procedures, was adopted after public notice and opportunity for comment. 48 FR 18820 (April 26, 1983); 48 FR 32331 (July 15, 1983).
An unfair labor practice charge under the Board policy has recently been filed. The Board has determined that the procedures for adjudicating unfair labor practice claims and other matters provided in its “Policy on Labor Relations for the Reserve Banks” should be applied to the processing of charges of unfair labor practice filed under the Board policy.
Accordingly, the Board is amending the Board policy to provide that in processing charges of unfair labor practices under that policy, 12 CFR part 269a and 269b of the Bank policy will govern. Thus, where the Bank policy refers to “bank,” the reference will be read as referring to the “Board” and where it refers to the “Federal Reserve System Labor Relations Panel,” the reference will be read as referring to the Board Panel. In addition, the Board is correcting all references in its policy to the “Federal Reserve System Labor Relations Panel” to read “Federal Reserve Board Labor Relations Panel” which is the correct name of this panel. Further, references in part 269a to part 292, which was removed and redesignated in 1983 into part 269b after notice and public comment, will be revised to refer to the correct sections in part 269b.
Pursuant to 5 U.S.C. 553(d)(3), the Board has determined that it is unnecessary, and would be impracticable, to defer the effective date of this action until after public comments have been received and considered, although the Board will consider all public comments received and make changes in its procedures based on those comments where appropriate. The Board has also determined, pursuant to 5 U.S.C. 553(d)(3), that good cause exists to make this action effective immediately rather than to defer its effective date for 30 days. The procedures here adopted for use by the Board Panel were issued for the System Panel in 1983 following notice and public comment and the substance of the unfair labor practice provisions in the Board and the Reserve Bank policies are essentially the same. 48 FR 32331 (July 15, 1983). A pending matter under the Board policy requires that those procedures be used by the Board Panel without delay in the interest of fairness.
The Board is amending its “Policy on Labor Relations for the Board of Governors of the Federal Reserve System” published on July 15, 1983 (48 FR 32334) as set forth below:
1. Section 6, paragraph (d), of this policy is amended to read as follows:
(d) The Federal Reserve Board Labor Relations Panel will follow the rules in 12 CFR parts 269a and 269b for the prevention and remedy of the unfair labor practices listed in this Policy. For purposes of this Policy, the reference in § 269b.110 to § 269.6 will be read as referring to section 6 of this Policy. References in parts 269a and 269b to a Federal Reserve Bank will be read as referring to the Board. References in parts 269a and 269b to the Federal Reserve System Labor Relations Panel will be read as referring to the Federal Reserve Board Labor Relations Panel.
2. Every reference in the policy to the “Federal Reserve System Labor Relations Panel” is removed and the
Federal Reserve System, Labor-management relations.
For the reasons set out in the preamble, 12 CFR part 269a is amended as set forth below:
Sec. 11, 38 Stat. 261 (12 U.S.C. 248).
By order of the Board of Governors of the Federal Reserve System, January 11, 2000.
Economic Development Administration (EDA), Department of Commerce (DoC).
Interim rule with request for comments.
The Economic Development Administration (EDA) is amending its regulations consistent with recommendations of its Revolving Loan Fund Task Force, and comments received on EDA's interim-final rule to implement the comprehensive amendment to the Public Works and Economic Development Act of 1965, as amended by the Economic Development Administration Reform Act of 1998.
EDA has clarified and simplified requirements and incorporated into the body of the rules, requirements unique to EDA for Revolving Loan Fund (RLF) projects previously appearing in Appendices A-D to 13 CFR part 308.
Effective date: January 18, 2000.
Send comments to Edward M. Levin, Chief Counsel, Economic Development Administration, U.S. Department of Commerce, Herbert C. Hoover Building, 1401 Constitution Avenue, NW, Room 7005, Washington, DC 20230.
Edward M. Levin, Chief Counsel, Telephone Number 202-482-4687, fax 202-482-5671, e-mail elevin@doc.gov
The Economic Development Administration (EDA) was reauthorized for a five-year period by legislation enacted on November 13, 1998, creating stability and opportunities for EDA to better serve economically distressed communities across the country. On February 3, 1999, EDA published an interim-final rule, Economic Development Administration Regulation: Revision to Implement the Economic Development Reform Act of 1998, Pub. L. 105-393, (64 FR 5347-5486). The public was invited to submit comments on the interim-final rule for a period of sixty (60) days ending April 5, 1999. EDA had postponed the revision of the RLF requirements until recently so that the RLF Task Force recommendations and public comments could be incorporated.
EDA's Revolving Loan Fund Task Force was established to consider contemporary issues of interest to the RLF community and to make recommendations for appropriate reforms and policies that resulted from such consideration. The solicitation of comments to the Task Force was widely publicized and included published articles in weekly and monthly newsletters and web sites of several national economic development organizations. The all-Federal Task Force, which included representatives from each of EDA's six regional offices and three other Federal Agencies, considered more than sixty comments and suggestions submitted by RLF operators and economic development organizations. Resulting Task Force recommendations involving the clarification of policies or regulatory changes, some of which were also suggested by those commenting on EDA's interim-final rule, are included in this interim-final rule. These recommendations were that EDA:
1. Consider providing start-up technical assistance funding to train first time grantees and to cover the costs for administering borrower technical assistance programs associated with RLFs.
We have added a provision as new § 308.4(c)(2)(iv) to allow the use of in-kind local matching funds for such purposes.
2. Provide clear criteria for determining when RLFs graduate from a semi-annual to annual reporting status.
We have added specific requirements for graduating RLFs from a semi-annual to annual RLF reporting status, in new § 308.14(a).
3. Consider allowing loan loss reserves to be maintained by EDA RLFs.
Because EDA RLFs are capitalized by grant funds (rather than by a loan which must be repaid to the Agency), EDA believes that there is no need for RLF recipients to maintain a cash reserve against loan losses that may occur. However, EDA does agree that a loan loss reserve appearing as non-cash financial statement entries should be permitted. We have added this provision as new § 308.15(a)(2).
4. Provide more flexibility in EDA's effective utilization of funds policy (also known as the excess retention policy) so that smaller RLFs would be able to accumulate larger amounts of loan repayments to handle larger loans.
EDA has retained its basic rule, but has added a new § 308.19 clarifying the current authority to permit necessary and reasonable variances from this and other provisions that do not conflict with other legal requirements.
5. Allow all EDA funds to be disbursed for new loans, while permitting loan repayments to accumulate.
EDA does not agree with the requested change. EDA's existing practice is consistent with Federal requirements concerning disbursement of grant funds. However, the allowance of in-kind local share for RLFs has required that EDA articulate new requirements for disbursing EDA funds for RLF projects. EDA has addressed all RLF disbursement related issues in newly added § 308.16.
6. Commenters suggested that part 308, Appendix A, Economic Adjustment Program Revolving Loan Fund
We concur. Accordingly, we have removed Appendices A-D to part 308, and have incorporated requirements unique to EDA's RLF program into 13 CFR part 308.
The new condensed RLF manual to replace the
Several similar comments were received by the RLF Task Force on the Regulatory Text. Comments on regulatory text not otherwise addressed by the RLF Task Force (see above) were as follows:
A Commenter suggested that EDA make geographic eligibility criteria more flexible for regional use, noting that rural economic trade centers are often not eligible for EDA RLF grants even though they impact the adjacent jurisdictions.
EDA does not concur that additional flexibility is required. Existing regulations at § 300.2 and § 301.2 adequately address applicant eligibility and establish area eligibility criteria sufficient to qualify distressed places consistent with statutory requirements.
A commenter suggested that there be a reduction in the amount or percentage of non-Federal match needed to capitalize and recapitalize an RLF.
EDA does not concur since current requirements are consistent with EDA's statutory and regulatory requirements. Local share requirements are explained in 13 CFR 301.4(b) and new § 308.16(f).
A commenter suggested that RLFs be allowed to pledge RLF loans to regional banks in order to borrow additional funds and to guarantee another lender's loans. Another commenter suggested that EDA encourage and assist in secondary market transactions as a method of increasing an RLF's lending capacity, provided that such transactions would not be a replacement for RLF recapitalization grants.
EDA supports development of a secondary market for RLF loans. To further explore these issues, EDA is currently conducting an RLF secondary market (securitization) pilot project. Additional information on the pilot project can be found on EDA's Web Site, at http://www.doc.gov/eda.
A commenter suggested that EDA allow unlimited use of RLF program income for purposes such as local match for other grants, loan loss reserves (such as for USDA's Intermediary Relending Program) or equity contributions.
Although RLF recipients are provided wide latitude in using RLF income, which is defined in newly added § 308.8, EDA does not concur with the suggestion concerning unlimited use of RLF program income. Under 15 CFR parts l4 and 24, EDA applies the principle that program income should be used in furtherance of the purpose of the project, in this case, the EDA RLF project.
Limitations on the use of program income, consistent with 15 CFR parts l4 and 24 and longstanding EDA RLF practice, are in newly added § 308.12(a).
A commenter suggested that ceilings on administrative costs be revised or eliminated.
EDA has clarified these requirements by adding new § 308.14(c).
A commenter suggested limiting EDA's RLF reporting requirements to ten years.
While a 10 year rule does not apply to RLFs, EDA has clarified reporting requirements in new § 308.14.
Commenters suggested that EDA's property management regulations be revised to include provisions formerly found in appendices to part 308 which are unique to EDA. These provisions addressed suspension and termination of RLFs and the treatment of proceeds of liquidated RLF loans.
We concur and have changed §§ 314.4 and 314.10 accordingly.
A commenter suggested including personal guarantees as one of the required standard loan documents.
EDA concurs with this common and prudent lending practice and has included personal guarantees as a required standard loan document in a new § 308.15(b)(2)(vii).
The rights, duties, and obligations of all parties pursuant to parts, sections and portions thereof of the Code of Federal Regulations removed by this rule will continue in effect, except that EDA may waive administrative or procedural requirements of provisions removed by this rule.
This rule has been determined to be significant for purposes of E.O. 12866, Regulatory Planning and Review. In addition, it has been determined that, consistent with the requirements of E.O. 12875, Enhancing Intergovernmental Partnership, this final rule will not impose any unfunded mandates upon state, local, and tribal governments.
Since notice and an opportunity for comment are not required to be given for the rule under 5 U.S.C. 553 or any other law, under sections 603(a) and 604(a) of the Regulatory Flexibility Act (5 U.S.C. 601-612) no initial or final Regulatory Flexibility Analysis is required, and none has been prepared.
This rule imposes no new information collection or record keeping requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
This action has been reviewed in accordance with the principles and criteria contained in E.O. 12612. It has been determined that this final rule does not have significant Federalism implications to warrant a full Federalism Assessment under the principles and criteria contained in E.O. 12612.
Business and industry, Community development, Community facilities, Grant programs-business, Grant programs-community development, American Indians, Manpower training programs, Mortgages, Research, Technical assistance.
Community development, Grant programs-community development.
1. The authority citation for part 308 continues to read as follows:
42 U.S.C. 3211; Department of
2. Part 308 is amended by designating §§ 308.1 through 308.6 as Subpart A and adding a heading for Subpart A to read as follows:
3. Section 308.3 is amended by removing paragraph (c).
4. Section 308.4 is amended by revising paragraph (c)(2)(ii) and (iii) and adding paragraph (c)(2)(iv) to read as follows:
(c) * * *
(2) * * *
(ii) The types of financing activities anticipated;
(iii) The capacity of the RLF organization to manage lending, create networks between the business community and other financial providers, and contribute to the adjustment strategy; and
(iv) Use of in-kind match. When in-kind match is included in a project, such match will be used for borrower technical assistance or general RLF administrative costs (e.g. the training of new RLF staff).
5. Appendices A-D to part 308 are removed.
6. Subpart B is added to read as follows:
EDA grants to capitalize or recapitalize Revolving Loan Funds are most commonly used for business lending, but may also be established for public infrastructure lending or other authorized purposes involving lending. The RLF requirements in this subpart B are applicable to RLFs established for business lending. Appropriate modifications of these requirements will be addressed in special award conditions to accommodate non-business RLF awards.
As used in this part:
RLF recipients must manage RLFs in accordance with an RLF Plan (Plan) as described in this part. For RLF recipients other than states, the Plan must be submitted to and approved by EDA and passed by resolution of the organizations' governing board prior to the grant award; political subdivisions of states may be exempted from this requirement with EDA approval.
(a)
(2) Part I of the Plan, titled Revolving Loan Fund Strategy, summarizes the area CEDS and business development objectives, and describes the RLF's financing strategy, policy and portfolio standards. Organization of the material and the level of detail provided in the subsections of Part I may be varied to improve the narrative flow, provided the substantive content is adequately covered.
(3) Part II of the Plan, titled Operational Procedures, serves as the internal operating manual for the RLF.
(b)
(1) The Plan must flow from and be consistent with the EDA-approved CEDS for the area.
(2) The Plan must be an internally consistent, coherent statement of the strategic purpose of the particular RLF and the various considerations influencing the selection of its financing strategy, policies, and loan selection criteria encompassing:
(i) A financing strategy that demonstrates a knowledgeable analysis of the local capital market and the financing needs of the targeted businesses; and
(ii) Financing policies and portfolio standards that are consistent with EDA policies and requirements.
(3) The strategic objectives defined must be sufficiently meaningful, though not necessarily quantified, so that progress toward them can be assessed over time.
(4) The administrative procedures for operating the RLF must be consistent with generally accepted prudent lending practices for public lending institutions.
(a) RLF recipients must adopt procedures to review the impacts of prospective loan proposals on the
(b) RLF recipients are responsible for ensuring compliance with the applicable requirements of this chapter prior to providing any loan assistance under the RLF. RLF recipients are responsible for ensuring that prospective borrowers, consultants, or contractors are aware of and comply with the Federal statutory and regulatory requirements that apply to activities carried out with RLF loans. RLF recipients must develop loan agreements that include applicable Federal requirements to ensure compliance. RLF recipients must adopt procedures to diligently correct instances of non-compliance, including the calling of loans, if necessary. RLF recipient loan documents and procedures must protect and hold the Government harmless from and against all liabilities that the Government may incur as a result of providing an award to assist (directly or indirectly) in site preparation or construction as well as the renovation or repair of any facility or site. This applies to the extent that such liabilities are incurred because of ground water, surface, soil or other conditions caused by operations of the RLF recipient or any of its predecessors on the property.
(a) The economic activity and benefits of RLF loans must be located within the eligible areas identified in the grant award. The determination of eligibility of a new area will be made in accordance with § 301.2 of this chapter.
(1) Where such RLFs have a grant condition that permits new areas that subsequently become eligible to be added to the lending area, may add such areas with EDA approval. RLFs that were awarded assistance (RLF capitalization or recapitalization) before February 11, 1999, whether fully disbursed or not, and fully disbursed RLFs that were awarded assistance (RLF capitalization or recapitalization) on or after February 11, 1999.
(2) In the case of existing RLFs that are not fully disbursed that were awarded assistance (RLF capitalization or recapitalization) on or after February 11, 1999, the area proposed to be added must also be eligible to receive an EDA grant rate equal to or greater than that of the original grant.
(b) Whenever an area is added, modification to the RLF Plan incorporating the new area and outlining the RLF lending strategy is required. Once approved, area eligibility is retained indefinitely.
(a) RLF income can be used to pay for eligible and reasonable administrative costs for the project. RLF recipients are expected to add RLF income to the RLF capital base where practicable. To determine the appropriate amount of RLF income to return to the RLF capital base, RLF operators must consider the costs necessary to operate an RLF program, the availability of other monetary resources, the portfolio risk level and projected capital erosions from loan losses and inflation, the community's (or area's) commitment to the RLF, and the anticipated demand for RLF loans.
(b) RLF income that is not used for administrative costs during the selected twelve-month reporting period in which it is earned, must be added to the RLF capital base for lending purposes at the end of the twelve-month reporting period. Only RLF income earned during a current period may be used for current administrative expenses. RLF income may not be withdrawn from an RLF in a subsequent period for any uses, other than lending, without the written consent of EDA.
(c) In accounting for RLF income, any net proceeds from the sale, collection, or liquidation of a defaulted loan, up to the amount of the unpaid principal, will be treated as repayments of RLF principal and placed in the RLF for lending purposes only. Any proceeds in excess of the unpaid principal will be treated as RLF income.
(d) RLF recipients must comply with applicable OMB cost principles and with RLF Audit Guidelines (as found in OMB Circular A-133, Single Audit Act Requirements for State and Local Governments, Indian tribal governments, Institutions of Higher Education and Other Nonprofit Organizations or the Compliance Supplement, as appropriate) when charging costs against RLF income.
(e) When a RLF recipients uses RLF income to cover all or part of RLF administrative costs it must complete an RLF Income and Expense Statement required under § 308.14(c) of this chapter.
(a)
(1) Full payment of the principal, interest, fees, penalties, and other costs associated with the loan; or
(2) Final settlement or write-off of any unpaid amounts associated with the loan.
(b)
(1) Maintain adequate accounting records and source documentation to substantiate the amount and percent of RLF income expended for eligible RLF administrative costs.
(2) Retain records of administrative costs incurred for activities and equipment relating to the operation of the RLF for three years from the actual submission date of the last semi-annual or annual report which covers the period that such costs were claimed, or for five years from the date the costs were claimed, whichever is less.
(3) Make any retained records, even those retained for longer than the period described, available for inspection. The record retention periods, described in this § 308.13, are minimum periods and such prescription is not intended to limit any other record retention requirement of law or agreement. In any event, EDA will not question claimed administrative costs that are more than three years old, unless fraud is an issue.
(a)
(1) All grant funds have been disbursed for at least one year;
(2) Accurate semi-annual reports have been submitted on-time for the preceding two years;
(3) Required periodic audits have been completed and submitted to EDA for the most recent audit period within the last two years; and
(4) EDA determines that the RLF is in compliance with all applicable RLF requirements.
(b)
(c)
(2)
(a)
(2) In accordance with GAAP, a loan loss reserve may be reflected in the financial statements to show the fair value of an RLF's loan portfolio provided it is non-funded and represents non-cash entries.
(b)
(2) RLF recipients are required to certify that standard RLF loan documents necessary for lending are in place and that these documents have been reviewed by its legal counsel for adequacy and compliance with the terms and conditions of the grant and applicable state and local laws. The standard loan documents must include, at a minimum, the following:
(i) Loan application,
(ii) Loan agreement,
(iii) Promissory note,
(iv) Security agreement(s),
(v) Deed of Trust or Mortgage (as applicable),
(vi) Agreement of prior lien holder (as applicable), and
(vii) Personal Guaranty Agreement (for officers or owners of corporate borrowers, as applicable).
(c)
(d)
(i) Capital invested by the borrower or others,
(ii) Financing from private entities, or
(iii) The unguaranteed portion and 90 percent of the guaranteed portions of SBA 7(a) and SBA 504 debenture loans.
(2) Private investments do not include equity build-up in a borrower's assets or prior capital investments by a borrower unless the investment is made within nine months of the RLF loan and is recognized by the RLF recipient.
(e)
(2) An officer, employee or board member of the RLF recipient will not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment or any other thing of monetary value, for himself or for another person, from any person or organization seeking to obtain a loan or any portion of the grant funds.
(3) Former board members and/or officers are ineligible to apply for or receive an RLF loan for a period of one year from the date of termination of his/her services. Exception: A benefit or loan may be conferred if the officer, or Board member affected first discloses to the RLF recipient on the public record the proposed or potential benefit and receives the RLF recipient's written determination that the benefit involved is not so substantial as to reflect adversely upon the integrity of the RLF recipient's decision process.
(a)
(b)
(c)
(d)
(1) Evidence to EDA that they have fidelity bond coverage for persons authorized to handle funds under the grant award in an amount sufficient to protect the interests of EDA and the RLF. Note that such insurance coverage must exist at all times during the life of the RLF; and
(2) Certification in accordance with § 308.15(b)(1) of this part.
(e)
(2) The interest earned on prematurely withdrawn funds must be returned to the Government (with the exception of $100 per year which may be retained for administrative expenses by states, local governments and Indian tribes in accordance with 15 CFR Part 24, and $250 for those subject to 15 CFR Part 14 as appropriate) and should be remitted promptly, but no less frequently than quarterly. All checks submitted should state “EDA” on their face and the award number followed by the word “INTEREST” in order to identify the check in question as remittance of interest income.
(f)
(2) When an RLF project has a combination of in-kind and cash matching share, the non-federal cash together with the Federal cash constitute the funds available for making loans and will be disbursed proportionately as needed for loan closing, provided that the last 20 percent of the Federal funds may not be disbursed until all local in-kind match has been expended. The full amount of the local cash matching share will be expected to remain for use in the RLF.
(3) Upon repayment, local cash share funds are treated the same as EDA funds. Repayments of principal must be placed in the RLF for relending and interest payments must be used either for relending or for eligible RLF administrative costs. The local cash matching share must be available when needed for lending and must be under the control of the RLF recipient for the duration of the RLF for use in accordance with the terms of the grant.
(a)
(2) If a RLF recipient substantially fails to meet the prescribed time schedules for loan closings and disbursements, EDA may terminate the undisbursed balance of the award. Exceptions may be granted where:
(i) Funds are needed to close and disburse funds on loans approved prior to the deadline and will be disbursed within 45 days of the deadline,
(ii) Funds are needed to meet continuing disbursement obligations on loans closed prior to the deadline, or
(iii) EDA has approved a time schedule extension.
(b)
(i) The delay was unforeseen or generally beyond the control of the RLF recipient;
(ii) The need for the RLF still exists;
(iii) The current and planned use and the anticipated benefits of the RLF will remain consistent with the current CEDS and the RLF Plan;
(iv) The achievement of a new proposed time schedule is reasonable; and
(v) An explanation why no further delays are foreseen.
(2) EDA is under no obligation to grant a time extension, and in the event an extension is denied, EDA may deobligate (terminate) all or part of the unused portion of the grant.
(c)
(i) RLF recipients that anticipate making large loans relative to the size of the capital base, may propose RLF Plans that call for holding more than 25 percent.
(ii) EDA may require an RLF with a capital base in excess of $4 million to adopt a Plan that maintains a proportionately higher percentage of their funds loaned out.
(2) When the percentage of loaned out capital falls below the applicable standard, the dollar amount of the funds equivalent to the difference between the actual percentage of capital loaned out and the standard is referred to as “excess funds.”
(i)
(ii)
Generally, eligible loans to borrowers include loans for fixed assets, the acquisition of equipment, working capital, or other authorized uses. The EDA grant and the local cash matching funds will be used only for the purpose of making loans under an RLF. To
(a)
(1) The maximum guarantee percentage that will be offered;
(2) A certification from the RLF attorney that the guarantee agreement is valid under state law. At a minimum, the guarantee agreement must address the following:
(i) The maximum reserve requirement;
(ii) The rights and duties of each party in regard to loan collections, servicing, delinquencies and defaults;
(iii) Foreclosures;
(iv) Bankruptcies;
(v) Collateral disposition and the call provisions of the guarantee; and
(vi) Interest income and loan fees, if any, which will accrue to the RLF.
(b)
(1) Acquire an equity position in a private business;
(2) Subsidize interest payments on an existing loan;
(3) Provide the equity contribution required of borrowers under other Federal loan programs;
(4) Enable an RLF borrower to acquire an interest in a business, either through the purchase of stock or through the acquisition of assets, unless the need for RLF financing is sufficiently justified and documented in the loan write-up. Acceptable justification could include acquiring a business to substantially save it from imminent foreclosure, or acquiring it to facilitate a significant expansion or increased investment. In any case, the resulting economic benefits should be clearly consistent with the strategic objectives of the RLF;
(5) Provide loans to a borrower for the purpose of investing in interest bearing accounts, certificates of deposit, or other investments not related to the objectives of the RLF;
(6) Refinance existing debt unless:
(i) There is sound economic justification and the RLF recipient sufficiently documents in the loan write-up that the RLF is not replacing private capital solely for the purpose of reducing the risk of loss to an existing lender(s) or to lower the cost of financing to a borrower, or
(ii) An RLF uses RLF income sources and/or recycled RLF funds to purchase the rights of a prior lien holder during an in-process foreclosure action in order to preclude a significant loss on an RLF loan. This action may be undertaken only if there is a high probability of receiving compensation within 18 months from the sale of assets sufficient to cover an RLF's expenses plus a reasonable portion of the outstanding loan obligation; or
(7) Finance any activity that serves to relocate jobs from one commuting area to another. (Commuting area is that area defined by the distance people travel to work in the locality of the project receiving RLF financial assistance.) An RLF's standard loan agreement must include a provision for calling the loan if it is determined that:
(i) The business used the RLF loan to relocate jobs from another commuting area. or
(ii) The activity financed was subsequently moved to a different commuting area to the detriment of local workers.
(c)
EDA may approve variances to the requirements of subpart B of this part provided they:
(a) Are consistent with the goals of the Economic Adjustment Program and with an RLF's strategy,
(b) Are necessary and reasonable for the effective implementation of the RLF,
(c) Are economically and financially sound,
(d) Do not conflict with applicable legal requirements, and
(e) Do not change the scope of the award after the period of availability of the funds for obligation has expired.
1. The authority citation for part 314 continues to read as follows:
42 U.S.C. 3211; 19 U.S.C. 2341-2355; 42 U.S.C. 6701; 42 U.S.C. 184; Department of Commerce Organization Order 10-4.
2. Section 314.4 is amended by adding paragraph (c) to read as follows:
(c)
(i) Failure to make loans in accordance with the RLF Plan, including the time-schedule for loan closings;
(ii) Failure to obtain prior EDA approval for such changes to the RLF Plan, including provisions for administering the RLF;
(iii) Failure to submit progress, financial or audit reports as required by the terms and conditions of the grant agreement;
(iv) Failure to comply with prohibitions against conflict-of-interest for any transactions involving the use of RLF funds; or
(v) Failure to operate the RLF in accordance with the RLF Plan and the terms and conditions of the grant agreement.
(2) Whenever an RLF recipient fails in its fiduciary responsibilities or is unable or unwilling to perform as trustee of the grant, EDA may suspend, terminate or transfer the grant to an eligible successor with jurisdiction over the project area, to administer it as such trustee (replacement grantee).
(3) Whenever EDA terminates any RLF grant for cause, in whole or in part, it has the right to recover residual funds and assets of the RLF grant in accordance with the legal rights of the parties.
(4) If there is a partial termination of an RLF grant, the full amount of the original non-federal matching share is expected to be retained in the RLF for lending purposes unless otherwise provided for in the grant agreement or agreed to in writing by EDA.
3. Section 314.10 is amended by adding paragraph (c) to read as follows:
(c) In the event of the sale, collection, or liquidation of RLF loans, any proceeds, net of repaid principal and reasonable administrative costs incurred, up to the amount of the outstanding loan principal, must be returned to the RLF for relending. Any net proceeds from loan sales above the outstanding loan principal is considered RLF income and must either be added to the RLF capital base for lending or
Federal Aviation Administration (FAA), DOT.
Direct final rule; request for comments.
This amendment revises the Class D airspace at Hobbs, NM. The need to clarify the legal description of the Hobbs, NM Class D airspace in order to prevent confusion among users of the airspace has made this rule necessary. This action is intended to provide adequate controlled airspace extending upward from 700 feet or more above the surface for Instrument Flight Rules (IFR) operations in the vicinity of Hobbs, NM.
Effective 0901 UTC, April 20, 2000.
Comments must be received on or before March 3, 2000.
Send comments on the rule in triplicate to Manager, Airspace Branch, Air Traffic Division, Federal Aviation Administration, Southwest Region, Docket No. 99-AWS-32, Fort Worth, TX 76193-0520.
The official docket may be examined in the Office in the Regional Counsel, Southwest Region, Federal Aviation Administration, 2601 Meacham Boulevard, Room 663, Fort Worth, TX, between 9:00 AM and 3:00 PM, Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Airspace Branch, Air Traffic Division, Federal Aviation Administration, Southwest Region, Room 414, Fort Worth, TX.
Donald J. Day, Airspace Branch, Air Traffic Division, Southwest Region, Federal Aviation Administration, Fort Worth, TX 76193-0520, telephone 817-222-5593.
This amendment to 14 CFR part 71 revises the Class D airspace at Hobbs, NM. Upon a comparison of the description of the Hobbs, NM Class D airspace as described in Federal Aviation Administration Order 7400.9G,
Class D airspace designations are published in Paragraph 5000 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR § 71.1. The Class D airspace designation listed in this document will be published subsequently in the order.
The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption T2addresses. T1All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action is needed.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this action will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 99-AWS-32.” The postcard will be date stamped and returned to the commenter.
The regulations adopted herein 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 level of government. Therefore, it is determined that this final rule will not have federalism implications under Executive Order 13232.
Further, the FAA have determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that requires frequently and routine amendments to keep them operationally current. Therefore, I certify that this regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) If promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves
Airspace, Incorporation by reference, Navigation (air).
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854; 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9G,
That airspace extending upward from the surface to and including 6,200 feet MSL within a 4.2-mile radius of Lea County (Hobbs) Airport and within 1.3 miles each side of the Lea County ILS Localizer northeast course extending from the 4.2-mile radius to 5.3 miles northeast of the airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Issued in Fort Worth, TX on December 8, 1999.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment modifies Class E airspace at Puerto Rico, PR. This amendment will increase the size of the Puerto Rico, PR, Class E airspace area to include the airspace within Warning Areas W-370A, W-373A and W-373C, in order to facilitate the handling, reduce the coordination and increase the safety of United States military aircraft returning to Roosevelt Roads Naval Station below 5,500 feet mean sea level (MSL), which is the floor of the overlying San Juan Low Class E airspace area, in instrument meteorological conditions (IMC) from the Warning Areas.
0901 UTC, April 20, 2000.
Nancy B. Shelton, Manager, Airspace Branch, Air Traffic Division, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5586.
On November 24, 1999, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by amending Class E airspace at Puerto Rico, PR, (64 FR 226). This amendment modifies Class E airspace at Puerto Rico, PR. Designations for Class E airspace extending upward from 700 feet or more above the surface of the earth are published in FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR part 71.1. The Class E designation listed in this document will be published subsequently in the Order.
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.
This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) amends Class E airspace at Puerto Rico, PR.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) Does not warrant preparation of a Regulatory Evaluation, as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9G, Airspace Designations and Reporting Points, dated September 1, 1999, and effective September 16, 1999, is amended as follows:
That airspace extending upward from 1200 feet or more above the surface of the earth beginning at lat. 18°50′N., long. 68°00′W.; to lat. 18°45′23″N., long. 66°54′58″W.; to lat. 18°33′N., long. 64°22′W.; to lat 17°20′N., long. 64°22′W.; to lat. 17°29′N., long. 64°54′W.; to lat. 17°29′53″N., long. 64°55′39″W.; to lat. 17°29′53″N., long. 66°18′20″W.; to lat. 17°44′53″N., long. 66°16′49″W.; to lat. 17°47′16″long. 66°16′56″W.; to lat.
Federal Aviation Administration (FAA) DOT.
Final rule.
This action establishes Class E airspace extending upward from 700 feet Above Ground Level (AGL) at Brownsville Hospital Heliport, Brownsville, PA. Development of a Standard Instrument Approach Procedure (SIAP), 294 Helicopter Point in Space approach has made this action necessary. Controlled airspace extending upward from 700 Feet Above Ground Level (AGL) is needed to accommodate the SIAP at the heliport.
0901 UTC February 8, 2000.
Mr. Francis Jordan, Airspace Specialist, Airspace Branch, AEA-520, Air Traffic Division, Eastern Region, Federal Aviation Administration, Federal Building
On November 23, 1999, a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet above the surface at Brownsville Hospital Heliport, Brownsville, PA was published in the
The coordinates for the airspace docket are based on North American Datum 83. Class E airspace areas designations for airspace extending upward from 700 feet AGL are published in paragraph 6005 of FAA Order 7400.9G, dated September 10, 1999 and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.
This amendment to Part 71 of the Federal Aviation Regulations (14 CFR 71) provides controlled Class E airspace extending upward from 700 feet AGL for aircraft executing an SIAP at Brownsville Hospital Heliport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routing amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) Does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, navigation (air).
1. The aurhority citation for 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9G, Airspace Designations and Reporting Points, dated September 10, 1999, and effective September 16, 1999, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6 mile radius of Brownsville Hospital Heliport.
Issued in Jamaica, New York on January 10, 2000.
Coast Guard, DOT.
Final rule.
The Coast Guard is changing the operating regulations for all the Multnomah County drawbridges and the Union Pacific drawbridge across the Willamette River at Portland, Oregon. The draws will open on signal except from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m. Monday through Friday, except for certain holidays. This rule adds a requirement for one-hour or two-hour notices for lifts of the upper deck of the Steel Bridge at certain times each day, consistent with the notice requirements for the Burnside and Morrison Bridges immediately upstream. The hours for the one hour notice requirement are changed to accord with the new hours for the above closed periods.
This final rule is effective on February 17, 2000.
Comments and material received from the public, as well as documents as indicated in this preamble as being available in the docket, are part of docket CGD13-99-008 and are available for inspection or photocopying at the office of the Commander (oan),
John E. Mikesell, Chief,Plans and Programs Section, Aids to Navigation and Waterways Management Branch, Telephone (206) 220-7272.
On May 25, 1999, we published a notice of proposed rulemaking entitled Drawbridge Operation Regulations; Willamette River, Oregon, in the
The purpose of this rulemaking is to extend by one half-hour the daily Monday through Friday periods during which the draws need not open for the passage of vessels. By moderately changing the closed periods Monday through Friday by one hour per day, the Coast Guard intends to assist traffic flow in the city of Portland without unreasonably hindering navigation on the Willamette River. These closed periods for the drawspans will coincide better with the actual periods of peak road traffic.
The Willamette River bears commercial navigation including tour boats, tug and tows, derrick barges, as well as recreational craft. No one has objected to the proposed rule. The changes are not great enough to have a significant impact on waterway use.
The Coast Guard received one letter in response to the notice of proposed rulemaking. The Oregon Department of Transportation (ODOT), operator of the upper deck of the Steel Bridge, requested the Coast Guard to apply the advance notice for opening requirements that are in effect for the Morrison and Burnside Bridges to the upper deck of the Steel Bridge.
The notice requirement for the upper deck of the Steel Bridge was not published in the notice of proposed rulemaking. However, the notice requirement for the upper deck of the Steel Bridge would be consistent with the notice requirements for the Burnside and Morrison Bridges of Multnomah County, which are nearby, upstream of the Steel Bridge. In order to uphold consistency within 33 CFR 117.897, the notice requirement for the upper deck of the Steel Bridge is added in this final rule. This minor aspect of the final rule will not unreasonably hinder navigation. Almost all vessels that would require the upper deck of the Steel Bridge to lift would also need the draws of the Morrison and Burnside to open for their passage as well. This notice requirement is not applied to the lower deck because it is usually in the raised position except for the passage of trains.
In addition, the hours for the one hour notice are changed to coincide in a reasonable way with the new times for the closed periods. This was not mentioned in the proposed rule but will have no significant effect on navigation. The hours for one hour notice were 8 a.m. to 4:30 p.m. and are now 8 a.m. to 5 p.m.
The Steel Bridge, owned by the Union Pacific Railroad, is an unusual vertical lift structure. The bridge, including the drawspan, has two decks, one over the other. The lower deck bears rail traffic while the upper deck supports light commuter rail and automotive traffic. The upper deck is operated by ODOT. Many vessels are able to pass the Steel Bridge when only the lower deck is lifted. This is done by telescoping its steel uprights into the vertical elements of the upper truss. Lifts of the upper deck with lower deck telescoped are needed far less often than those of the lower deck. The lower deck, when down, provides only about 26 feet of vertical clearance at ordinary low water level. At the same river level, 72 feet is provided with the lower deck lifted and 161 feet with both decks fully raised.
This final rule is not a “significant regulatory action” under 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040,February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The final rule should improve commuter traffic flow by minimally increasing the times when commercial navigation cannot pass through the open draw spans.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this final rule, would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. This rule will effect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit through the portion of the Willamette over which the subject bridges pass. The changes to the regulations are minimal. The effects may be mitigated by planning passages of the Willamette according to the operating schedule of the drawbridges. Furthermore, many of the small entities would not require these bridges to open for their passage. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant impact on a substantial number of small entities.
This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132, and have determined that this final rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the federal government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.
This rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard considered the environmental impact of this rule and concluded that, under Section 2.B.2., Figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required.
Bridges.
For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 117, as follows:
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
(a) * * *
(1) The draws shall open on signal except that from 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. Monday through Friday the draws of the Broadway, Steel (upper deck only), Burnside, Morrison, and Hawthorne Bridges need not open for the passage of vessels. These closed periods are not effective on New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day. At least one hour's notice shall be given for openings of the Steel Bridge (upper deck only), Burnside Bridge and Morrison Bridge, Monday through Friday, from 8 a.m. to 5 p.m. At all other times at least two hours notice shall be given. Notice shall be given by marine radio, telephone, or other means to the drawtender at the Broadway Bridge for vessels bound upstream and to the drawtender at the Hawthorne Bridge for vessels bound downstream. During Rose Festival Week or when the water elevation reaches and remains above +12 feet, the draws will open on signal without advance notice, except during the normal closed periods identified in this paragraph (a)(1). Opening signals are as follows:
Coast Guard, DOT.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the drawbridge operation regulations for the P.J. McArdle Bridge, mile 0.3, across the Chelsea River between Chelsea and East Boston, Massachusetts. This deviation from the regulations allows the bridge owner to keep the bridge in the closed position from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., Monday through Friday; except that, if high tide occurs during the closed period, the bridge must open promptly and fully for the passage of vessels when a request to open is given. This action is necessary to facilitate vehicular and pedestrian traffic during emergency repairs to the electrical system at the bridge.
This deviation is effective January 6, 2000, through March 5, 2000.
John McDonald, Project Officer, First Coast Guard District, at (617) 223-8364.
The P.J. McArdle Bridge, mile 0.3, across the Chelsea River between Chelsea and East Boston, Massachusetts, has a vertical clearance of 21 feet at mean high water, and 30 feet at mean low water in the closed position. The existing operating regulations in 33 CFR 117.593 require the bridge to open on signal at all times.
The bridge owner, the City of Boston, requested a temporary deviation from the operating regulations to facilitate vehicular and pedestrian traffic during electrical repairs at the bridge. The submarine electrical cable for the bridge was damaged during harbor dredging operations requiring emergency repairs to be implemented in order to restore bridge operation and facilitate marine traffic.
A temporary auxiliary operating system has been installed to open the bridge; however, it operates very slowly. Bridge openings may exceed an hour and a half which will create significant traffic delays until the bridge repairs are completed. This deviation is expected to help facilitate vehicular and pedestrian traffic during the week day rush hour periods.
This deviation to the operating regulations allows the City of Boston to keep the bridge in the closed position from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., Monday through Friday; except that, if high tide occurs during the closed period, the bridge must open promptly and fully for the passage of vessels when a request to open is given.
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Office of Governmentwide Policy, GSA.
Interim rule; correction.
This document makes corrections to FTR Interim Rule 8 appearing in the
July 16, 1999.
Jim Harte, Travel and Transportation Management Policy Division, telephone (202) 501-1538.
In document 99-18291 beginning on page 38528 in the issue of Friday, July 16, 1999, make the following corrections:
1. On page 38528, in the second column, correct amendatory instruction 1. to read as follows:
5 U.S.C. 5707.”
“1a. Part 301-51 is amended by revising subpart A to read as follows:
Federal Communications Commission.
Final rule.
This document revises rules applicable to incumbent local exchange carriers (LECs) to permit competitive carriers to access portions of the incumbent LECs' networks on an unbundled basis. Unbundling allows competitors to lease portions of the incumbent LECs' network to provide telecommunications services. These rule changes are intended to remove uncertainty regarding the incumbent LECs' unbundling obligations under the Telecommunications Act of 1996 and are expected to accelerate the development of local exchange competition.
Effective February 17, 2000.
Claudia Fox, Attorney Advisor, Common Carrier Bureau, Policy and Program Planning Division, 202-418-1580.
This is a summary of the Commission's Third Report and Order, (Third) and Fourth Further Notice of Proposed Rulemaking (Fourth FNPRM) in CC Docket No. 96-98 (62 FR 45611, August 28, 1997)) FCC 99-238, adopted September 15, 1999, and released November 5, 1999. The final rules associated with the Third R&O are effective 30 days after publication in the
1. The Commission adopts a Third Report and Order (Third R&O) in CC Docket No. 96-98 specifying which portions of their networks incumbent LECs must lease to competitive carriers on an unbundled basis. Specifically, the Commission defines the standard it will use, as set forth in section 251(d)(2) of the Telecommunications Act of 1996 (1996 Act), to determine which network elements the incumbent LEC must unbundle. It then applies that standard to individual network elements to determine if incumbent LECs must provide unbundled access to them. The Third R&O and accompanying rules will benefit consumers by accelerating the development of competitive choices for local telecommunications services.
2. The rules changes were needed to respond to a U.S. Supreme Court decision (
3. As a result, the Third R&O adopts a standard that gives substance to the terms “necessary” and “impair” in section 251(d)(2), evaluates alternative elements that are available through self-provisioning by a requesting carrier or through third party suppliers, and that is rationally related to the goals of the 1996 Act. The Third R&O confirms that the “necessary” standard of section 251(d)(2)(A) is a higher standard that applies to proprietary network elements or to proprietary functions within an element, and that the “impair” standard applies to non-proprietary network elements. The Third R&O adopts a limited definition of the phrase “proprietary in nature” that tracks the intellectual property categories of patent, copyright, and trade secrets. If an incumbent LEC can demonstrate that it has invested resources (time, material, or personnel) to develop proprietary information or network elements that are protected by patent, copyright, or trade secret law, the product of such an investment is “proprietary in nature” within the meaning of section 251(d)(2)(A). The definition excludes elements that are based on widely accepted industry documents or on standards commonly used by a standards-setting body (
4. The Third R&O also finds that there are several circumstances which, if they exist with regard to information or functionalities that the incumbent LEC claims are proprietary, will permit the Commission to order unbundling of the proprietary information or functionality even if unbundled access to the element is not strictly “necessary,” as long as the “impair” standard is met. These circumstances are: (1) Where an incumbent LEC, for the primary purpose of causing a particular network to be evaluated under the stricter “necessary” standard in order to avoid its unbundling obligation, implements only a minor modification to the network element to make the element proprietary; (2) where an incumbent LEC cannot demonstrate that the information or functionality that it claims is proprietary differentiates its services from its competitors' services, or is otherwise competitively significant; or (3) where lack of access to the proprietary element would jeopardize the goal of the 1996 Act to bring rapid competition to the greatest number of consumers.
5. The Third R&O concludes that a proprietary network element is “necessary” within the meaning of section 251(d)(2)(A) if, taking into consideration the availability of alternative elements outside the incumbent's network, including self-provisioning by a requesting carrier or acquiring an alternative from a third-party supplier, lack of access to that element would, as an practical, economic, and operational matter, preclude a requesting carrier from providing the services it seeks to offer.
6. The Third R&O concludes that the failure to provide access to a network element would “impair” the ability of a requesting carrier to provide the services it seeks to offer if, taking into consideration the availability of alternative elements outside the incumbent's network, including self-provisioning by a requesting carrier or acquiring an alternative from a third-party supplier, lack of access to that element materially diminishes a requesting carrier's ability to provide the services it seeks to offer.
7. In order to determine whether an alternative element is available as a practical, economic, and operational matter, the Third R&O considers the following factors associated with a requesting carrier's ability to actually provide service using the alternative element: cost, timeliness, quality, ubiquity, and operational issues. In determining which network elements the incumbent LECs should be required to unbundle, the Third R&O also considers factors that promote the goals of the 1996 Act. Specifically, the Order considers whether unbundling a particular element would: (1) Promote rapid introduction of competition in all markets; (2) promote facilities-based competition, investment, and innovation; (3) reduce regulation; (4) create certainty in the market; and (5) allow for administrative practicality.
8. The Third R&O applies the “necessary” and “impair” standards to identify a minimum list of seven network elements that should be unbundled on a national basis, subject to discrete geographic and product market exceptions: (1) Loops; (2) subloops; (3) network interface devices; (4) circuit switching; (5) interoffice transmission facilities; (6) signaling and call-related databases; (7) operations support systems. Given the rapid changes in technology, competition, and the economic conditions of the telecommunications market, the Third R&O concludes that the Commission will periodically revisit the issue of what elements are subject to the unbundling obligations of the Act. It also concludes that the goals of the Act will better be served if network elements identified by the Commission are not removed from the unbundling obligations of the Act on a state-by-state basis, at this time.
9.
10. The Third R&O defines the loop network element to include all features, functions, and capabilities of the transmission facilities, including dark fiber and attached electronics (except those used for the provision of advanced services, such as digital subscriber line access multiplexers (DSLAMs)) owned by the incumbent LEC, between an incumbent LEC's central office and the loop demarcation point at the customer premises. Dark fiber is fiber that has not been activated through connection to the electronics that “light” it, and thereby render it capable of carrying communications services. DSLAMs split voice (low band) and data (high band) signals carried over a copper twisted pair. The Third R&O modifies the definition of loop contained in the Commission's First Report and Order in CC Docket No. 96-98 to include dark fiber and attached electronics. The Commission's previous definition did not specify whether dark fiber fell within the definition of the loop.
11. In order to secure access to the loop's full functions and capabilities, the Third R&O requires incumbent LECs to condition loops, and finds that incumbent LECs may charge for such conditioning. Loop conditioning is necessary to allow requesting carriers to offer advanced services. The terms “conditioned,” “clean copper,” “xDSL-capable” and “basic” loops all describe copper loops from which bridge taps, low-pass filters, range extenders, and similar devices have been removed. Thus, incumbent LECs cannot resist or refuse a competitive carrier's request to condition loops on the grounds that they themselves are not planning to offer xDSL to that customer. The Third R&O defers to the states to ensure that the costs incumbents impose on competitors for line conditioning are in compliance with the Commission's pricing rules for nonrecurring costs. The Third R&O also finds no basis for placing a restriction on what services a carrier may offer using the loop network element.
12. Nothing in the Third R&O disturbs the Commission's previous finding that incumbent LECs must provide cross connect facilities between an unbundled loop and a requesting carrier's collocated equipment, and that they must provide cross connect facilities according to sections 252(d)(1) and 251(c)(3) at any technically feasible point that a requesting carrier seeks access to the loop. Charges for cross connect facilities must meet the cost-based standard provided in section 252(d)(1), and the terms and conditions of providing cross connect facilities must be reasonable and nondiscriminatory under section 251(c)(3). The Third R&O declines to identify loop spectrum as a separate unbundled network element in this Order.
13.
14. The Third R&O defines subloops as portions of the loop that can be accessed at terminals in the incumbent's outside plant. An accessible terminal is a point on the loop where technicians can access the wire or fiber within the cable without removing a splice case. Points of access include a technically feasible point near the customer premises, such as the pole or pedestal, the network interface device (“NID”), or the minimum point of entry to the customer premises (MPOE). Another point of access is the feeder distribution interface (FDI), which is where the trunk line, or “feeder,” leading back to the central office, and the “distribution” plant, branching out to the subscribers, meet, and “interface.” A third point of access is the main distribution frame in the incumbent's central office.
15. The Third R&O establishes a rebuttable presumption that subloops can be unbundled at any accessible terminal in the outside loop plant. If parties are unable to reach an agreement pursuant to voluntary negotiations about the availability of space or the technical feasibility of unbundling the subloop at one of the points identified above, the incumbent will have the burden of demonstrating to the state, in the context of a section 252 arbitration proceeding, that there is no space available or that it is not technically feasible to unbundle the subloop at these points. To the extent there is not currently a single point of interconnection that can be feasibly accessed by a requesting carrier, the Third R&O encourages parties to cooperate in any reconfiguration of the network necessary to create one. If parties are unable to negotiate a reconfigured single point of interconnection at multi-unit premises, the Commission requires the incumbent to construct a single point of interconnection that will be fully accessible and suitable for use by multiple carriers. Any disputes regarding the implementation of this requirement, including the provision of compensation to the incumbent LEC under forward-looking pricing principles, shall be subject to the usual dispute resolution process under section 252.
16. The Third R&O also establishes a further rebuttable presumption that, once one state has determined that it is technically feasible to unbundle subloops at a designated point, it will be presumed that it is technically feasible for any incumbent LEC in any other state to unbundle the loop at the same point everywhere. If the conditions surrounding a request for unbundling at a similar point differ to such an extent that it is not technically feasible for the incumbent to provide unbundled access to that subloop element, the incumbent will have the burden of demonstrating in a section 252 arbitration proceeding that such an arrangement is indeed not technically feasible under those different conditions.
17.
18. The Third R&O defines the NID to include all features, functions, and capabilities of the facilities used to connect the loop distribution plant to the customer premises wiring, regardless of the particular design of the NID mechanism. Specifically, it defines the NID to include any means of interconnection of customer premises wiring to the incumbent LEC's distribution plant, such as a cross-connect device used for that purpose.
19.
20. The Third R&O defines local circuit switching as including the basic function of connecting lines and trunks. In addition to line-side and trunk-side facilities, the definition of the local circuit switching element encompasses all the features, function and capabilities of the switch. The Third R&O rejects the argument of an incumbent LEC that switch routing tables are “proprietary,” within the meaning of section 251(d)(2)(A), and requires them to be unbundled as part of the local circuit switching element.
21. To the extent the market shows that requesting carriers are not serving a market segment with self-provisioned switches, the Third R&O finds that this fact is probative evidence that requesting carriers are impaired without access to unbundled local circuit switching for a discrete market segment. Conversely, to the extent that the market shows that requesting carriers are generally providing service in particular situations with their own switches, the Third R&O finds this fact to be probative evidence that requesting carriers are not impaired without access to unbundled local circuit switching. It thus concludes that it is appropriate to create an exception to the switching unbundling obligation in certain circumstances in the top 50 MSAs, as defined by the Office of Management and Budget, because most of the switches competitors have deployed are within the confines of the top 50 MSAs. The Third R&O also finds that requesting carriers have deployed greater numbers of switches in areas of high customer density within the top 50 MSAs. It therefore concludes that it is appropriate to create an exception to the local circuit switching unbundling obligation only in density zone 1, as these density zones were defined on January 1, 1999, within the top 50 MSAs. Incumbent LECs assign their central offices to density zones based on traffic volume.
22. The conclusion that competitors are not impaired in certain circumstances without access to unbundled switching in density zone 1 in the top 50 MSAs also is predicated upon the availability of the EEL throughout density zone 1. The EEL allows requesting carriers to serve their customers by extending a customer's loop from the central office that serves the customer to a different end office in which the competitive LEC is already collocated. The EEL therefore allows requesting carriers to aggregate loops at fewer collocations and increase their efficiencies by transporting aggregated loops over efficient high-capacity facilities to their central switching location. The Third R&O also concludes that a rule that provides requesting carriers with access to unbundled local switching for requesting carriers when they serve customers with three lines or less captures a significant portion of the mass market.
23.
24. The Third R&O requires incumbent LECs to provide unbundled access to packet switching in one limited circumstance. Specifically, where a requesting carrier is unable to install its DSLAM at the remote terminal or obtain spare copper loops necessary to offer the same level of quality for advanced services as the incumbent LEC, incumbent LECs must provide requesting carriers with access to unbundled packet switching where the incumbent has placed its own DSLAM in a remote terminal. The incumbent LEC will be relieved of this unbundling obligation only if it permits a requesting carrier to collocate its DSLAM in the incumbent's remote terminal on the same terms and conditions that apply to its own DSLAM. Incumbents may not unreasonably limit the deployment of alternative technologies when requesting carriers seek to collocate their own DSLAMs in the remote terminal.
25.
26. The Third R&O finds that unbundling high-capacity dedicated transport offerings will encourage competition and facilitate the deployment of advanced services. Accordingly, it requires that incumbent LECs unbundle DS1 through OC192 dedicated transport offerings and such higher capacities as evolve over time. The intention is to ensure that the definition of interoffice transmission facilities will apply to new, as well as current technologies, and to ensure that competitors will continue to be able to
27. Incumbent LECs must also offer unbundled access to shared transport where unbundled local circuit switching is provided. Shared transport is defined as transmission facilities shared by more than one carrier, including the incumbent LEC, between end office switches, between end office switches and tandem switches, and between tandem switches in the incumbent LEC's network.
28. The Third R&O finds that requesting carriers are impaired without access to the incumbent LECs' unbundled dedicated and shared transport network. In particular, self-provisioning ubiquitous interoffice transmission facilities, or acquiring these facilities from non-incumbent LEC sources, materially increases a requesting carrier's costs of entering a market or of expanding the scope of its service, delays broad-based entry, and materially limits the scope and quality of a requesting carrier's service offerings. The Third R&O finds that requiring incumbent LECs to unbundle interoffice transmission facilities is consistent with the goal of the 1996 Act to facilitate rapid entry into the local exchange market. The Third R&O notes that the Commission will closely monitor the developments in the transport market to determine whether the transport market, or a particular segment of this market, is supplying requesting carriers with effective alternatives to the incumbent LEC's unbundled network elements when the Commission reexamines its unbundling rules in three years.
29.
30. The Third R&O requires incumbent LECs to offer unbundled access to call-related databases, including, but not limited to, the Line Information database (LIDB), Toll Free Calling database, Number Portability database, Calling Name (CNAM) database, Advanced Intelligent Network (AIN) databases, and the AIN platform and architecture. The Third R&O clarifies that the definition of call-related databases includes, but is not limited to, the CNAM database, as well as the 911 and E911 databases. It identifies specifically the CNAM, 911 and E911 databases as being illustrative of call-related databases, and not as a comprehensive list of all call-related databases.
31. Because certain services created in the AIN platform and architecture are proprietary, the Third R&O finds that if competitive LECs receive unbundled access to incumbent LECs' AIN platforms, access to AIN service software should not be unbundled because such access is not “necessary” within the meaning of section 251(d)(2)(A) of the 1996 Act. With the exception of AIN service software, the Third R&O analyzes call-related databases under the “impair” standard. It finds that lack of access to call-related databases on an unbundled basis would materially impair the ability of a requesting carrier to provide the services it seeks to offer in the local telecommunications market. It finds that there are no alternatives of comparable quality and ubiquity available to requesting carriers, as an economic, operational, and practical matter, for the incumbent LECs' call-related databases. The Third R&O notes that the analysis of call-related databases is intertwined with the analysis of signaling, because signaling is necessary to obtain access to certain call-related databases. Thus, the decision to unbundle the signaling network leads to a decision to unbundle call-related databases as well. Requiring incumbent LECs to provide access to call-related databases, including access to the AIN databases, will also foster investment and innovation in the local telecommunications marketplace.
32.
33. The Third R&O concludes that lack of access to the incumbent LEC's OSS impairs the ability of requesting carriers to provide the services they seek to offer. The incumbents' OSS provides access to key information that is unavailable outside the incumbents' networks and is critical to the ability of other carriers to provide local exchange and exchange access service.
34.
35. The Third R&O finds that where incumbent LECs provide customized routing, including compatible signaling protocol, lack of access to the incumbents' OS/DA service on an unbundled basis does not materially diminish a requesting carrier's ability to offer telecommunications service. The record provides significant evidence of a wholesale market in the provision of OS/DA services and opportunities for self-provisioning OS/DA services. Moreover, the evidence regarding the differences in cost, timeliness, quality, interoperability and ubiquity between the incumbent LEC's OS/DA service and alternative OS/DA services, provided either through self-provisioning or third-party alternatives, does not demonstrate that lack of unbundled access to the incumbent's OS/DA service would materially diminish a requesting carrier's ability to offer the services it seeks to provide. The non-discrimination requirements of section 251(b)(3) of the 1996 Act, coupled with evidence of multiple providers of OS/DA service in the marketplace, provide strong evidence that competitors are not impaired without access to the incumbent LEC's OS/DA service as an unbundled network element. The Third R&O also finds that declining to require incumbent LECs to unbundle OS/DA service is consistent with the goals of the Act, because it will reduce competitors' reliance on the incumbent LEC's network and create new opportunities for competitors of OS/DA service to differentiate their services through increased quality and lower prices.
36. In instances where the requesting carrier obtains the unbundled switching element from the incumbent, the lack of customized routing, including compatible signaling protocol, effectively precludes requesting carriers from using alternative OS/DA providers and, consequently, would materially diminish the requesting carrier's ability to provide the services it seeks to offer. Thus, the Third R&O requires incumbent LECs, to the extent they have not accommodated technologies used for customized routing, to offer OS/DA as an unbundled network element.
37.
38. A number of parties, including competitive LECs and state commissions, argue that the Commission should either identify a new network element comprised of the unbundled loop, multiplexing/concentrating equipment, and dedicated transport, (the enhanced extended link or “EEL”), or, alternatively, reinstate §§ 51.315(c) through (f) of the Commission's Rules(47 CFR 51.315(c) through (f)), which require incumbent LECs to provide unbundled loop and transport elements on a combined basis. The Third R&O declines to define the EEL as a separate network element in this Order. The Eighth Circuit Court of Appeals is currently reviewing whether §§ 51.315(c) through (f) should be reinstated, and the Commission states in the Third R&O that it therefore sees no reason to decide whether the EEL should be a separate network element in light of the Eighth Circuit's review of those rules. The Third R&O also declines to reinstate §§ 51.315(c) through (f), based on the pending Eighth Circuit litigation.
39. The Third R&O also clarifies that under existing law (47 CFR 51.309(a), 51.315(b)), a requesting carrier is entitled to obtain existing combinations of loop and transport between the end user and the incumbent LEC's serving center on a restricted basis at unbundled network element prices. In particular, any requesting carrier that is collected in a serving wire center is free to order loops and transport to that serving wire center as unbundled network elements because those elements meet the unbundling standard. Moreover, to the extent those unbundled network elements are already combined as a special access circuit, the incumbent may not separate them under rule 51.315(b), which was reinstated by the Supreme Court. In such circumstances, it would be impermissible for an incumbent LEC to require that a requesting carrier provide a certain amount of local service over such facilities.
40. Moreover, where the requesting carrier is collocated and has self-provisioned transport or obtained transport from an alternative provider, but is purchasing unbundled loops, that carrier may provide only exchange access over those facilities. Thus, for instance, a requesting carrier is entitled to purchase unbundled loops in order to provide advanced services (e.g., interstate special access xDSL service).
41. The Third R&O also clarifies that interexchange carriers are entitled to use unbundled dedicated transport from their point of presence to a serving wire center in order to provide local telephone exchange service. Such carriers are entitled to obtain such dedicated transport links pursuant to the unbundling standard.
42. The Third R&O concludes that the record is insufficient to allow the Commission to determine whether or how its rules should apply in the discrete situation involving the use of dedicated transport links between the incumbent LEC's serving wire center and an inertexchange carrier's switch or point of presence (referred to as “entrance facilities”). The Commission believes that it should explore fully the policy ramifications of applying its rules in a way that potentially could cause a significant reduction of the incumbent LEC's special access revenues prior to full implementation of access charge and universal service reform. Therefore, it sets certain discrete issues for further comment as described below in the Fourth Further Notice of Proposed Rulemaking in this docket.
43. The actions contained in this Third R&O have been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose no burden on the public.
44. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice in CC Docket 96-98 (64 FR 20238, April 26, 1999). The Commission sought written public comments on the proposals in the Notice, including comments on the IRFA. The Commission's Final Regulatory Flexibility Analysis (FRFA) in the Third R&O conforms to the RFA.
45. This R&O responds to the Supreme Court's January, 1999 decision that directs the Commission to revise the standards used to determine which network elements incumbent LECs must unbundle pursuant to section 251 of the Act. More specifically, this Third R&O gives substance to the “necessary” and “impair” standards set in section 251(d)(2) of the Act. Applying these standards, and considering the availability of the elements outside of the incumbent's network, this Third R&O adopts a list of network elements that must be unbundled on a national basis, subject to certain discrete geographic and product market exceptions. It also announces that the Commission will reexamine the national list of unbundled elements in three years. It reaffirms a state commission's authority to require incumbent LECs to unbundle additional elements, as long as the unbundling obligations: (1) are consistent with the requirements of section 251; (2) do not substantially prevent implementation of the requirements of that section and the purposes of the Act; and (3) are consistent with the national policy framework established in the Third R&O. Finally the Third R&O reaffirms that incumbent LECs are obligated to offer combinations of loop, multiplexing/concentrating equipment, and dedicated transport if they are currently combined.
46. No comments were submitted in direct response to the IRFA. The Commission did, however, receive some general small-business-related comments which are discussed throughout the Third R&O and are summarized in subsection 5 of the FRFA,
47. In the FRFA to the Commission's Local Competition First Report and Order, the Commission adopted the analysis and definitions set forth in determining the small entities affected by the Third R&O for purposes of this FRFA. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by rules (5 U.S.C. 603(b)(3)). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” (5 U.S.C. 601(6). The RFA defines a “small business” to be the same as a “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. (5 U.S.C. 601(3). Under the Small Business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA (15 U.S.C. 632)). Below, the Commission describes and estimates the number of small entities that may be affected by the rules adopted in the Third R&O.
48. The Commission has included small incumbent LECs in this RFA analysis. As noted, a “small business” under the RFA is one that,
49. The United States Bureau of the Census (the Census Bureau) reports that at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. (United States Department of Commerce, Bureau of the Census, 1992 Census of Transportation, Communications and Utilities: Establishment and Firm Size, at Firm Size 1-123 (1995) (1992 Census)). These firms include a variety of different categories of carriers, including LECs, interexchange carriers, competitive access providers, wireless providers, operator service providers, pay telephone operators, wireless providers, and resellers. At least some of these 3,497 telephone service firms may not qualify as small entities because they are not “independently owned and operated.” (15 U.S.C. 632(a)(1)). For example, a wireless provider that is affiliated with a LEC having more than 1,500 employees would not meet the definition of a small business. It seems reasonable to conclude, therefore, that fewer than 3,497 of these telephone service firms are small entities that may be affected by the Third R&O. Since 1992, however, many new carriers have entered the telephone services marketplace. At least some of these new entrants may be small entities that are affected by the Third R&O.
50. The SBA has developed a definition of small entities for telephone communications companies other than radiotelephone (wireless) companies. The Census Bureau reports that there were 2,321 such telephone companies that had been operating for at least one year at the end of 1992. (1992 Census at Firm Size 1-123). According to the SBA's definition, a wireline telephone company is a small business if it employs no more than 1,500 persons. (13 CFR 121.201, Standard Industrial Classification Code 4812). All but 26 of the 2,321 wireline companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 wireline companies that might qualify as small entities. Although it seems certain that some of these carriers are not independently owned and operated, the Commission is unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, it estimates that fewer than 2,295 of these wireline companies are small entities that the Third R&O may affect. Since 1992, however, many wireline carriers have entered the telephone services marketplace. Many of these new entrants may be small entities that are affected by the Third R&O.
51.
52. Pursuant to sections 251(c) and (d) of the 1996 Act, incumbent LECs, including those that qualify as small entities, are required to provide nondiscriminatory access to unbundled network elements. The only exception to this rule is those carriers that qualify and have gone through the process of obtaining an exemption, suspension or modification pursuant to section 251(f) of the Act. The Third R&O interprets the “necessary” and “impair” standards of section 251(d)(2) in such a way that it fulfills the Supreme Court's requirement that the Commission apply some limiting standard to an incumbent LEC's 251(c) obligations. In the Third R&O, the Commission identifies a minimum set of network elements that incumbent LECs are obligated to offer to requesting carriers on an unbundled basis nationwide: (1) local loops, including dark fiber and high-capacity loops; (2) subloops; (3) network interface devices; (4) local switching, except under certain conditions; (5) interoffice transport; (6) signaling and call-related databases; (7) operations support systems; and (8) in very limited situations, packet switching. State commissions may require incumbent LECs to provide additional network elements on an unbundled basis. The Third R&O also clarifies that incumbent LECs are obligated to provide access to combinations of loop, multiplexing/concentrating equipment and dedicated transport if they are currently combined. Compliance with the rules and decisions adopted in this Third R&O may require the use of engineering, technical, operational, accounting, billing, and legal skills.
53. As the Commission concluded in the original FRFA, and as discussed more thoroughly, the Commission believes that its actions establishing a minimum national list of unbundled network elements in this Third R&O facilitates the development of competition in the local exchange and exchange access markets. This decision decreases entry barriers and provides reasonable opportunities for all carriers, including small entities, to provide local exchange and exchange access services.
54. National requirements for unbundling allows requesting carriers, including small entities, to take advantage of economies of scale in the network. Requesting carriers, which may include small entities, should have access to the same technologies and economies of scale and scope available to incumbent LECs. Having such access will facilitate competition and help lower prices for all consumers, including individuals and small entities. A minimum national list of unbundled network elements also should facilitate the development of consistent standards and help resolve issues without imposing additional litigation costs on parties, including small entities.
55. Establishing a minimum national list of unbundled network elements facilitates negotiations and reduces regulatory burdens for all parties, including small entities. Adopting a national list lowers requesting carrier's cost by enabling them to implement regional and/or national business plans. In reaching this conclusion, the Commission considered one proposal to adopt national standards that would be applied by state commissions on a market-by-market basis. The Commission concluded that this approach would lead to greater uncertainty in the market and would hinder the development of competition. It also found that it would complicate the negotiation of interconnection agreements and lead to increased litigation. Furthermore, this approach would increase the administrative burden on state commissions and parties arbitrating interconnection agreements before these state commissions. All of these factors would slow the development of competition. Therefore, the Commission adopted a national list.
56. The Commission will send a copy of the Third R&O, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. (5 U.S.C. 801(a)(1)(A)). In addition, the Commission will send a copy of the Third R&O, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. The Third R&O and FRFA, or summaries thereof, are also published in the
57. As required by the RFA, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Fourth Further Notice of Proposed Rulemaking. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Fourth Further Notice of Proposed Rulemaking provided above in section VII. The Commission will send a copy of the Fourth Further Notice of Proposed Rulemaking, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. (5 U.S.C. 603(a)). In addition, the Fourth Further Notice of Proposed Rulemaking and IRFA, or summaries thereof, are now also published in the
58. In this proceeding commenters have argued that allowing requesting carriers to obtain combinations of loop and transport unbundled network elements based on forward-looking cost would provide opportunities for arbitrage of special access services. The Commission recognizes that special access has historically been provided by incumbent LECs at prices that are higher than the unbundled network element pricing scheme of section 252(d)(1). Accordingly, in this Fourth Further Notice, the Commission seeks comment on the legal and policy bases for precluding requesting carriers from substituting dedicated transport for special access entrance facilities. The Commission asks whether there is any basis in the statute or our rules under which incumbent LECs could decline to provide entrance facilities at unbundled network element prices.
59. The Commission also invites parties to refresh the record on whether requesting carriers may use unbundled dedicated or shared transport facilities in conjunction with unbundled switching to originate or terminate interstate toll traffic to customers to whom the requesting carrier does not provide local exchange service.
60. Sections 1 through 4, 10, 201, 202, 251 through 254, 271, and 303(r) of the Communications Act, as amended, 47
61. In the FRFA in the Third R&O, the Commission has described the entities possibly affected by that decision. The Commission anticipates that the same entities, as well as those described below, could be affected by any action taken in response to the Fourth Further Notice. The Commission therefore incorporates the description and estimates used in the FRFA in the Third R&O and adds the following descriptions.
62.
63.
64. If the Commission does not establish any restrictions on the use of unbundled network elements or combinations of network elements, no additional compliance requirements are anticipated from further consideration of this issue. If, however, restrictions on access to network elements are imposed, and depending on how the restrictions are imposed, competitive LECs, CAPs and other purchasers of unbundled network elements, including small entities, may be subject to additional reporting, recordkeeping and other compliance requirements. Incumbent LECs, including small incumbent LECs, would also be impacted because they would have to keep track of competitive LEC filings and whether the use of the unbundled network element changed in such a way that a restriction would attach. If restrictions are placed on the use of unbundled network elements or combinations of such elements, compliance with these requests may require the use of engineering, technical, operational, accounting, billing, and legal skills.
65. If requesting carriers can substitute unbundled network elements, such as transport, for entrance facilities, incumbent LECs, including small entities, may be significantly economically impacted. On the other hand, substituting unbundled network elements for entrance facilities could benefit competitive LECs, CAPs, and other purchasers of unbundled network elements. The Commission will evaluate in this proceeding whether there are legal grounds for restricting such access. If no such grounds exist, and instead if the statute requires unrestricted access to these unbundled network elements or combinations, then the Commission will have no alternative other than implementation of the statutory requirements for unrestricted access.
66. Ordering Clauses
Effective February 17, 2000, except as specified in the regulations.
67. The Commission will send a copy of this
The Commission will send a copy of this
Communications, Common Carriers, Telecommunications.
1. The authority citation for part 51 continues to read:
Sections 1-5, 7, 201-05, 207-09, 218, 225-27, 251-54, 271, 332, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 151 through 55, 157, 201 through 205, 207 through 209, 218, 225 through 227, 251 through 254, 271, and 332, unless otherwise noted.
2. Section 51.5 is amended by revising the following definition to read as follows:
3. Section 51.317 is revised to read as follows:
(a)
(1) Determine whether access to the proprietary network element is “necessary.” A network element is “necessary” if, taking into consideration the availability of alternative elements outside the incumbent LEC's network, including self-provisioning by a requesting carrier or acquiring an alternative from a third-party supplier, lack of access to the network element precludes a requesting telecommunications carrier from providing the services that it seeks to offer. If access is “necessary,” then, subject to any consideration of the factors set forth under paragraph (c) of this section, the Commission may require the unbundling of such proprietary network element.
(2) In the event that such access is not “necessary,” the Commission may require unbundling subject to any consideration of the factors set forth under paragraph (c) of this section if it is determined that:
(i) The incumbent LEC has implemented only a minor modification to the network element in order to qualify for proprietary treatment;
(ii) The information or functionality that is proprietary in nature does not differentiate the incumbent LEC's services from the requesting carrier's services; or
(iii) Lack of access to such element would jeopardize the goals of the 1996 Act.
(b)
(1) Determine whether lack of access to a non-proprietary network element “impairs” a carrier's ability to provide the service it seeks to offer. A requesting carrier's ability to provide service is “impaired” if, taking into consideration the availability of alternative elements outside the incumbent LEC's network, including self-provisioning by a requesting carrier or acquiring an alternative from a third-party supplier, lack of access to that element materially diminishes a requesting carrier's ability to provide the services it seeks to offer. The Commission will consider the totality of the circumstances to determine whether an alternative to the incumbent LEC's network element is available in such a manner that a requesting carrier can provide service using the alternative. If the Commission determines that lack of access to an element “impairs” a requesting carrier's ability to provide service, it may require the unbundling of that element, subject to any consideration of the factors set forth under section 51.317(c).
(2) In considering whether lack of access to a network element materially diminishes a requesting carrier's ability to provide service, the Commission shall consider the extent to which alternatives in the market are available as a practical, economic, and operational matter. The Commission will rely upon the following factors to determine whether alternative network elements are available as a practical, economic, and operational matter:
(i) Cost, including all costs that requesting carriers may incur when using the alternative element to provide the services it seeks to offer;
(ii) Timeliness, including the time associated with entering a market as well as the time to expand service to more customers;
(iii) Quality;
(iv) Ubiquity, including whether the alternatives are available ubiquitously;
(v) Impact on network operations.
(3) In determining whether to require the unbundling of any network element under this rule, the Commission may also consider the following additional factors:
(i) Whether unbundling of a network element promotes the rapid introduction of competition;
(ii) Whether unbundling of a network element promotes facilities-based competition, investment, and innovation;
(iii) Whether unbundling of a network element promotes reduced regulation;
(iv) Whether unbundling of a network element provides certainty to requesting carriers regarding the availability of the element;
(v) Whether unbundling of a network element is administratively practical to apply.
(4) If an incumbent LEC is required to provide nondiscriminatory access to a network element in accordance with § 51.311 and section 251(c)(3) of the Act under § 51.319 of this section or any applicable Commission Order, no state commission shall have authority to determine that such access is not required. A state commission must comply with the standards set forth in this § 51.317 when considering whether to require the unbundling of additional network elements. With respect to any network element which a state commission has required to be unbundled under this § 51.317, the state commission retains the authority to subsequently determine, in accordance with the requirements of this rule, that such network element need no longer be unbundled.
4. Section 51.319 is revised to read as follows:
(a)
(1)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(3)
(i) Line conditioning is defined as the removal from the loop of any devices that may diminish the capability of the loop to deliver high-speed switched wireline telecommunications capability, including xDSL service. Such devices include, but are not limited to, bridge taps, low pass filters, and range extenders.
(ii) Incumbent LECs shall recover the cost of line conditioning from the requesting telecommunications carrier in accordance with the Commission's forward-looking pricing principles promulgated pursuant to section 252(d)(1) of the Act.
(iii) Incumbent LECs shall recover the cost of line conditioning from the requesting telecommunications carrier in compliance with rules governing nonrecurring costs in § 51.507 (e).
(iv) In so far as it is technically feasible, the incumbent LEC shall test and report trouble for all the features, functions, and capabilities of conditioned lines, and may not restrict testing to voice-transmission only.
(b)
(c)
(1)
(i) Line-side facilities, which include, but are not limited to, the connection between a loop termination at a main distribution frame and a switch line card;
(ii) Trunk-side facilities, which include, but are not limited to, the connection between trunk termination at a trunk-side cross-connect panel and a switch trunk card; and
(iii) All features, functions and capabilities of the switch, which include, but are not limited to:
(A) The basic switching function of connecting lines to lines, lines to trunks, trunks to lines, and trunks to trunks, as well as the same basic capabilities made available to the incumbent LEC's customers, such as a telephone number, white page listing and dial tone, and
(B) All other features that the switch is capable of providing, including but not limited to, customer calling, customer local area signaling service features, and Centrex, as well as any technically feasible customized routing functions provided by the switch.
(2) Notwithstanding the incumbent LEC's general duty to unbundle local circuit switching, an incumbent LEC shall not be required to unbundle local circuit switching for requesting telecommunications carriers when the requesting telecommunications carrier serves end-users with four or more voice grade (DS0) equivalents or lines, provided that the incumbent LEC provides nondiscriminatory access to combinations of unbundled loops and transport (also known as the “Enhanced Extended Link”) throughout Density Zone 1, and the incumbent LEC's local circuit switches are located in:
(i) The top 50 Metropolitan Statistical Areas as set forth in Appendix B of the Third Report and Order and Fourth Further Notice of Proposed Rulemaking in CC Docket No. 96-98, and
(ii) In Density Zone 1, as defined in § 69.123 of this chapter on January 1, 1999.
(3)
(i) Trunk-connect facilities, which include, but are not limited to, the connection between trunk termination at a cross connect panel and switch trunk card;
(ii) The basic switch trunk function of connecting trunks to trunks; and
(iii) The functions that are centralized in tandem switches (as distinguished from separate end office switches), including but not limited, to call recording, the routing of calls to operator services, and signaling conversion features.
(4)
(ii) The ability to terminate copper customer loops (which includes both a low band voice channel and a high-band data channel, or solely a data channel);
(iii) The ability to forward the voice channels, if present, to a circuit switch or multiple circuit switches;
(iv) The ability to extract data units from the data channels on the loops, and
(v) The ability to combine data units from multiple loops onto one or more trunks connecting to a packet switch or packet switches.
(5) An incumbent LEC shall be required to provide nondiscriminatory access to unbundled packet switching capability only where each of the following conditions are satisfied. The requirements in this section relating to packet switching are not effective until May 17, 2000.
(i) The incumbent LEC has deployed digital loop carrier systems, including but not limited to, integrated digital loop carrier or universal digital loop carrier systems; or has deployed any other system in which fiber optic facilities replace copper facilities in the distribution section (
(ii) There are no spare copper loops capable of supporting xDSL services the requesting carrier seeks to offer;
(iii) The incumbent LEC has not permitted a requesting carrier to deploy a Digital Subscriber Line Access mulltiplexer in the remote terminal, pedestal or environmentally controlled vault or other interconnection point, nor has the requesting carrier obtained a virtual collocation arrangement at these subloop interconnection points as defined by paragraph (b) of this section; and
(iv) The incumbent LEC has deployed packet switching capability for its own use.
(d)
(1) Interoffice transmission facility network elements include:
(i) Dedicated transport, defined as incumbent LEC transmission facilities, including all technically feasible capacity-related services including, but not limited to, DS1, DS3 and OCn levels, dedicated to a particular customer or carrier, that provide telecommunications between wire centers owned by incumbent LECs or requesting telecommunications carriers, or between switches owned by incumbent LECs or requesting telecommunications carriers;
(ii) Dark fiber transport, defined as incumbent LEC optical transmission facilities without attached multiplexing, aggregation or other electronics;
(iii) Shared transport, defined as transmission facilities shared by more than one carrier, including the incumbent LEC, between end office switches, between end office switches and tandem switches, and between tandem switches, in the incumbent LEC network.
(2) The incumbent LEC shall:
(i) Provide a requesting telecommunications carrier exclusive use of interoffice transmission facilities dedicated to a particular customer or carrier, or use the features, functions, and capabilities of interoffice transmission facilities shared by more than one customer or carrier.
(ii) Provide all technically feasible transmission facilities, features, functions, and capabilities that the requesting telecommunications carrier could use to provide telecommunications services;
(iii) Permit, to the extent technically feasible, a requesting telecommunications carrier to connect such interoffice facilities to equipment designated by the requesting telecommunications carrier, including but not limited to, the requesting telecommunications carrier's collocated facilities; and
(iv) Permit, to the extent technically feasible, a requesting telecommunications carrier to obtain the functionality provided by the incumbent LEC's digital cross-connect systems in the same manner that the incumbent LEC provides such functionality to interexchange carriers.
(e)
(1)
(i) When a requesting telecommunications carrier purchases unbundled switching capability from an incumbent LEC, the incumbent LEC shall provide access from that switch in the same manner in which it obtains such access itself.
(ii) An incumbent LEC shall provide a requesting telecommunications carrier with its own switching facilities access to the incumbent LEC's signaling network for each of the requesting telecommunications carrier's switches. This connection shall be made in the same manner as an incumbent LEC connects one of its own switches to a signaling transfer point.
(2)
(i) For purposes of switch query and database response through a signaling network, an incumbent LEC shall provide access to its call-related databases, including but not limited to, the Calling Name Database, 911 Database, E911 Database, Line Information Database, Toll Free Calling Database, Advanced Intelligent Network Databases, and downstream number portability databases by means of physical access at the signaling transfer point linked to the unbundled databases. The requirements in this section relating to the Calling Name Database, 911 Database, and E911 Database are not effective until May 17, 2000.
(ii) Notwithstanding the incumbent LEC's general duty to unbundle call-related databases, an incumbent LEC shall not be required to unbundle the services created in the AIN platform and architecture that qualify for proprietary treatment.
(iii) An incumbent LEC shall allow a requesting telecommunications carrier that has purchased an incumbent LEC's local switching capability to use the incumbent LEC's service control point element in the same manner, and via the same signaling links, as the incumbent LEC itself.
(iv) An incumbent LEC shall allow a requesting telecommunications carrier that has deployed its own switch, and has linked that switch to an incumbent LEC's signaling system, to gain access to the incumbent LEC's service control point in a manner that allows the requesting carrier to provide any call-related database-supported services to customers served by the requesting telecommunications carrier's switch.
(v) An incumbent LEC shall provide a requesting telecommunications carrier with access to call-related databases in a manner that complies with section 222 of the Act.
(3)
(i) A service management system is defined as a computer database or system not part of the public switched network that, among other things:
(A) Interconnects to the service control point and sends to that service control point the information and call processing instructions needed for a network switch to process and complete a telephone call; and
(B) Provides telecommunications carriers with the capability of entering and storing data regarding the processing and completing of a telephone call.
(ii) An incumbent LEC shall provide a requesting telecommunications carrier with the information necessary to enter correctly, or format for entry, the information relevant for input into the incumbent LEC's service management system.
(iii) An incumbent LEC shall provide a requesting telecommunications carrier the same access to design, create, test, and deploy Advanced Intelligent Network-based services at the service management system, through a service creation environment, that the incumbent LEC provides to itself.
(iv) An incumbent LEC shall provide a requesting telecommunications carrier access to service management systems in a manner that complies with section 222 of the Act.
(f)
(g)
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, Model MD-88 airplanes, and Model MD-90-30 series airplanes. This proposal would require installation of a pipe support and clamps on the hydraulic lines in the aft fuselage; replacement of the hydraulic pipe assembly in the aft fuselage with a new pipe assembly; and installation of drain tube assemblies and diverter assemblies in the area of the auxiliary power unit (APU) inlet; as applicable. This proposal is prompted by reports of smoke and odor in the passenger cabin and cockpit due to hydraulic fluid leaking into the APU inlet, and subsequently, into the air conditioning system. The actions specified by the proposed AD are intended to prevent such hydraulic fluid leakage due to fatigue vibration and cracking in the flared radius of a hydraulic pipe in the aft fuselage, which could result in smoke and odors in the passenger cabin or cockpit.
Comments must be received by March 3, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-227-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
The service information referenced in the proposed rule may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Technical Publications Business Administration, Dept. C1-L51 (2-60). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Transport Airplane Directorate, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Albert Lam, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Transport Airplane Directorate, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5346; fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-227-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-227-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received several reports of smoke and odor in the passenger cabin on McDonnell Douglas Model DC-9-82 (MD-82) series airplanes due to failure of a hydraulic pipe in the aft fuselage accessory compartment. Investigation revealed that hydraulic fluids leaked into the bilge area of the tailcone and out of the existing drains and were ingested into the air intake area of the auxiliary power unit (APU), and subsequently, into the air conditioning system. Further investigation revealed that the leaking fluid was due to fatigue vibration and cracking in the flared radius of a hydraulic pipe in the aft fuselage. This condition, if not corrected, could result in smoke and odors in the passenger cabin or cockpit.
The subject hydraulic pipe assembly on McDonnell Douglas Model DC-9-81 (MD-81), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, Model MD-88 airplanes, and Model DC-90-30 series airplanes is similar to those on the affected Model DC-9-82 (MD-82) airplanes. Therefore, all of these airplanes may be subject to the same unsafe condition.
The FAA has reviewed and approved McDonnell Douglas Service Bulletin MD80-29-056, dated June 18, 1996 [for Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes], which describes procedures for installation of a pipe support and clamps on the hydraulic lines in the aft fuselage.
The FAA also has reviewed and approved McDonnell Douglas Service
In addition, the FAA has reviewed and approved McDonnell Douglas Service Bulletins MD80-53-286, dated September 3, 1999 [for Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, and Model MD-88 airplanes], and MD90-53-018, dated September 3, 1999 (for Model MD-90-30 series airplanes), which describe procedures for installation of drain tube assemblies and diverter assemblies in the area of the APU inlet.
Accomplishment of the actions specified in the service bulletins listed above is intended to adequately address the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously.
Operators should note that, although McDonnell Douglas Service Bulletins MD80-29-056, dated June 18, 1996; MD80-53-286, dated September 3, 1999; and MD90-53-018, dated September 3, 1999; recommend accomplishing the modifications at the earliest practical maintenance period (after the release of the service bulletin), the FAA has determined that such an interval would not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this proposed AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the modifications. In light of all of these factors, the FAA finds that an 18-month compliance time for initiating the proposed actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.
There are approximately 1,126 airplanes of the affected design in the worldwide fleet. The FAA estimates that 634 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 2 work hours per airplane [for 512 Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes] to accomplish the proposed installation of the pipe support and clamps, at an average labor rate of $60 per work hour. Required parts would cost approximately $226 per airplane. Based on these figures, the cost impact of this installation proposed by AD on U.S. operators is estimated to be $177,152, or $346 per airplane.
It would take approximately 2 work hours per airplane [for 634 Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, and Model MD-88 airplanes] to accomplish the proposed replacement, at an average labor rate of $60 per work hour. Required parts would cost approximately $520 per airplane. Based on these figures, the cost impact of this replacement proposed by this AD on U.S. operators is estimated to be $405,760, or $640 per airplane.
It would take approximately 14 work hours per airplane (for 22 Model MD-90-30 series airplanes) to accomplish the proposed installation of drain tube assemblies and diverter assemblies, at an average labor rate of $60 per work hour. Required parts would cost approximately $4,503 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $117,546, or $5,343 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.
The regulations proposed herein would 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 12612, it is determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent hydraulic fluid leakage into the auxiliary power unit (APU) inlet due to fatigue vibration and cracking in the flared radius of a hydraulic pipe in the aft fuselage, which could result in smoke and odors in the passenger cabin or cockpit; accomplish the following:
(a) For Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, as listed in McDonnell Douglas Service Bulletin
MD80-29-056, dated June 18, 1996: Within 18 months after the effective date of this AD, install a pipe support and clamps on the hydraulic lines in the aft fuselage in accordance with the service bulletin.
(b) For Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, and Model MD-88 airplanes, as listed McDonnell Douglas Service Bulletin MD80-29-062, Revision 01, dated August 3, 1999: Within 18 months after the effective date of this AD, replace the hydraulic pipe assembly in the aft fuselage with a new pipe assembly having a greater wall thickness, in accordance with the service bulletin. Except for Model MD-88 airplanes that have been modified in accordance with McDonnell Douglas MD-80 Service Bulletin 29-54, dated February 2, 1993, or Revision 2, dated December 17, 1993, the requirements of this paragraph must be accomplished concurrently with the requirements of paragraph (a) of this AD
(c) For Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes, as listed in McDonnell Douglas Service Bulletin MD80-53-286, dated September 3, 1999; and Model MD-9-30 series airplanes, as listed in McDonnell Douglas Service Bulletin MD90-53-018, dated September 3, 1999: Within 18 months after the effective date of this AD, install drain tube assemblies and diverter assemblies in the area of the APU inlet, in accordance with the applicable service bulletin.
(d) As of the effective date of this AD, no person shall install a hydraulic pipe assembly, part number 7936907-603, on any airplane.
(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate.
Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(f) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Minerals Management Service, Interior.
Notice of Public Workshop.
The Minerals Management Service (MMS) is giving notice of a public workshop concerning the supplementary proposed Indian oil value rule published in the
The public workshop will be held in Lakewood, Colorado, on February 8, 2000, beginning at 9 a.m. and ending at 3 p.m., Mountain time.
The workshop will be held at the Minerals Management Service, Royalty Management Program, Denver Federal Center, Auditorium, Building 85, Kipling Street (between 6th Avenue and Alameda Pkwy), Lakewood, CO 80215, telephone number (303) 231-3585.
Mr. Peter Christnacht, Royalty Valuation Division, Royalty Management Program, Minerals Management Service, P.O. Box 25165, MS 3151, Denver, Colorado, 80225-0165, telephone number (303) 275-7252; or, Mr. David S. Guzy, Chief, Rules and Publications Staff, Royalty Management Program, Minerals Management Service, P.O. Box 25165, MS 3021, Denver, Colorado 80225-0165, telephone number (303) 231-3432, fax number (303) 231-3385, e-mail David.Guzy@mms.gov.
The workshop will be open to the public in order to discuss the supplementary proposed rule and gather comments. We encourage members of the public to attend this meeting. Those wishing to make formal presentations should sign up upon arrival. The sign-up sheet will determine the order of speakers. For building security measures, each person will be required to sign in and may be required to present a picture identification to gain entry to the meeting.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to disapprove Rule 1623 of the South Coast Air Quality Management District (SCAQMD) which has been submitted as a revision to the State Implementation Plan (SIP). Rule 1623—Credits for Lawn and Garden Equipment provides a mechanism for issuing mobile source emission reduction credits (MSERCs) to entities who voluntarily either sell or replace old engine-powered lawn and garden
Comments must be received on or before February 2, 2000.
Comments may be mailed to: Air Planning Office, (AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the rule revisions and EPA's evaluation report of the rule are available for public inspection at EPA's Region 9 office during normal business hours. Copies of the submitted rule revisions are also available for inspection at the following locations:
Roxanne Johnson, Air Planning Office (AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 744-1225.
The rule being proposed for disapproval and exclusion from the California SIP is: South Coast Air Quality Management District (SCAQMD) Rule 1623—Credits for Clean Lawn and Garden Equipment. This rule was submitted by the California Air Resources Board to EPA on August 28, 1996.
The Act broadly encourages, and under certain circumstances Title I of the Act mandates, States to develop and facilitate market-based approaches for achieving the environmental goals of the Act for attainment and maintenance of the National Ambient Air Quality Standards (NAAQS), and to meet associated emission reduction milestones. EPA has developed comprehensive guidance and rules (as required by the Act) for States and individual sources to follow in designing and adopting such programs for inclusion in SIPs. The Economic Incentive Program (EIP) Rules (40 CFR part 51, subpart U) provide a broad framework for the development and use of a wide variety of incentive strategies for stationary, area, and/or mobile sources. One such approach is the generation and trading of emission reduction credits (ERCs), which historically have been allowed under guidance provided in the 1986 Emission Trading Policy Statement (see 51 FR 43631, December 4, 1986). In certain areas where emission control costs for stationary sources may be high relative to mobile source control costs, creating EIPs which allow for the trading of emission reduction credits from mobile sources to stationary sources can be beneficial.
This document addresses EPA's proposed action for SCAQMD Rule 1623—Credits for Clean Lawn and Garden Equipment. SCAQMD adopted Rule 1623 on May 10, 1996.
Rule 1623 provides a mechanism by which stationary source emission and ridesharing requirements (Rule 2202 companies) can be met through the use of volatile organic compound (VOC), oxides of nitrogen (NO
Rule 1623 is a voluntary program, and the exact emission reductions are unknown. EPA can only approve Rule 1623 in the SIP, if the reductions are surplus and are quantifiable. Rule 1623 lacks documentation supporting that the implementation of Rule 1623 will result in an accelerated rate of equipment retirement beyond that which would occur from normal retirement and turnover. This is necessary to show that the claimed reductions are in fact surplus.
EPA sent a letter (dated November 5, 1999) to the SCAQMD Executive Officer relaying some of the significant deficiencies in their submitted Rule. Our letter to SCAQMD also restated that SCAQMD may wish to withdraw Rule 1623 from EPA's consideration for inclusion in the SIP under section 110 of the Act while we jointly develop solutions to the issues EPA had identified. The following is EPA's evaluation and proposed action for this rule.
In determining the approvability of a rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). The EPA interpretation of these requirements have formed the basis for today's action.
For the purpose of assisting State and local agencies in developing economic incentive programs, EPA prepared guidance applicable to these programs in Subpart U—Economic Incentive Programs, found at 40 CFR 51.490 to 51.494 (EIP). In general, these guidance documents have been set forth to ensure that rules are fully enforceable and strengthen or maintain the SIP. The EIP is based on the underlying requirements of the Act and specifies requirements for these types of programs. EPA released a Draft EIP Guidance document in September 1999 for public comment. The 1994 EIP rule still remains in effect for mandatory
There is currently no version of SCAQMD Rule 1623—Credits for Clean Lawn and Garden Equipment in the SIP. The submitted Rule includes the following provisions:
• Purpose.
• Applicability.
• Definitions.
• Requirements.
• Issuance of MSERCs.
• Rendering Engines Inoperable.
• MSERC Calculation.
• Use of MSERCs.
• Recordkeeping Requirements.
• Compliance Auditing and Enforcement.
• Requirements for Public Notice.
• Appeal of Disapproval of MSERC Issuance.
• Relationship to Intercredit Trading.
EPA has evaluated the submitted rule and has determined that it is not consistent with the CAA, EPA regulations, and EPA policy. EPA believes Rule 1623 allows much Executive Officer discretion (e.g., Executive Officer may revise the credit
EPA's concerns with Rule 1623 which lead to our proposed disapproval are:
• The lack of real, quantifiable, enforceable, and surplus emission reductions generated under the program (see 40 CFR 51.493 and section I.C. of the preamble to the EIP—59 FR 16690-16717, April 7, 1994) being used as substitutes for more credible means of control at stationary sources,
• The lack of a mechanism to review Rule 1623's program effectiveness (see 40 CFR 51.493(f)),
EPA believes that some of these concerns individually are adequate to propose disapproval of Rule 1623; taken together, they compel EPA's action. For a detailed discussion of our concerns, please see the TSD, October, 1999.
This revision is not required by the Act. Therefore, this proposed disapproval action does not impose sanctions for failure to meet Act requirements.
The EPA is soliciting public comment on the proposed action discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional Office listed in the
As Rule 1623 is a substitute for existing requirements, EPA does not believe that our disapproval of the program will have any effect on air quality in the South Coast Air Basin. Regulated entities which may have been using Rule 1623 to comply with control technology requirements have the opportunity to apply control or otherwise comply directly (in the case of ridesharing requirements) in lieu of purchasing credits generated under Rule 1623.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.
Under Executive Order 12875, Enhancing the Intergovernmental Partnership, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” Today's rule does not create a mandate on State, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.
Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is does not involve decisions intended to mitigate environmental health or safety risks.
Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such
Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Environmental protection, Air pollution control, Intergovernmental relations, Oxides of nitrogen, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401-7671q.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA proposes to approve revisions to the Texas State Implementation Plan (SIP). The revisions concern the permitting of new major sources and major modifications in areas which do not meet the national ambient air quality standards (NAAQS) promulgated by EPA (nonattainment areas). The EPA proposes to approve these revisions to satisfy the provisions of the Clean Air Act (Act) which relate to the permitting of new and modified sources which are located in nonattainment areas.
Comments must be received on or before February 17, 2000.
Written comments should be addressed to Ms. Jole C. Luehrs, Chief, Air Permits Section, at the EPA Region 6 Office listed below. Copies of documents relevant to this action are available for public inspection during normal business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.
Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
Stanley M. Spruiell of EPA Region 6 Air Permits Section at (214) 665-7212 at the address above, or at spruiell.stanley@epa.gov.
Throughout this document, wherever we, us, or our are used, we mean EPA.
We propose to approve the recodification of and revisions to the Texas SIP relating to revisions to Title 30, Texas Administrative Code (TAC) Chapter 116, “Control of Air Pollution by Permits for New Construction or Modification,” as indicated in Table 1 below:
This proposal includes portions of revisions submitted by the Governor of Texas to EPA on the following dates:
• August 31, 1993
• November 1, 1995
• July 18, 1996
• April 13, 1998
• March 16, 1999
We are taking this rulemaking action under sections 110, 301 and part D of the Act. As explained in the following section, we are acting only on those parts of these submittals which relate to permitting sources in nonattainment areas.
We propose to approve regulations submitted by Texas that satisfy provisions of the Act that pertain to permitting major sources and major modifications in areas in Texas that do not meet the ambient air quality standards adopted by EPA.
Table 2 below identifies the regulations that we propose to approve:
We propose to approve only those provisions of the individual SIP submittals which relate to the permitting sources in nonattainment areas. We will act on the remaining provisions in a separate action.
These State regulations apply to each owner and/or operator who constructs or modifies a stationary source in a nonattainment area in Texas if the stationary source is major for the air pollutant for which the area is nonattainment. A stationary source is major if it emits, or has the potential to emit, the nonattaining pollutant, or precursor thereto, in amounts greater than the major source threshold for the nonattaining pollutant.
The major source threshold varies, depending on the pollutant and the classification of the nonattainment area. Any owner or operator who proposes to construct a major stationary source must obtain a permit which complies with the regulations that we are proposing to approve herein. Table 3 below lists the major source threshold for each pollutant.
Table 3 refers to classifications for areas designated nonattainment for ozone, carbon monoxide (CO), and particulate matter less than 10 micrometers (PM-10). These nonattainment classifications are defined in the Act as follows:
• Section 181(a) defines five area classifications for ozone. These five classifications are marginal, moderate, serious, severe, and extreme. Texas has no extreme ozone nonattainment areas and does not address such areas in its regulations.
• Section 186(a) defines two area classifications for CO. These two classifications are moderate and serious.
• Section 188 defines two area classifications for PM-10. These two classifications are moderate and serious.
A detailed description of the individual area classifications for ozone, CO, and PM-10 nonattainment areas is contained in EPA's General Preamble for the Implementation of Title I of the 1990 Amendments, 57 FR 13498 (April 16, 1992).
A major modification is any physical change, or change in the method of operating a major stationary source which significantly increases net emissions of the air pollutant, or precursor, for which the area is nonattainment and which the source is a major source before the modification.
Any owner or operator who proposes a major modification must obtain a permit that complies with the regulations that we are proposing to approve. Table 4 below lists the significance level for each pollutant which is used in determining whether a net emissions increase is a major modification.
The Act sets out the air quality planning requirements for nonattainment NSR in part D of title I. We have issued a “General Preamble” which describes our preliminary views for reviewing SIPs and SIP revisions submitted under part D.
We approved the Texas SIP for permitting major sources and major modifications in ozone nonattainment areas on September 27, 1995 (60 FR 49781). We approved the regulations after we determined that they meet the requirements of title I, part D, subpart 2 of the Act.
The current SIP addresses ozone nonattainment area permitting in section 116.3(a)(7). This section includes the provisions described in Table 5 of this preamble and meets the requirements of sections 173 and 182 of the Act.
Section 182 of the Act provides special provisions for ozone nonattainment areas. This section specifies individual major source thresholds for marginal, moderate, serious, severe and extreme ozone nonattainment areas. See Table 3 in section I.C of this preamble for a list of the individual major source thresholds.
Section 182 also specifies the offset ratios that are required for marginal, moderate, serious, severe and extreme ozone nonattainment areas. Table 6 below lists the applicable offset ratio for each type of ozone nonattainment area.
The current SIP includes major source thresholds and the offset ratios in Table I of Section 116.12. In Table I, the applicable offset ratio of volatile organic compounds (VOC) or NO
Finally, the current SIP includes provisions pertaining to the use of emission reduction credits as offsets and special provisions for offsetting emissions increases at facilities which test rocket engines and motors in section 116.3(c)(1) and (3).
Texas recodified Chapter 116 and submitted the recodified regulation to EPA in August 31, 1993. The recodified regulation also revised Texas' provisions for implementing section 182(c)(6) of the Act.
Subsequent to the recodification, Texas submitted revisions to waive the requirement to address NO
Texas also submitted revised definitions of
We will discuss the Texas nonattainment permitting provisions as outlined below:
• Section C discusses Texas' plan to implement the NO
• Section D discusses Texas' regulation for implementing section 182(c)(6), (7) and (8) of the Act, and
• Section E discusses the new and revised nonattainment permitting definitions.
Section 182(f) sets forth the presumption that NO
We approved petitions submitted by Texas under section 182(f) to waive NO
• On November 28, 1994, we conditionally approved two petitions from Texas, each dated June 17, 1994. This action exempted Dallas-Fort Worth (DFW)
• On April 19, 1995, we approved a petition from Texas dated August 17, 1994. This action temporarily exempted the Houston-Galveston (HGA)
• On May 23, 1997, we approved a petition from Texas dated March 8, 1996, to extend the NO
• On April 20, 1999, we approved a petition from Texas dated November 13, 1998, to rescind the conditional NO
On December 31, 1997, the NO
On February 18, 1998, we published our finding that the DFW nonattainment area has not attained the 1-hour ozone NAAQS by the applicable attainment date in the Act for moderate ozone nonattainment areas, November 15, 1996. We based the finding on the review of monitored air quality data from 1994 through 1996 for compliance with the 1-hour ozone NAAQS. As a result of this finding, the DFW ozone nonattainment area was reclassified by operation of law as a serious ozone nonattainment area, effective March 20, 1998. Texas was required to submit a new SIP, no later that March 20, 1999, addressing attainment of that standard by November 15, 1999. Texas submitted a revised plan on March 16, 1999, in satisfaction of this requirement.
In its revised plan, Texas again recognizes NO
Texas submitted the following SIP revisions to incorporate the section 182(f) NO
• On November 1, 1995, Texas submitted revisions to section 116.150 to implement the NO
• On April 13, 1998, Texas submitted revisions to sections 116.12 (Table I)and 116.150(c), to reinstate NO
• On March 16, 1999, Texas submitted revisions to sections 116.12 (definition of “major modification” and Table I) and 116.150(b), to reinstate NO
The above described revisions to section 116.150 are discussed in the following paragraphs.
Section 116.150(c) exempts NO
Section 116.150(c) further requires a source to document any proposed increase of NO
Texas submitted further revisions to section 116.150(c) on April 13, 1998. This submittal reinstates the NSR requirements for NO
The provisions of section 116.150(b) and (c), submitted November 1, 1995; and revisions submitted April 13, 1998, and March 16, 1999; are consistent with the NO
Sections 182(c)(6), (7), and (8) of the Act apply in serious and severe ozone nonattainment areas.
A detailed description of the individual area classifications for ozone nonattainment areas is contained in the EPA's General Preamble for the Implementation of Title I of the 1990 Amendments.
Section 1 below addresses the
This provision changes the process for determining applicability at existing major sources as follows:
• It changes the significance level for VOC emissions from 40 TPY to “greater than 25 TPY,” i.e., 25 TPY or less is
• It specifies a slightly different “contemporaneous” period, and
• It departs from the “non-aggregation” policy
Neither the Act itself nor the current Federal regulation defines what constitutes a “net increase” as provided in the
(1) It determines the “increase in net emissions” from the proposed modification. The net emissions from the proposed modification (referred to here as the “project net”) is the sum of all proposed creditable emissions increases and decreases proposed at the source between: (A) the date of application for the modification and (B) the date the modification begins emitting. An increase or decrease is creditable if it meets the criteria described in 40 CFR 51.165(a)(1)(vi).
(2) If the project net is an emissions increase, then the source aggregates the project net emissions increase with all other “net increases in emissions from the source” over a period of five consecutive calendar years which includes the year in which the source increase occurs. We refer to this aggregation as the contemporaneous net. If the contemporaneous net increase is greater than 25 TPY, then the proposed modification is subject to NNSR. (The
b.
The Texas SIP currently incorporates the
A source must currently undergo NNSR if the contemporaneous net increase in VOC or NO
c.
As submitted, Texas made two changes to section 116.150 (formerly section 116.3a(7)) which relate to the
(1) The proposed project triggers contemporaneous netting (the “netting trigger”) unless at least one of the following conditions are met:
(2) Texas specifies a different contemporaneous time period over which a source may aggregate creditable increases and decreases to determine its contemporaneous net emission increase.
On the basis of information gathered in 1995, we believe that the submitted regulation meets the
Under
In June 1995, we reviewed several permits issued by Texas in the Houston/Galveston area (a severe ozone nonattainment area) to assess Texas' five TPY netting trigger comparing it to the project net which triggers the requirement to perform contemporaneous netting. In this study, we evaluated which projects triggered contemporaneous netting under Texas' five TPY trigger to those which triggered contemporaneous netting based upon the project net increase. The study revealed that all projects which triggered contemporaneous netting under the project net would have triggered contemporaneous netting under the five TPY increase.
The data reviewed in 1995 indicate that the five TPY netting trigger meets the
• The data show that it is unlikely that a source will be able to indefinitely schedule projects with less than five TPY increases. A project with a five TPY increase is an extremely small project. It would be impractical for a source to indefinitely avoid nonattainment NSR by constructing a series of projects less than five TPY.
• If a source triggers the requirement to perform contemporaneous netting, it must include all creditable increases and decreases in the calculation of the contemporaneous net emissions increase. This includes any emission increases less than five TPY which did not undergo nonattainment NSR.
• The increases are inherently conservative. This is evident when one examines the procedure for calculating the creditable increases of a particular change. This creditable increase is the change:
No matter how insignificant, the structure of the Texas program necessarily requires the State to quantify and track these increases for they remain perpetually within the contemporaneous window. Thus the State assures compliance with the NAAQS. Further, these increases are counted as minor source growth under section 173(a)(1)(A) of the Act.
• Finally, we have approved a similar five TPY netting trigger in Louisiana's nonattainment SIP. Louisiana's nonattainment regulations apply in the Baton Rouge Area, a serious ozone nonattainment area. The
These facts form the basis for the conclusion that the five TPY netting trigger adopted by Texas is equivalent to and satisfies the requirement of section 182(c)(6) of the Act and therefore meets the Act.
—Section 101.1 defines the term “
—Section 116.3(a)(7) requires
—Table I of section 116.12 specifies the various classifications of nonattainment along with the associated emission levels which designate a major modification for those areas. Table I specifies the
On April 13, 1998, Texas submitted a revision to definition of “contemporaneous period.” Texas revised the definition to delete the start of the contemporaneous period at five years prior to commencement of construction for a source with a PTE of 250 TPY or greater. This change is administrative in that it recognizes that as of the date of the adoption of the revision (March 18, 1998), all permit applications would be submitted after November 15, 1997, and the applicable contemporaneous period would begin on November 15, 1992. This change does not affect applications which were submitted prior to November 15, 1997, which must consider all creditable increases and decreases which occur five years prior to the commencement of construction.
A source with a PTE greater than or equal to 250 TPY performs contemporaneous netting over a period which begins on the earlier of the date five years prior to commencement of construction or November 15, 1992. The contemporaneous period ends when the proposed increase in emission actually occurs. After November 15, 1997, the beginning date of the contemporaneous period is “tagged” at November 15, 1992, for all complete permit applications submitted after November 15, 1997. Thus, after November 15, 1997, a proposed modification considers all creditable increases and decreases which occur between November 15, 1992, and the date that the proposed increase in emissions occurs. This will result in a longer contemporaneous period than specified in section 182(c)(6) of the Act. This means that sources must demonstrate that the contemporaneous net is satisfied over an even longer period than that required by the Act.
For sources greater than 250 TPY, the tagged netting window simplifies the netting process and facilitates a source's ability to plan for the future by providing stability in the increases and decreases that are creditable for netting. Such sources have numerous options available for expansion by shutting down older, inefficient, units or adding emission controls to the units. Furthermore, these sources undertake numerous modifications each year. These numerous modifications, combined with a “moving” five year contemporaneous period would make the netting exercise difficult because increases and decreases are continually moving in and out of the netting window.
The 1995 evaluation indicated a trend towards reductions in net emissions as time passes. The data further indicate that all physical and operational changes which we reviewed would have netted out of review under both Texas' tagged contemporaneous period and under the five year contemporaneous period specified in section 182(c)(6) of the Act.
This trend towards achieving lower net emissions indicates that the netting mechanism used by Texas is achieving beneficial results inherent in reducing emissions. The reductions occur as a result of lowering the significance threshold from 40 TPY to 25 TPY
In addition, the tagged contemporaneous period used by Texas is more conservative than the five year period in the Act. The following information illustrates the conservative nature of the tagged contemporaneous period:
• The tagged contemporaneous period benefits the environment by encouraging emission reductions that would not otherwise occur. Whenever a source proposes a physical or operational change, it must demonstrate that its net emissions increase in emissions of VOC on NO
• Decreases are more likely to be removed from the contemporaneous period than increases. There are many ways that decreases may be removed from creditability for netting. Examples of decreases which will drop out of the contemporaneous period, because they are no longer “creditable” are:
Increases, however, may only be removed from consideration in subsequent netting if: (1) they undergo nonattainment permitting and (2) are offset at the appropriate ratio specified in Table I of section 116.12.
Consistent with the above discussion, we believe that the tagged contemporaneous period adopted by Texas meets the requirements of the Act. We request comments on this proposal to approve Texas tagged contemporaneous period for major sources with a PTE greater than 250 TPY of VOC.
For sources with a PTE less than 250 TPY, Texas adopted a contemporaneous period which begins five years prior to commencement of construction and ends when the proposed emission increase occurs. Texas adopted a “moving” contemporaneous period rather than the tagged contemporaneous period because these smaller sources do not have as many netting opportunities as the larger sources. The moving window provides smaller sources with greater flexibility for growth. The contemporaneous period is identical to the contemporaneous period specified in 40 CFR 52.21(b)(3)(ii) for determining applicability under the Federal regulations for prevention of significant deterioration of air quality. This contemporaneous period more closely approximates the contemporaneous period in section 182(c)(6) of the Act, which requires contemporaneous netting over a period of five consecutive calendar years.
Our evaluation of data for several Texas sources indicated that all projects which netted out of nonattainment review using Texas' definition of “contemporaneous period,” would have netted out of review using the netting period in the Act. The Technical Support Document for today's proposal contains the data gathered by us and our evaluation thereof. We conclude that the
Texas further provides that for major sources of NO
We believe that the conclusions made for VOC will hold equally well for the emissions of NO
For the reasons described above, we consider the definition of “contemporaneous period” to be consistent with the Act and proposes to approve this definition as submitted. We request comments concerning Texas' definition of “contemporaneous period.”
• Avoid NSR entirely if the source emits, or has the potential to emit, less than 100 tpy of the offset pollutant under section 182(c)(7), or
• Avoid application of Lowest Achievable Emission Rate if the source emits, or has the potential to emit, 100 tpy or more of the offset pollutant under section 182(c)(8).
A summary of the provisions of sections 182(c)(7) and (8) is in Table 8 located in paragraph b below. Table 8 also compares Texas regulations with the Act.
Texas submitted revisions to its definitions which apply to its permitting in nonattainment areas. Specifically Texas submitted definitions for:
The evaluation of these definitions is discussed below.
A new definition of “
The procedure described above is the same as the procedure for determining “net emissions increase” in 40 CFR 51.165(a)(vi). This section of the Federal rule provides that the net emissions increase is determined by adding the increase in actual emissions from a particular physical change or change in the method of operation at a stationary source with all other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.
Texas submitted the definition of “
Texas recodified its definition of “major modification” from section 101.1 of its General Rules to section 116.12, and made several revisions thereto. The former rule defined the term as any physical change or change in the method of operation of a facility/stationary source which causes a net increase in its PTE, by the amounts in Table I, of VOC or any air contaminant for which a national ambient air quality standard has been established. The former definition was inconsistent with Texas' definition of “net emissions increase” in section 116.12 which requires such increase to be calculated on an actual emissions basis. It was also not consistent with the Federal definitions of “major modification” and “net emissions increase” in 40 CFR 51.165(a)(1)(ii) and (vi), respectively. The Federal definition bases major modifications upon a net increase in actual emissions.
Texas revised its definition of “major modification” to clarify that a major modification is based upon a net emissions increase in actual emissions, in order to be consistent with its definition of “net emission increase” and to ensure consistency with the Federal definition of “major modification.” Texas also clarified that a physical change or change in the method of operation at a source not qualifying as an existing major stationary source is subject to nonattainment permitting only if the increase by itself equals or exceeds the emissions specified in the major source column in Table I.
The definition of “major modification” also includes Table I, which specifies the various classifications of nonattainment along with the associated emission levels which designate a major modification for those areas. On September 27, 1995, we approved Table I, as submitted August 31, 1993.
(1) Changed the pollutant designation for the line for ozone nonattainment areas from “VOC/NO
(2) Clarified that the Table only applies to Texas nonattainment area designations specified in 40 CFR 81.344,
(3) Clarified that the major modification threshold applies only to existing major sources and applicability of nonattainment area NSR is evaluated after netting, unless that source chooses to apply nonattainment NSR directly to the project,
(4) Clarified that VOC and NO
(5) Removed a reference to Victoria County as county designated as nonattainment for ozone but not classified because of incomplete data.
(6) Added a provision that NO
On April 13, 1998, Texas submitted a revision to Table 1 to remove the provision requiring the registration of NO
We have reviewed these changes and determine that these changes to the definition of “major modification” and to Table I are consistent with the Act.
Texas recodified the definition of “net emissions increase” to section 116.12 and formatted the definition consistent with the definition in 40 CFR 51.165(a)(1)(vi). Texas continues to define “net emissions increase” as the sum of the total increase in actual emissions from a particular physical change or change in the method of operation at a stationary source, plus any source wide creditable contemporaneous increases and decreases minus any source wide creditable contemporaneous decreases.
In the former definition, Texas specified that an increase or decrease was creditable if it occurred within a reasonable time (to be specified by the permitting authority) before the date that the increase from a particular change occurs. In ozone nonattainment areas, Texas specified a period of five consecutive calendar years (including the calendar year of the proposed increase plus the four preceding calendar years) in former section 116.3(a)(7) to determine if a particular increase in emissions of VOCS or NO
In the revised definition, Texas specified that the increase or decrease must actually occur within the contemporaneous period, which Texas has defined separately.
Texas adopted the definition of “offset ratio” to satisfy section 173(a)(1)(A) of the Act. The provisions of this definition were previously included in sections 116.3(a)(7)(C) and 116.3(a)(10)(D). In the recodified regulations, the provisions of sections 116.3(a)(7)(C) and 116.3(a)(10)(D), were incorporated into a new sections 116.150(a)(3) and 116.151(c), respectively. In the recodification, Texas removed specific language which defined “offset ratio” from sections 116.3(a)(7)(C) and 116.3(a)(10)(D) and referenced the offset ratios in Table I of section 116.12 (part of the definition of “major modification”). Texas then added the new definition of “offset ratio” and defined it as ratio of total actual reductions of emissions to the total allowable emissions increases of such pollutant from the new source. The definition references the minimum offset ratios in Table I under the definition of major modification.
On April 13, 1998, Texas submitted a revision to the definition of “offset ratio” and added a sentence which clarifies that creditable offsets must be enforceable, permanent, quantifiable through a replicable methodology, real, and surplus. The revision further specified that the reduction must occur after January 1, 1990, must be represented in the 1990 and subsequent emissions inventory, and not relied upon in issuance of any previous nonattainment permit or permit issued under regulations for the prevention of significant deterioration. This definition is consistent with section 173(a)(1) of the Act.
Texas recodified the definition of “potential to emit” from section 101.1 of its General Rules into section 116.12, and revised the term to match the definition as presently defined in 40 CFR 51.165(a)(1)(iii). The definition as revised does not conflict with the federal definition or with the Act.
Texas adopted a new definition of “stationary source” consistent with the term as defined in 40 CFR 51.165(a)(1)(i). The submitted definition does not conflict with the Federal definition or with the Act.
The Governor of Texas submitted revisions to the Texas SIP to us relating to the permitting of new and modified sources in nonattainment areas. We are proposing to approve revisions submitted August 31, 1993; November 1, 1995; July 18, 1996; April 13, 1998; and March 16, 1999. The basis for our proposed approval is discussed in section II of this preamble.
Table 9 below summarizes each individual SIP submittal that we are proposing to approve in today's action.
For the reasons stated herein, we have determined that each of the above SIP submittals or revisions to 30 TAC Chapter 116 satisfies the requirements of Title I of the Act. Sections II and III of this preamble and the TSD for this proposed action contain detailed evaluations of each of the sections submitted by the State of Texas and the basis for EPA's proposal to approve of these sections.
We are requesting comments on all aspects of the requested SIP revision and our proposed rulemaking action. Comments received by date indicated above will be considered in the development of EPA's final rule.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Executive 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612, “Federalism,” and Executive Order 12875, “Enhancing the Intergovernmental Partnership.” Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, 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 Act.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it approves a State program.
Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
The Regulatory Flexibility Act, 5 U.S.C. 600
Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Environmental protection, Air pollution control, Carbon Monoxide, Hydrocarbons, Incorporation by reference, Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Office of the Secretary, DOT.
Notice of public meetings.
The U.S. Department of Transportation (DOT) is scheduling three public listening sessions on its notice of proposed rulemaking (NPRM) to revise the Department's drug and alcohol testing procedures, published in the
The public meetings will be held on March 20 and 21, 2000, at the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, NW., Washington, DC 20004; on March 28, 2000, at the Hilton Los Angeles Airport, 5711 West Century Boulevard, Los Angeles, CA 90045, telephone number (310) 410-4000, fax (310) 410-6177; and on March 30, 2000, at the Crowne Plaza, Dallas Market Center, 7050 Stemmons Freeway, Dallas, TX 75247, telephone number (214) 630-8500, fax (214) 630-0037. Meeting facilities may accommodate only a limited number of attendees and all participants and commenters must pre-register to ensure entry into the meetings. Registration procedures are specified under supplemental information below. Other persons will be accommodated as space and time permit.
For general meeting information and to register for one of the meetings, contact the DOT contractor, Marti Bludworth, Transportation Safety Institute (TSI), Special Programs Division, DTI-100, 4400 Will Rogers Parkway, Suite 205, Oklahoma City, OK 73108-2057, telephone number (800) 862-4832, extension 323, fax number (405) 946-4268, or e-mail marti_bludworth@tsi.jccbi.gov.
The purpose of the meetings is to provide all segments of the transportation industry and the general public with an opportunity to make statements, which have not already been made previously, to the docket. These meetings would also give DOT the opportunity to ask questions and ensure that the public comments are clearly understood by the Department. It may also give the Department the opportunity to clarify issues related to comments that had already been submitted to the docket during the early days of the formal comment period. Questions by commenters and other attendees to the DOT will be permitted as time allows.
The meeting in Washington, DC will be held for a day and a half to provide ample opportunity for attendees to make comments and for DOT to have additional time, if needed, to ask follow up questions. This geographic location will also provide added opportunity for additional DOT staff and industry representatives from the Capital area to attend the meeting. All facilities will be ADA accessible. The Department will provide sign-language interpreters, if requested. Attendees needing this accommodation should notify TSI no later than February 28, 2000. If no requests are received, this service may not be available.
Because these are listening sessions, DOT will not offer space for vendors or exhibitors to display their products.
All meetings will have limited, first-come-first-served capacity due to physical constraints of the facilities. “First come” will be based on the date that the registration information is received by TSI. Once the capacity of the meeting room is reached, DOT will not be able to ensure entry to subsequent applicants. TSI will confirm
All attendees, to include commenters, must pre-register with TSI for these meetings. For all attendees, the following information is requested: Full name, full mailing address, and telephone number (in case the address is not legible or additional information is needed); the name of the city at which you want to attend the meeting; and if you will register at the hotel to take advantage of blocked rooms (Los Angeles and Dallas only). TSI will confirm your attendance by mail.
Commenters must provide the same information listed above and, in addition, indicate which agency, association, company, or institution they are representing and which issue they will address (
For convenience to the public, a form has been developed to simplify registration for these meetings. A copy may be obtained from TSI or from the DOT Fax-On-Demand system, by calling (800) 225-3784 and requesting document number 140; the registration form will be faxed to the requestor. Use of the form will expedite the process of registration and provide quicker notification to attendees.
Please note that attendees at the Washington, DC meeting will have to make arrangements for hotels and other lodging facilities on their own, since the meeting is being held in a Federal building. Names, addresses, and telephone numbers of local hotels can be obtained from TSI and will be included in the registration packet. The hotels in Los Angeles and Dallas have blocked out rooms for attendees at group rates. These will be available on a first-come basis. Room reservations must be made by the attendees directly with the hotel. Group rates will be available until March 6, 2000, at the Los Angeles and Dallas hotels, after which, they may revert to normal rates.
Individuals, whether speaking in a personal or a representative capacity on behalf of an organization, will be limited to a 4-minute statement. The Department will try to accommodate all individuals wishing to present statements at these meetings. If the available time does not permit this, individuals will be scheduled based on the date their registration is received by TSI. However, the Department reserves the right to exclude some individuals from speaking to avoid duplication or if it is necessary to present a balance of viewpoints and issues.
Individuals wishing to make statements are requested to submit three copies of their comments to be received by TSI no later than February 28, 2000; statements received after that date may not be selected. These should be typed for clarity, include the commenters name, address, phone number, and which agency or group you represent. These will be placed into the docket following the meetings and will be available to the public for review. The Department will not be recording the statements read at the meetings. However, the Department plans to record the two scheduled question and answer sessions and any questions asked by the panel of the commenters or the attendees and their answers.
The following is a draft agenda and may be modified based on commenters input and type of statements submitted. There will be a question and answer session after the morning session and again after the afternoon session. Questions should be submitted at the meeting site on 3 x 5 cards at the time of registration for the morning sessions and at the registration desk following lunch, for the afternoon sessions. Please note that the Washington, DC meeting will be scheduled for one and a half days, will start at 9 a.m. both days, and will end at 5 p.m. on the first day and 1 p.m. on the second day. Also, there will be no registration on the previous evening; registration will begin at 7:30 a.m. on the day of the meeting. The Washington, DC meeting agenda will be similar to the one day agenda, with additional time for statements and question and answer sessions.
These meetings are intended to solicit additional information and public views on the NPRM.
Forest Service, USDA.
Notice of intent to prepare an Environmental Impact Statement.
The Department of Agriculture, Forest Service, will prepare an Environmental Impact Statement (EIS) to authorize outfitter/guide (O/G) activities within four Ranger Districts of the Tongass National Forest for a period of five years. The analysis will consider saltwater shoreline-based commercial recreation use on Admiralty Island National Monument and Juneau, Hoonah and Sitka Ranger Districts. The decision to prepare an EIS is a result of initial public involvement that began with a scoping letter in October 1998. During 1998 and 1999 meetings were held with six communities and three organizations within the affected area. A letter summarizing the results of this public involvement and requesting additional comments will be distributed January 2000. The Record of Decision will disclose how the Forest Service has decided to allocate saltwater shoreline-based recreation capacity for O/G and noncommercial recreation uses. The Assistant Forest Supervisor will also decide whether or not to amend the Tongass Land and Resource Management Plan to allocate use levels for long-term management of commercial outfitting and guiding.
The total recreation capacity of the study area has been determined via an analysis of available shoreline capacity based on the Recreation Opportunity Spectrum, Tongass Forest Plan standards and guidelines dealing with encounters, and physical conditions such as anchorages, shoreline facilities, and resource concerns. Proposed allocations are based on a percentage of the total recreation carrying capacity of individual Use Areas, or subunits within the Use Areas. Use Areas are geographic areas that correspond to Guide Use Areas defined by the Alaska Department of Fish and Game for the administration of guided hunting. Under the Proposed Action, allocation of commercial guided use during the summer season would range from 10 to 40 percent of the total recreation carrying capacity and would depend on considerations such as distance from communities, subsistence use and potential impacts to resources. The Proposed Action would allocate up to 80 percent of this commercial capacity to brown bear hunting guides during both spring and fall hunts, and the remaining commercial capacity to other non-hunting O/G's. A No Action Alternative and other alternatives which respond to significant issues will be developed, analyzed and compared in the Draft EIS.
To be most useful comments concerning the scope of this project should be received by the end of February 2000.
Please send written comments to: Alaska Regional Office, Ecosystem Planning Attn.: Julie Schaefers, Shoreline-based O/G Capacity EIS, P.O. Box 21628, Juneau, AK 99802-1628.
Julia Schaefers, Planning Team Leader, Alaska Regional Office, P.O. Box 21628, Juneau, AK 99802-1628, telephone (907) 586-8796 or Marti Marshall, Recreation Specialist, Tongass National Forest, 204 Siginaka Way, Sitka, AK 99835, telephone (907) 747-4234.
During January and February of 2000 the Forest Service will be seeking information, comments, and assistance from Federal, State and local agencies, tribal organizations, individuals, and organizations that may be interested in, or affected by the proposed activities. Comments received as a result of both the earlier public involvement and the current scoping will be included in this analysis. All comments will be analyzed to identify issues to be considered in the Draft EIS. Issues currently identified for analysis in the EIS include potential effects of the allocation to economic opportunities, conflicts between commercial operations, displacement of resident users, impacts to wildlife habitat, and the effect on subsistence uses.
Based on the results of scooping, alternatives will be developed, analyzed, and compared in the Draft EIS. The Draft EIS will be filed with the Environmental Protection Agency (EPA) in September 2000. Comments on the DEIS will be considered and responded to in the Final EIS, to be completed by January 2001.
The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the Federal Register. The Forest Service believes, at this early stage, 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.
Comments received in response to this solicitation, including names and addresses of those who comment, will be considered part of the public record on this Proposed Action and will be available for public inspection and may be released under FOIA. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision (36 CFR Parts 215 or 217).
Forest Service, USDA.
Notice of intent to prepare an Environmental Impact Statement.
The Department of Agriculture, Forest Service, will prepare an Environmental Impact Statement (EIS) to provide timber for the Tongass National Forest timber sale program, to enhance recreational opportunities, to develop a road management plan for the project area, and to perform watershed restoration work. The Record of Decision will disclose where, if any, the Forest Service has decided to provide timber harvest units, roads, associated timber harvesting facilities, dispersed recreation sites, and watershed improvements. The proposed action for timber harvest is to provide multiple timber sale opportunities for a total of approximately 13 million board feet (mmbf) of timber. Timber harvest will be accomplished using a variety of silvicultural prescriptions to meet the standards and guidelines of the Forest Plan. Recreation opportunity enhancement includes dispersed sites for camping and picnicking, and improved turnouts for parking. Watershed improvements includes cordoning exposed roadside banks and decommissioning roads were drainage problems exist. A range of alternatives responsive to significant issues will be developed and will include a no-action alternative. These activities were first identified during the public involvement and analysis for the Mitkof Landscape Design. The proposed 33,000 acre project area is located on parts of Value Comparison Units 447, 448, and 452 on Mitkof Island, Alaska on the Petersburg Ranger District of the Tongass National Forest. Part of this project are is within an Inventoried Roadless Area (Crystal
Comments concerning the scope of this project should be received by February 7, 2000.
Please send written comments to the Petersburg Ranger District, Tongass National Forest, Attn: Woodpecker Project Area EIS, PO Box 1328, Petersburg, AK 99833. The FAX number is (907) 772-5995.
Questions about the proposal and EIS should be directed to Patricia Grantham, District Ranger, Petersburg Ranger District, Tongass National Forest, PO Box 1328, Petersburg, AK 9983; telephone (907) 772-3871 or Cynthia Sever, Interdisciplinary Team Leader, Petersburg Ranger District, PO Box 1328, Petersburg, AK 9983; telephone (907) 772-3871.
Public participation has been an integral component of the study process and will be especially important at several points during the analysis. The proposed activities were first identified during the Mitkof Landscape Design in 1995, which incorporated aspects of collaborative stewardship. During the last year, the Forest Service has been seeking information, comments, and assistance from Federal, State, and local agencies, Federally-recognized Indian tribes, and individuals and organizations that may be interested in, or affected by, the proposed activities. Written scoping comments have been solicited through an informal scoping package that was sent to the project mailing list and available at open houses in Petersburg, AK, and Kake, AK. The scoping process will include: (1) Identification of potential issues; (2) identification of issues to be analyzed in depth; and, (3) elimination of insignificant issues or those which have been covered by a previous environmental review. For the Forest Service to best use the scoping input, comments should be received by February 7, 2000.
Based on results of scoping and the resource capabilities within the project area, alternatives including a “no action” alternative will be developed for the Draft Environmental Impact Statement. The Draft Environmental Impact Statement is projected to be filed with the Environmental Protection Agency (EPA) in March 2000. Subsistence hearings, as provided for in Title VIII, Section 810 of the Alaska National Interest Lands Conservation Act (ANILCA), will be provided, if necessary, during the comment period on the Draft Environmental Impact Statement. The Final Environmental Impact Statement and Record of Decision are anticipated to be published in July 2000.
The comment period on the 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, at this early stage, 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 proposed 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 of the proposed action, comments during scoping and comments on the Draft Environmental
Permits required for implementation include the following:
RESPONSIBLE OFFICIAL: Carol Jorgensen, Assistant Forest Supervisor, Tongass National Forest, P.O. Box 309, Alaska 99833, is the responsible official. The responsible official will consider the comments, response, disclosure of environmental consequences, and applicable laws, regulations, and policies in making the decision and stating the rationale in the Record of Decision.
Forest Service, USDA.
Notice of Meeting.
The California Coast Provincial Advisory Committee (PAC) will meet on February 2 and 3, 2000, at the Six Rivers National Forest Supervisor's Office in Eureka, California. The meeting will be held from 8:30 a.m. to 5:00 p.m. both days. The Forest Supervisor's Office is located at 1330 Bayshore Way in Eureka. Agenda items to be covered include: (1) Survey and Manage Draft Supplemental Environmental Impact Statement Presentation and Work on the Ground Subcommittee Recommendations; (2) Regional Ecosystem Office (REO) update; (3) Aquatic Conservation Subcommittee recommendations; (4) Megan Fire update; (5) Presentation on EPA's Draft Clean Water Action Plan; (6) Presentation on Natural Resources Conservation Service Erosion Control Plans; (7) Northern spotted owl baseline study final results and recommendations; and (8) Open public comment. All California Coast Provincial Advisory Committee meetings are open to the public. Interested citizens are encouraged to attend.
Direct questions regarding this meeting to Daniel Chisholm, Forest Supervisor, or Phebe Brown, Province Coordinator, USDA, Mendocino National Forest, 825 N. Humboldt Avenue, Willows, CA 95988, (530) 934-3316.
Natural Resources Conservation Service, USDA.
Notice of Finding Of No Significant Impact.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Guidelines (40 CFS Part 1500); and the Natural Resources Conservation Service Guidelines (7 CFR Part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice that an environmental impact statement is not being prepared for the Buffalo Rapids Watershed, Custer, Dawson, and Prairie Counties, Montana.
Shirley Gammon, State Conservationist, Natural Resources Conservation Service, 10 East Babcock, Room 443, Bozeman, Montana, 59715, telephone (406) 587-6813.
The environmental assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national impacts on the environment. As a result of these findings, Shirley Gammon, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.
The project concerns a plan for agricultural water management and watershed protection. The planned works of improvement include 19,000 acres of irrigation water management, nutrient management and conservation crop rotation; 2,100 acres of pest management; 500 acres of prescribed grazing; 65 miles of gated pipe; 30 miles of on-farm pipelines; 1,900 acres of center pivots; 1,900 acres of land leveling; 73 miles of lateral pipelines; improvements to 12 feedlots; and 8,000 acres of polyacrylamide application.
The Notice of a Finding of No Significant Impact (FONSI) has been forwarded to the Environmental
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
Rural Housing Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Housing Service's (RHS) intention to request an extension for a currently approved information collection in support of the regulation for Account Servicing Policies.
Comments on this notice must be received by March 20, 2000, to be assured of consideration.
Janet Stouder, Senior Loan Officer, Multi-Family Housing Portfolio Management Division, Rural Housing Service, USDA, STOP 0782, 1400 Independence Ave. SW, Washington, DC 20250-0782; Telephone (202) 720-9728.
The programs are administered under the provisions of the Consolidated Farm and Rural Development Act (CONACT), as amended. Section 339(a) of the CONACT authorizes the Secretary of Agriculture to make the rules and regulations necessary to carry out the programs authorized within the Act.
Information collection is submitted by Agency borrowers to the local Agency office servicing the county in which their operation is located and is used by agency servicing officials.
Copies of this information collection can be obtained from Tracy Gillin, Regulations and Paperwork Management Branch, at (202) 692-0039.
Proposed collection; Comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(C)(2)(A)).
Written comments must be submitted on or before March 20, 2000.
Direct all written comments to Linda Engelmeier, Departmental Forms Clearance Officer, Department of Commerce, Room 5027, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at LEngelme@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Erin Whitworth, U.S. Census Bureau, SFC-2, Rm. 2228, Washington, DC, 20233-0001, 301-457-8024, Erin.M.Whitworth@ccmail.census.gov.
The Census Bureau must provide everyone living or staying in the United States on Census Day the opportunity to be counted in Census 2000. Many programs for non-English speaking respondents have been developed to assist in questionnaire response. These programs include questionnaires and Be Counted forms in Spanish, Korean, Chinese, Tagalog, and Vietnamese; Questionnaire Assistance Centers (QACs), which provide Language Assistance Guides (LAGs) in 49 additional languages; bilingual enumerators during follow-up operations, and Telephone Questionnaire Assistance (TQA) in
The U.S. Census Bureau would like to better understand how non-English speaking respondents cope with the Census. To do this the Census Bureau is proposing to conduct a follow-up interview of long-form respondents that indicate they speak a language other than English at home. The types of information collected during the interview will address their awareness of the QACs, Be Counted forms, and LAGs; their ability to have completed the questionnaire on their own (
The reinterview will be conducted by telephone with specially trained bilingual interviewers. A telephone reinterview of approximately 5,000 cases will be conducted to result in approximately 1,000 completed cases for each of three languages. The reinterview will be done in Spanish, one language to be selected from the remaining four in which there are non-English questionnaires (Korean, Chinese, Tagalog, and Vietnamese), and one other language to be selected from those that have no non-English questionnaires. We plan to select the language groups for which the census process is expected to be most difficult based on linguistic isolation and other potential barriers to enumeration. The prevalence of the non-English language will also be a decision factor. The sample will be post-stratified based on the mode of response (
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have a practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondent; including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
The information Systems Technical Advisory Committee (ISTAC) will meet on February 3 & 4, 2000, 9 a.m., at the SPAWAR Systems Center, Rosecrans Street (Point Loma area), San Diego, California. Committee members and visitors are asked to cheek in at Visitor Reception before the meeting. Both the public session and the closed session will be held in Building 111, Room 266. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology.
1. Comments or presentations by the public.
2. An industry proposal on changes to Category 5—telecommunications.
3. Overview of encryption regulations: an industry perspective.
4. Industry presentation on low-power microprocessors.
5. An industry proposal on changes to semiconductor manufacturing equipment controls.
6. Discussion on alternatives to Composite Theoretical Performance (CTP) for measuring computer performance.
7. Discussion of matters properly classified under Executive Order 12958, dealing with U.S. export control programs and strategic criteria related thereto.
A limited number of seats will be available for the public session. Reservations are not required. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that public presentation materials or comments be forwarded before the meeting to the address listed below:
Ms. Lee Ann Carpenter, Advisory Committees MS: 3876, U.S. Department of Commerce, 15th St. & Pennsylvania Ave., N.W., Washington, D.C. 20230
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on September 10, 1999, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, that the series of meetings or portions of meetings of these Committees and of any Subcommittees thereof, dealing with the classified materials listed in 5 U.S.C. 552(c)(1) shall be exempt from the provisions relating to public meetings found in section 10(a)(1) and (a)(3), of the Federal
A copy of the Notice of Determination to close meetings or portions of meetings of these Committees is available for public inspection and copying in the Central Reference and Records Inspection Facility, Room 6020, U.S. Department of Commerce, Washington, D.C. For further information or copies of the minutes call Lee Ann Carpenter, 202-482-2583.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Rescission of the First Antidumping Duty Administrative Review.
On November 4, 1999, in response to a September 30, 1999, request made by Fagersta Stainless AB, a producer/exporter of stainless steel wire rod from Sweden, the Department of Commerce published the initiation of an administrative review of the antidumping duty order on stainless steel wire rod from Sweden, covering the period March 5, 1998 through August 31, 1999. This review has now been rescinded as a result of the timely withdrawal of the request for review by Fagersta Stainless AB.
January 18, 2000.
Brian Smith or Terre Keaton, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482-1766 and (202) 482-1280, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (“the Act”) by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department's”) regulations refer to 19 CFR part 351 (1999).
On September 15, 1998, the Department published an antidumping duty order on stainless steel wire rod from Sweden (63 FR 49329). On September 30, 1999, the above-mentioned producer/exporter requested an administrative review of the antidumping duty order on stainless steel wire rod from Sweden covering the period of March 5, 1998, through August 31, 1999. In accordance with 19 CFR 351.221(c)(1)(i), we published the initiation of the review on November 4, 1999 (64 FR 60161). On December 22, 1999, Fagersta Stainless AB (“Fagersta”) withdrew its request for review.
The Department's regulations at 19 CFR 351.213(d)(1) provide that the Department may 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. Fagersta withdrew its request for an administrative review on December 22, 1999, which is within the 90-day deadline.
Therefore, the Department has determined to grant the request to rescind this administrative review with respect to Fagersta.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Extension of Time Limit.
The Department of Commerce is extending the time limit for the preliminary results of the twelfth review of the antidumping duty order on tapered roller bearings and parts thereof, finished and unfinished, from the People's Republic of China. The period of review is June 1, 1998 through May 31, 1999. This extension is made pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act.
January 18, 2000.
James Breeden, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington D.C. 20230; telephone (202) 482-1174.
We have determined that this review will require the analysis of additional factors not present in prior reviews.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Amended Final Results of Administrative Review in Accordance with Final Court Decision on Certain Welded Carbon Steel Pipes and Tubes from Thailand.
January 18, 2000.
Dana Mermelstein or Javier Barrientos, AD/CVD Enforcement Group III, Office VII, Room 7866, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3208 or (202) 482-2243, respectively.
On October 6, 1999, the U.S. Court of International Trade (the Court) affirmed the Department of Commerce's (the Department) remand determination of the final results of the antidumping duty administrative review of Certain Welded Carbon Steel Pipes and Tubes from Thailand. As no further appeals have been filed and there is now a final and conclusive court decision in this action, we are amending our final results.
On October 16, 1997, the Department published the final results of the administrative review in Certain Welded Carbon Steel Pipes and Tubes from Thailand (62 FR 53808) (
Respondents challenged the Department's application of the affiliated parties standard, provided in 19 U.S.C. 1677(33) (1994), and our subsequent conclusion that Saha Thai was affiliated with several companies based on common control by various family groupings. In the
The Court found that the Department's interpretation of “family,” as stated in 19 U.S.C. § 1677(33)(A), was reasonable and affirmed that interpretation. However, the Court also found that the Department had provided insufficient guidance with respect to its interpretation of the term; specifically, that more distantly-related family members, beyond those listed in the statute, were to be included. Therefore, the Court ordered the Department to reconsider the use of total adverse facts available. The Court also instructed the Department to revisit other factual determinations.
On October 6, 1999, the Court affirmed the Department's remand results, upholding the use of partial adverse facts available.
Because no further appeals have been filed and there is now a final and conclusive decision in the court proceeding, effective as of the publication date of this notice, we are amending the
The “All Others Rate” was not affected by the
The Department will instruct the Customs Service to assess these revised antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service.
Import Administration, International Trade Administration, Department of Commerce.
Notice of rescission of countervailing duty administrative review and initiation and preliminary results of changed circumstances review and intent to revoke order.
In response to a request from Ispat Inland Inc. (Ispat) and Republic Technologies International (RTI) (the successors to the petitioners in this proceeding) and from domestic producer Birmingham Steel Corporation (BSC) (collectively, the domestic producers), the Department of Commerce (the Department) is rescinding the current administrative review of the countervailing duty order on certain hot-rolled lead and bismuth carbon steel products from Germany. This administrative review covers the period January 1, 1998, through December 31, 1998. In addition, in response to a request from the domestic producers, we are initiating a changed circumstances review and issuing this notice of intent to revoke the countervailing duty order on certain hot-rolled lead and bismuth carbon steel products from Germany. The domestic producers requested that the Department revoke the order retroactive to January 1, 1998, because they no longer have an interest in maintaining the order.
January 18, 2000.
Robert Copyak or Richard Herring, AD/CVD Enforcement Office VI, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone (202) 482-2613 or (202) 482-1503, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (April 1999).
On November 24, 1999, the domestic producers requested that the Department conduct a changed circumstances review to revoke the countervailing duty order on certain hot-rolled lead and bismuth carbon steel products from Germany retroactive to January 1, 1998. The domestic producers stated that circumstances have changed such that they no longer have an interest in maintaining the countervailing duty order. They also stated that they represent approximately 85 to 90 percent of the domestic production of the domestic like product to which the order pertains. The domestic producers also requested that, due to the pendency of the ongoing administrative review of the order, the Department complete the changed circumstances review on an expedited basis. On January 5, 2000, the domestic producers submitted a letter withdrawing their request for the administrative review of the period January 1, 1998, through December 31, 1998.
The products covered are hot-rolled bars and rods of nonalloy or other alloy steel, whether or not descaled, containing by weight 0.03 percent or more of lead or 0.05 percent or more of bismuth, in coils or cut lengths, and in numerous shapes and sizes. Excluded from the scope are other alloy steels (as defined by the Harmonized Tariff Schedule of the United States (HTSUS) Chapter 72, note 1 (f)), except steels classified as other alloy steels by reasons of containing by weight 0.4 percent or more of lead, or 0.1 percent or more of bismuth, tellurium, or selenium. Also excluded are semi-finished steels and flat-rolled products. Most of the products covered in this review are provided for under subheadings 7213.20.00.00 and 7214.30.00.00 of the HTSUS. Small quantities of these products may also enter the United States under the following HTSUS subheadings: 7213.31.30.00; 7213.31.60.00; 7213.39.00.30; 7213.39.00.60; 7213.39.00.90; 7213.91.30.00; 7213.91.45.00; 7213.91.60.00; 7213.99.00; 7214.40.00.10; 7214.40.00.30; 7214.40.00.50; 7214.50.00.10; 7214.50.00.30; 7214.50.00.50; 7214.60.00.10; 7214.60.00.30; 7214.60.00.50; 7214.91.00; 7214.99.00; 7228.30.80.00; and 7228.30.80.50. HTSUS subheadings are provided for convenience and Customs purposes. The written description of the scope of this proceeding is dispositive.
On January 5, 2000, the domestic producers submitted a letter withdrawing their request for the administrative review of the period January 1, 1998, through December 31, 1998. Given the domestic producers' request for a changed circumstances review and their statement of no further interest in the order retroactive to January 1, 1998, we have determined that it is reasonable to rescind this administrative review. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this administrative review.
Pursuant to section 751(d)(1) of the Act, the Department may revoke, in whole or in part, a countervailing duty order based on a review under section 751(b) of the Act (
The Department's regulations at 19 CFR 351.216(d) require the Department to conduct a changed circumstances review in accordance with 19 CFR 351.221 if it decides that changed circumstances sufficient to warrant a review exist. Section 782(h) of the Act and 19 CFR 351.222(g)(1)(i) provide further that the Department may revoke an order, in whole or in part, if it concludes that the order under review is no longer of interest to producers accounting for substantially all of the production of the domestic like product. In addition, in the event that the Department concludes that expedited action is warranted, 19 CFR 351.221(c)(3)(ii) permits the Department to combine the notices of initiation and preliminary results.
Ispat, RTI, and BSC are domestic interested parties as defined by section 771(9)(E) of the Act and 19 CFR 351.102(b). These parties indicated that they represent approximately 85 to 90 percent of the domestic production of the domestic like product to which the order pertains. We preliminarily determine that these parties represent producers accounting for substantially all of the production of the domestic like product. Therefore, based on the affirmative statement by Ispat, RTI, and BSC of no interest in the continued application of the countervailing duty order on certain hot-rolled lead and bismuth carbon steel products from Germany, we are initiating this changed circumstances review. Further, based on the domestic producers' request, we have determined that expedited action is warranted, and we are combining the notices of initiation and preliminary results. We have preliminarily determined that there are changed circumstances sufficient to warrant revocation of the order in whole. Because the statement of no interest dates back to January 1, 1998, we also are hereby notifying the public of our intent to revoke in whole the countervailing duty order on certain hot-rolled lead and bismuth carbon steel products from Germany retroactive to January 1, 1998.
If final revocation of the order occurs, we intend to instruct the Customs Service to end the suspension of liquidation and to refund any estimated countervailing duties collected for all unliquidated entries of certain hot-rolled lead and bismuth carbon steel products from Germany on or after January 1, 1998, in accordance with 19 CFR 351.222(g)(4). We will also instruct the Customs Service to pay interest on such refunds in accordance with section 778 of the Act. The current requirement for a cash deposit of estimated countervailing duties will continue until publication of the final results of this changed circumstances review.
Any interested party may request a hearing within 10 days of publication of this notice. Any hearing, if requested, will be held no later than 28 days after the date of publication of this notice. Written comments from interested parties may be submitted not later than 14 days after the date of publication of
This notice is in accordance with section 751(b)(1) of the Act and 19 CFR 351.216 and 351.222.
Notice of Issuance of an Export Trade Certificate of Review, Application No. 99-00006.
The Department of Commerce has issued an Export Trade Certificate of Review to T.P. International Expo Services Inc. (“TPIES”). This notice summarizes the conduct for which certification has been granted.
Morton Schnabel, Director, Office of Export Trading Company Affairs, International Trade Administration, 202-482-5131. This is not a toll-free number.
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR Part 325 (1999).
The Office of Export Trading Company Affairs (“OETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Department of Commerce to publish a summary of a Certificate in the
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The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
TPIES, Inc. may engage in the following activities with respect to Export Markets:
1. Provide and/or arrange for the provision of Export Trade Facilitation Services;
2. Engage in promotion and marketing activities and collect and distribute information on trade opportunities in the Export Markets;
3. Enter into exclusive and/or non-exclusive agreements with distributors, foreign buyers, and/or sales representatives in Export Markets;
4. Enter into exclusive or non-exclusive sales agreements with Suppliers, Export Intermediaries, or other persons for the sale of Products and Services in Export Markets;
5. Enter into exclusive or non-exclusive agreements with Suppliers, Export Intermediaries, or other persons for licensing Technology Rights in Export Markets;
6. Allocate sales, export orders and/or divide Export Markets among Suppliers, Export Intermediaries, or other persons for the sale of Products and Services;
7. Allocate the licensing of Technology Rights in Export Markets among Suppliers, Export Intermediaries, or other persons;
8. Establish the price of Products and Services for sale in Export Markets;
9. Establish the fee for licensing of Technology Rights in Export Markets; and
10. Negotiate, enter into, and/or manage licensing agreements for the export of Technology Rights.
1. In engaging in Export Trade Activities and Methods of Operation, TPIES, Inc. will not intentionally disclose, directly or indirectly, to any Supplier any information about any other Supplier's costs, production, capacity, inventories, domestic prices, domestic sales, or U.S. business plans, strategies, or methods that is not already generally available to the trade or public.
2. TPIES, Inc. will comply with requests made by the Secretary of Commerce on behalf of the Secretary or the Attorney General for information or documents relevant to conduct under the Certificate. The Secretary of Commerce will request such information or documents when either the Attorney General or the Secretary of Commerce believes that the information or documents are required to determine that the Export Trade, Export Trade Activities and Methods of Operation of a person protected by this Certificate of Review continue to comply with the standards of Section 303(a) of the Act.
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This Certificate protects TPIES, Inc. and its directors, officers, and employees acting on its behalf from private treble damage actions and government criminal and civil suits
A copy of this certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility Room 4102, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
International Trade Administration, Commerce.
Notice.
In support of the U.S. State Department's Russian Regional Initiative for the Russian Far East, SABIT is launching a special grant program for the region of Sakhalin, Russia. This Notice announces availability of funds for the Special American Business Internship Training Program (SABIT), for training oil and gas managers and engineers (also referred to as “interns”) from Sakhalin, Russia. The Department of Commerce, International Trade Administration (ITA) established the SABIT program in September 1990 to assist Russia's transition to a market economy. Since that time, SABIT has been matching business managers, engineers and scientists from Russia with U.S. firms which provide them hands-on training in a U.S. market economy.
Under the SABIT program, qualified U.S. firms will receive funds through a cooperative agreement with ITA to help defray the cost of hosting interns. ITA will interview and recommend eligible interns to participating companies. Interns must be from Sakhalin Region, Russia. The U.S. firms will be expected to provide the interns with a hands-on, non-academic, executive training program designed to maximize their exposure to management or technical operations. At the end of the training program, interns must return to Sakhalin, Russia.
The closing date for applications is March 3, 2000. An original and two copies of the application (Standard Form 424 (Rev. 4-92) and supplemental material) are to be sent to the address designated in the Application Kit and postmarked no later than the closing date. Applications will be considered on a “rolling” basis as they are received, subject to the availability of funds. If available funds are depleted prior to the closing date, a notice to that effect will be published in the
Request for Applications: Competitive Application kits will be available from ITA starting on the day this notice is published. To obtain a copy of the Application Kit please E-mail: SABITApply@ita.doc.gov (please state which format, e.g. WordPerfect
Liesel C. Duhon, Director, SABIT Program, U.S. Department of Commerce, phone—(202) 482-0073, facsimile—(202) 482-2443. These are not toll free numbers.
SABIT exposes Russian business managers, engineers and scientists to a completely new way of thinking in which demand, consumer satisfaction, and profits drive production. Mid to senior-level executives visiting the U.S. for internship programs with public or private sector companies will be exposed to an environment which will provide them with practical knowledge for transforming their countries' enterprises and economies to the free market. The program provides first-hand, eye-opening experience to managers, engineers and scientists which cannot be duplicated by American managers traveling to their territories.
SABIT assists economic restructuring in Russia by providing top-level business managers and engineers with practical training in American methods of innovation and management in such areas as strategic planning, financing, production, distribution, marketing, accounting, wholesaling, technology and labor relations. This first-hand experience in the U.S. economy enables interns to become leaders in establishing and operating a market economy in Russia, and creates a unique opportunity for U.S. firms to familiarize key executives from Russia with their products and services. Sponsoring U.S. firms will benefit by establishing relationships with key managers in similar industries who are uniquely positioned to assist their U.S. sponsors to do business in Russia.
The Special American Business Internship Training program's Catalog of Federal Domestic Assistance (CFA) number is 11.114.
Pursuant to section 632(a) of the Foreign Assistance Act of 1961, as amended (the “Act”) funding for the program will be provided by the United States Agency for International Development (A.I.D). ITA will award financial assistance and administer the program pursuant to the authority contained in section 635(b) of the Act and other applicable Grant rules. The estimated amount of financial assistance available for the program is $420,000.
Federal assistance will be awarded pursuant to a cooperative agreement between ITA and the recipient firm. All internships are three to eighteen (18) months. Eighteen (18) month internships are limited in number and will be available on a case-by-case basis based on the needs identified in the training proposals. In addition, ITA reserves the right to allow an intern to stay for a shorter period of time (no less than one month) if the U.S. company agrees and the intern demonstrates a need for a shorter internship based on his or her management responsibilities. ITA will reimburse companies for the round trip international travel of each intern from the intern's home city in Sakhalin, Russia to one U.S. internship site, upon submission to ITA of the paid travel invoice, payment receipt, or other evidence of payment and the form SF-270, “Request for Advance or Reimbursement.” Travel under the program is subject to the Fly America Act. Recipient firms provide $30 per day directly to interns; ITA will reimburse recipient firms for this stipend of $30 per day per intern, for up to 18 months, upon submission by company of an end-of-internship report and form SF-270. Recipient firms
U.S. firms wishing to utilize SABIT in order to be matched with an intern without applying for financial assistance may do so. Such firms will be responsible for all costs, including travel expenses, related to sponsoring the intern. However, prior to acceptance as a SABIT intern, work plans and candidates must be approved by the SABIT Program. Furthermore, program training will be monitored by SABIT staff and evaluated upon completion of training.
Eligibility: Eligible applicants for the SABIT program will include all for profit or non-profit U.S. corporations, associations, organizations or other public or private entities. Agencies or divisions of the federal government are not eligible.
Applicant proposal must provide an explanation, including description and extent of involvement, in priority business sector—oil and gas industry.
Evaluation Criteria: Consideration for financial assistance will be given to those SABIT proposals which:
(1) Demonstrate a commitment to the intent and goals of the program to provide practical, on-the-job, non-academic, non-classroom, training. Include a brief objectives section indicating why the Applicant wishes to provide an internship to a manager(s) or engineers(s) from Sakhalin, Russia, and how the proposed internship would further the purpose of the SABIT program as described above. Also, the Applicant should note how the internship to be provided will respond to the priority needs of senior business managers and engineers in Sakhalin, Russia, as determined by ITA.
(2) Present a realistic work plan describing in detail the training program to be provided to the SABIT intern(s). Work plans must include the proposed internship training activities. The components of the training activities must be described in as much detail as possible, preferably on a week-by-week basis. The description of the training activities should include an account of what the intern's(s') duties and responsibilities will be during the training.
(3) The application should also have a section noting: (a). Whether Applicant is applying to host managers or engineers (and the number of each); (b). The duration of the internship; (c). The location(s) of the internship; (d). The name, address, and telephone number of the designated internship coordinator; (e). Name(s) of division(s) in which the intern(s) will be placed; (f). The individual(s) in the U.S. company under whose supervision the intern will train; (g). the anticipated housing arrangements to be provided for the intern(s). Note that housing arrangements should be suitable for mid-and senior-level professionals, and that each intern must be provided with a private room; (h). A statement that the host firm is solidly committed to interns' return to Russia upon completion of the internships.
(4) Provide a general description of the profile of the intern(s) the Applicant would like to host, including: educational background; occupational/professional background (including number of years and areas of experience); and size and nature of organization at which the intern(s) is/are presently employed.
Evaluation criteria 1-4 will be weighted equally.
ITA does not guarantee that it will match Applicant with the profile provided to SABIT.
Each application will receive an independent, objective review by one or more three or four-member independent review panels qualified to evaluate applications submitted under the program. Applications will be evaluated on a competitive, “rolling” basis (first-come, first-served) as they are received in accordance with the selection evaluation set forth above. Awards will be made to those applications which successfully meet the selection criteria. If funds are not available for all those applications which successfully meet the criteria, awards will be made to the first applications received which successfully do so. ITA reserves the right to reject any application; to limit the number of interns per applicant; to limit the duration of training; and to waive informalities and minor irregularities in applications received. The final selecting official reserves the right to make awards based on U.S. geographic and organization size diversity among applicants, as well as to consider priority business sectors (listed in Project Funding Priorities, above) when making awards. Recipients may be eligible, pursuant to approval of an amendment of an active award, to host additional interns under the program. ITA reserves the right to evaluate applicants based on past performance. The Director of the SABIT Program is the final selecting official for each award.
Applicants must submit: (1) Evidence of adequate financial resources of Applicant organization to cover the costs involved in providing an internship(s). As evidence of such resources, Applicant should submit financial statements audited by an outside organization or an annual report including such statements. If these are not available, a letter should be provided from the Applicant's bank or outside accountant attesting to the financial capability of the firm to undertake the scope of work involved in training an intern under the SABIT program. (2) Evidence of a satisfactory record of performance in grants, contracts and/or cooperative agreements with the Federal Government, if applicable. (Applicants who are or have been deficient in current or recent performance in their grants, contracts, and/or cooperative agreements with the Federal Government shall be presumed to be unable to meet this requirement) (3) A statement that the Applicant will provide medical insurance coverage for interns during their internships. Recipients will be required to submit proof of the interns' medical insurance coverage to the Federal Program Officer, before the interns' arrivals. The insurance coverage must include an accident and comprehensive medical insurance program as well as coverage for accidental death, emergency medical evacuation, and repatriation.
Other Requirements: All applicants are advised of the following:
1. No award of Federal funds shall be made to an Applicant who has an outstanding delinquent Federal debt until either the delinquent account is paid in full, a negotiated repayment schedule is established and at least one payment is received, or other arrangements satisfactory to the Department of Commerce (DOC) are made.
2. A false statement on the application is grounds for denial or termination of funds and grounds for possible punishment by a fine or imprisonment as provided in 18 U.S.C. 1001.
3. Recipients and subrecipients are subject to all Federal laws and Federal and Departmental regulations, policies and procedures applicable to financial assistance awards.
4. Participating companies will be required to comply with all relevant U.S. tax and export regulations. Export controls may relate not only to licensing of products for export, but also to technical data transfer.
5. Applications under this program are not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.”
6. If applicants incur any costs prior to an award being made, they do solely at their own risk of not being reimbursed by the Government. Notwithstanding any verbal or written assurance that may have been received, there is no obligation on the part of DOC to cover pre-award costs.
7. Past performance: Unsatisfactory performance by an applicant under prior Federal awards may result in an application not being considered for funding.
8. No obligation for future funding: If an application is selected for funding, DOC has no obligation to provide any additional future funding in connection with that award. Renewal of an award to increase funding or extend the period of performance is at the total discretion of DOC.
9. Primary Applicant Certifications: All primary applicants must submit a completed Form CD-511, “Certifications Regarding Debarment, Suspension and Other Responsibility Matters; Drug-Free Workplace Requirements and Lobbying,” and the following explanations are hereby provided:
(a) Nonprocurement Debarment and Suspension: Prospective participants (as defined at 15 CFR Part 26, Section 105) are subject to 15 CFR Part 26, “Nonprocurement Debarment and Suspension” and the related section of the certification form prescribed above applies.
(b) Drug Free Workplace: Grantees (as defined at 15 CFR Part 26, Section 605) are subject to 15 CFR Part 26, Subpart F, “Government wide Requirements for Drug-Free Workplace (Grants)” and the related section of the certification form prescribed above applies.
(c) Anti-Lobbying: Funds provided under the SABIT program may not be used for lobbying activities. Persons (as defined at 15 CFR Part 28, Section 105) are subject to the lobbying provisions of 31 U.S.C. 1352, “Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions,” and the lobbying section of the certification form prescribed above applies to applications/bids for grants, cooperative agreements, and contracts for more than $100,000, and loans and loan guarantees for more than $150,000, or the single family maximum mortgage limit for affected programs, whichever is greater.
(d) Anti-Lobbying Disclosures: Any applicant that has paid or will pay for lobbying in connection with this award using any funds must submit an SF-LLL, “Disclosure of Lobbying Activities,” as required under 15 CFR Part 28, Appendix B.
10. All primary applicants must also submit a completed Standard Form 424, “Application for Federal Assistance” and a Standard Form 424B, “Assurances—Non-Construction Programs.” Form CD-511 and Standard Forms 424 and 424B are included in the Application Kit supplied by the SABIT office.
11. Lower Tier Certifications: Recipients shall require applicants/bidders for subgrants, contracts, subcontracts, or other lower tier covered transactions at any tier under the award to submit, if applicable, a completed Form CD-512, “Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions and Lobbying” and disclosure form, SF-LLL, “Disclosure of Lobbying Activities.” Form CD-512 is intended for the use of recipients and should not be transmitted to DOC. SF-LLL submitted by any tier recipient or subrecipient should be submitted to DOC in accordance with the instructions contained in the award document.
12. Indirect Costs: Indirect costs are not allowed under the SABIT program.
13. Applicants are hereby notified that any equipment or products authorized to be purchased with funding provided under this program must be American-made to the greatest extent practicable.
14. The following statutes apply to this program: Section 907 of the FREEDOM Support Act, Public Law 102-511, 22 U.S.C. 5812 note (Restriction on Assistance to the Government of Azerbaijan); 7 U.S.C. § 5201
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17. The collection of information is approved by the Office of Management and Budget, OMB Control Number 0625-0225. Public reporting for this collection of information is estimated to be three hours per response, including the time for reviewing instructions, and completing and reviewing the collection of information. All responses to this collection of information are voluntary, and will be protected from disclosure to the extent allowed under the Freedom of Information Act. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Reports Clearance Officer, International Trade Administration, Department of Commerce, Room 4001, 14th and Constitution Ave., NW, Washington, DC 20230.
Patent and Trademark Office, Commerce.
Notice of meeting.
The Patent and Trademark Office is announcing, in accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), an open meeting of the Public Advisory Committee for Trademark Affairs.
The meeting will be held from 10:00 a.m. until 4:00 p.m. on Friday, February 4, 2000.
The meeting will take place at the U.S. Patent and Trademark Office, Commissioner's Conference Room, 9th floor, Crystal Park 2, 2121 Crystal Drive, Arlington, Virginia 22202.
Sharon Marsh by mail marked to her attention and addressed to Office of the Assistant Commissioner for Trademarks, Patent and Trademark Office, 2900 Crystal Drive, South Tower Building, Suite 10B10, Arlington, VA 22202-3513; by telephone at (703) 308-9100, extension 45; by fax at (703) 308-9395; or by e-mail to sharon.marsh@uspto.gov.
The meeting will be open to public observation. Accordingly, seating will be available to members of the public on a first-come-first-served basis. Members of the public will be permitted to make oral comments of three (3) minutes each. Written comments and suggestions will be accepted before or after the meeting on any of the matters discussed. Copies of the minutes will be available upon request. The agenda for the meeting will be the implementation of the Patent and Trademark Office Efficiency Act (Pub. L. 106-113, Title VI, Subtitle G).
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs reducing limits.
January 19, 2000.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.ustreas.gov. For information on embargoes and quota re-openings, call (202) 482-3715.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being reduced for carryforward used.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on December 1, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in Bangladesh and exported during the twelve-month period which began on January 1, 2000 and extends through December 31, 2000.
Effective on January 19, 2000, you are directed to reduce the limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
January 11, 2000.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs reducing a limit.
January 19, 2000.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.ustreas.gov. For information on embargoes and quota re-openings, call (202) 482-3715.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limit for Category 443 is being reduced for carryforward used.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Committee for the Implementation of Textile Agreements
Commissioner of Customs,
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on September 13, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textile products, produced or manufactured in Costa Rica and exported during the twelve-month period which began on January 1, 2000 and extends through December 31, 2000.
Effective on January 19, 2000, you are directed to reduce the current limit for Category 443 to 212,012 numbers
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs reducing limits.
January 20, 2000.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.ustreas.gov. For information on embargoes and quota re-openings, call (202) 482-3715.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being reduced for carryforward used.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 4, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textile products, produced or manufactured in Guatemala and exported during the period which began on January 1, 2000 and extends through December 31, 2000.
Effective on January, 20, 2000, you are directed to reduce the current limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The guaranteed access levels for the above categories remain unchanged.
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs reducing a limit.
January 20, 2000.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, refer to the Quota Status Reports posted on the bulletin boards of each Customs port or call (202) 927-5850. For information on embargoes and quota re-openings, call (202) 482-3715.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limit for Category 443 is being reduced for carryforward used.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
January 11, 2000.
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on December 14, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain wool textile products, produced or manufactured in the Former Yugoslav Republic of Macedonia and exported during the twelve-month period beginning on January 1, 2000 and extending through December 31, 2000.
Effective on January 20, 2000, you are directed to reduce the limit for Category 443 to 164,799 numbers
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception to the rulemaking provisions of 5 U.S.C.553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs reducing limits.
January 20, 2000.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.ustreas.gov. For information on embargoes and quota re-openings, call (202) 482-3715.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being reduced for carryforward used.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on September 13, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in Mauritius and exported during the twelve-month period which began on January 1, 2000 and extends through December 31, 2000.
Effective on January 20, 2000, you are directed to reduce the current limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs directing Customs not to apply the directive regarding denial of entry to shipments from certain companies.
January 18, 2000.
Martin Walsh, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 12475 of May 9, 1984, as amended.
In a notice and letter to the Commissioner of Customs, dated July 27, 1999, and published in the
Based on information received since that time, CITA has determined that Artistica, Fabrica de Artigos de Vestuario; and Leon Garment Factory Ltd., aka Westburg Lda., two of the listed companies, should not be subject to that directive. Effective on January 18, 2000, Customs should not apply the directive to shipments of textiles and textile products allegedly manufactured by these companies. CITA expects that Customs will conduct on-site
Dear Commissioner: In the letter to the Commissioner of Customs, dated July 27, 1999 (64 FR 41395), the Chairman of CITA directed the U.S. Customs Service to deny entry to textiles and textile products allegedly manufactured by certain listed companies; Customs had informed CITA that these companies were found to have been illegally transshipping, closed, or unable to produce records to verify production.
Based on information received since that time, CITA has determined that Artistica, Fabrica de Artigos de Vestuario; and Leon Garment Factory Ltd., aka Westburg Lda., two of the listed companies, should not be subject to that directive. Effective on January 18, 2000, Customs is directed to not apply the directive to shipments of textiles and textile products allegedly manufactured by these companies. CITA expects that Customs will conduct on-site verifications of these companies' textile and textile product production.
CITA has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Department of Defense, Defense Intelligence Agency.
Notice.
Pursuant to the provisions of Subsection (d) of Section 10 of Public Law 92-463, as amended by Section 5 of Public Law 94-409, notice is hereby given that a closed meeting of the DIA Science and Technology Advisory Board has been scheduled as follows:
26-27 January 2000, 8:00 a.m. to 16:00 p.m.).
The Defense Intelligence Agency, Bolling AFB, Washington, DC 20340.
Maj. Donald R. Culp, Jr., USAF, Executive Secretary, DIA Science and Technology Advisory Board, Washington, DC 20340-1328, (202) 231-4930.
The entire meeting is devoted to the discussion of classified information as defined in Section 552b(c)(I), Title 5 of the U.S. Code, and therefore will be closed to the public. The Board will receive briefings on and discuss several current critical intelligence issues and advise the Director, DIA, on related scientific, and technical matters.
DoD, Per Diem, Travel and Transportation Allowance Committee.
Notice of Revised Non-Foreign Overseas Per Diem Rates.
The Per Diem, Travel and Transportation Allowance Committee is publishing Civilian Personnel Per Diem Bulletin Number 212. This bulletin lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. AEA changes announced in Bulletin Number 194 remain in effect. Bulletin Number 212 is being published in the
January 1, 2000.
This document gives notice of revisions in per diem rates prescribed by the Per Diem Travel and Transportation Allowance Committee for non-foreign areas outside the continental United States. It supersedes Civilian Personnel Per Diem Bulletin Number 211. Distribution of Civilian Personnel Per Diem Bulletins by mail was discontinued. Per Diem Bulletins published periodically in the
National Assessment Governing Board; Department of Education.
Notice of Information Collection Activity; Request for Comment.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before February 17, 2000.
Submit written comments identified by “ICR: VNT Research and Validation Support Studies (Option Year 2)” by mail or in person addressed to: Ray Fields, Assistant Director, National Assessment Governing Boards, Suite 825, 800 North Capitol Street, N.W., Washington, DC 20002.
Comments may also be submitted electronically by sending electronic mail (e-mail) to Ray_@FieldsED.GOV. Electronic comments must be identified by the title of the ICR. No confidential business information should be submitted through e-mail. Comments sent by e-mail must be submitted as an ASCII file avoiding the use of special characters an any form of encryption.
Information submitted as a comment concerning this document may be claimed confidential by marking any part or all of that information as confidential business information (CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. A copy of the comment that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by NAGB without prior notice.
All written comments will be available for public inspection at the address given above from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.
Ray Fields, Assistant Director, National Assessment Governing Board, Suite 825, 800 North Capitol Street, N.W., Washington, DC 20002. Telephone (202) 357-0395; e-mail:Ray_Fields@ED.GOV.
Copies of this ICR may be obtained from the contact person listed above.
The National Assessment Governing Board is seeking comments on the following Information Collection Request (ICR).
The data collected will serve two purposes: (a) Provide information on the feasibility of a calibration linkage between the proposed Voluntary National Test (VNT) and the National Assessment of Education Progress (NAEP) (more specifically—between a test designed to give individual results and a survey designed to report group results); and (b) provide information needed to inform policy and practice related to test accommodations for students with limited English proficiency, specifically, to help guide the development of an 8th grade mathematics test booklet in two languages (
The two research studies will also assist NAGB in making three of the four determination required by Congress: (1) The extent to which test items selected for use on the tests are free from racial, cultural or gender bias; (2) whether the test development process and test items adequately assess student reading and mathematics comprehension in the form most likely to yield accurate information regarding student achievement in reading and mathematics; and (3) whether the test development process and test items take into account the account the needs of disadvantaged, limited English proficient and disabled students.
The first study is directed toward establishing the feasibility of a calibration linkage between a test form resembling an individual test and a survey of group results—the National Assessment. Research questions to be answered include the following: What are the effects on the measurement of student performance of an individually administered test that shares a framework with NAEP but which differs somewhat from NAEP in content coverage, administration, and unit of analysis? It is possible to establish a strong link between the group-focused results of NAEP and such an individually administered test? What inferences can be supported by such a link?
4800 students from Grade 4 and 4800 students from Grade 8 are expected to participate in this study. The 9600 students will be divided equally across three conditions.
Students in the first condition will take a “NAEP Special Form” booklet, consisting of NAEP items constructed to be as parallel as possible to the proposed VNT forms. This parallelism would include content coverage, timing, and shape of the test information function (TIF), which has been proposed to be flatter than the TIF for NAEP. Because empirical information on each item is needed to construct a form with a specified TIF, the items would come from the previous NAEP administration in the respective subjects.
Students in the second condition would take “Extended NAEP” booklets, which are based on blocks of items from the 2000 NAEP administration and would be constructed to be representative of the content and statistical specifications (TIF) of NAEP. The forms for Grade 8 mathematics would consist of six intact 15-minute blocks administered in two 45-minute sessions. The forms for Grade 4 reading would consist of four NAEP reading blocks, also administered in two 45-minute sessions. (Because the reading blocks are timed at 25 minutes each, some items will have to be deleted to fit into the reduced testing time.) The administration of these forms would be
In the first two conditions of this proposed study, the two types of forms would be spiraled together and administered to equivalent samples of students. Because the NAEP Special Forms and the Extended-NAEP forms would be administered under the same conditions, issues of administration, timing, and motivation become moot. If the content match between the NAEP Special forms and the simulated VNT forms could be made sufficiently close, a linking study between the two types of forms would approximate a linkage study between actual VNT forms and Extended-NAEP. If a calibration were successful, the resulting linkage interpretations would be in terms of student performance on NAEP when NAEP is given under VNT conditions.
Students in the third condition differ from the other two in that they would be taking the “NAEP Special Form” under motivated circumstances. It is quite plausible that the same student would perform at a higher level under a motivated situation such as the VNT, where individual scores are obtained under a low motivation situation such as the NAEP. This differential effect of motivation could impact achievement level cut-points (among other things) in ways that cannot be assessed in the two conditions described above. Consequently, the third condition of this study involves paying students $1 for every item they answer correctly. This procedure is directly modeled after research conducted on motivational interventions for the NAEP. A comparison of item parameters and test characteristic curves for the NAEP Special Forms under motivated and unmotivated conditions would provide information on the differential impact of motivation and how to adjust results for any subsequent linking study between the VNT and NAEP.
The second study involves a series of subtasks directed toward informing NAGB's inclusion and accommodation policies regarding LEP students. These tasks are:
Subtask A. Writing an issues paper covering theory and research related to the development of a dual language test. This paper would inform procedures to be used in the translation of items into the second language (
Subtask B. Using released and secure NAEP 8th grade mathematics items to construct simulated VNT-M test booklets (dual language and English-only versions). The English language version of this booklet will be the same as the one for the “NAEP Special Form described earlier.
Subtask C. Evaluating the psychometric equivalence of the dual language and English-only booklets via traditional quantitative analyses. Six hundred bilingual and LEP students will be recruited and randomly assigned to complete either the dual language or English-only version of the test booklet. Quantitative analyses will be conducted to examine the psychometric equivalence of the two test versions (mean differences; differential item functioning; correlations).
Subtask D. Conducting focus groups of students immediately after they take the VNT-M to document students' overall experience with the two types of booklets. Sixty students will be recruited to do these focus groups, in order to obtain their insights and general reactions to the booklets.
Subtask E. Conducting cognitive laboratory studies to obtain in-depth information on the validity of the translation and about how students use the dual language test. An additional nine LEP and nine English-speaking students will be asked to participate in this study, in order to explore the performance of both Anglo and Hispanic LEP students to identify solution pathways that students choose to use.
Subtask C through E will allow for a thorough investigation into the cognitive processes that bilingual and limited English proficient (LEP) students employ when using the dual language version of the VNT-M. In addition, they will provide information about factors other than mathematical knowledge and problem-solving ability that may have an effect on their performance on the test.
The five subtasks listed above will offer answers to the following research questions to examine the quality of the dual language test, taking into account several features of the items:
A total of 10,128 students is expected to participate in the two studies (4800 4th graders and 4800 8th graders in the calibration linkage feasibility study; 510 LEP and bilingual students taking the dual language or English-only math test (from which there will be 60 focus group participants); and 18 cognitive laboratory participants). These students will be recruited from 300 schools. Students in the motivated condition of the calibration linkage study, focus group participants and cognitive laboratory participants will receive a token monetary incentive. Also under consideration is a modest monetary inventive for each participating school.
The National Assessment Governing Board solicits comments to assist it:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Governing Board, including whether the information will have practical utility;
(b) Evaluate the accuracy of the Governing Board's estimates of the burden of the proposed collection of information;
(c) Enhance the quality, utility and clarity of the information to be collected;
(d) Minimize the burden of the collection of the information on those who are to respond, including through the use of appropriate automated, mechanical or other technological collection techniques or other forms of
A record has been established for this action. A public version of this record, including printed, paper versions of electronic comments, is available for inspection from 8:30 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. The public record is maintained at the National Assessment Governing Board, 800 North Capitol Street NW, Suite 825, Washington DC, 20002.
National Advisory Committee on Institutional Quality and Integrity, Department of Education (The Advisory Committee).
The purpose of this notice is to invite written comments on accrediting agencies whose applications to the Secretary for initial or renewed recognition will be reviewed at the Advisory Committee meeting to be held on May 24-26, 2000. The notice also invites written comments on agencies submitting interim reports that will be reviewed at the May meeting.
Please submit your written comments by March 3, 2000, to Karen Kershenstein, Director, Accreditation and State Liaison. You may contact her at the U.S. Department of Education, 1990 K Street, NW, 8th Floor, Room 8131, Washington, DC 20006, telephone: (202) 708-7417. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 7 p.m., Eastern time, Monday through Friday.
The National Advisory Committee on Institutional Quality and Integrity is established under Section 114 of the Higher Education Act (HEA), as amended, 20 U.S.C. 1011. One of the purposes of the Advisory Committee is to advise the Secretary of Education on the recognition of accrediting agencies and State approval agencies.
Yes, this notice announces the only opportunity you will have to submit written comments. However, a subsequent
We will review your comments, in response to this notice, as part of our evaluation of the agencies' compliance with the Secretary's Criteria for Recognition of Accrediting Agencies. The Criteria are regulations found in 34 CFR Part 602.
We will also include your comments in the staff analyses that we present to the Advisory Committee at its May 2000 meeting. Therefore, in order for us to give full consideration to the comments we receive, it is important that we receive your comments on all agencies by March 3, 2000. In all instances, your comments about agencies seeking initial or continued recognition must relate to the Criteria for the Recognition. In addition, your comments for any agency whose interim report is scheduled for review must relate to the issues raised and the Criteria for Recognition in the Secretary's letter that requested the interim report.
We will review comments received after the deadline as complaints. If such comments upon investigation reveal that the accrediting agency is not acting in accordance with the Criteria for Recognition, we will take action either before or after the meeting, as appropriate. We will notify the commentors of the disposition of those comments.
The Secretary of Education recognizes accrediting agencies and State approval agencies for public postsecondary vocational education and nurse education if he determines that they meet the Criteria for Recognition. Recognition means that the Secretary considers the agency to be a reliable authority as to the quality of education offered by institutions or programs that are encompassed within the scope of recognition he grants to the agency. The following agencies will be reviewed during the May 2000 meeting of the Advisory Committee:
1. Midwifery Education Accreditation Commission (Requested scope of recognition: to accredit and preaccredit direct-entry (non-nurse) midwifery certificate and undergraduate and graduate degree educational programs and institutions).
1. American Association for Marriage and Family Therapy, Commission on Accreditation for Marriage and Family Therapy Education (Requested scope of recognition: the accreditation of clinical training programs in marriage and family therapy at the master's, doctoral, and postgraduate levels. The agency also requests that its recognition include its preaccreditation status [“Candidacy”])
2. American Bar Association, Council of the Section of Legal Education and Admissions to the Bar (Requested scope of recognition: The accreditation of programs in legal education that lead to the first professional degree in law, as well as freestanding law schools offering such programs).
3. Accreditation Commission for Acupuncture and Oriental Medicine (Requested scope of recognition: the accreditation of first-professional master's degree and professional master's level certificate and diploma programs in acupuncture and Oriental medicine).
4. Accrediting Commission on Education for Health Services Administration (Requested scope of recognition: The accreditation of graduate programs in health services administration).
5. American Osteopathic Association, Bureau of Professional Education (Requested scope of recognition: The accreditation and preaccreditation [”Provisional Accreditation”] of freestanding institutions of osteopathic medicine and programs leading to the degree of Doctor of Osteopathy or Doctor of Osteopathic medicine)
6. American Podiatric Medical Association, Council on Podiatric Medical Education (Requested scope of recognition: The accreditation and
7. National Council for Accreditation of Teacher Education (Requested scope of recognition: the accreditation of professional education units providing baccalaureate and graduate degree programs for the preparation of teachers and other professional personnel for elementary and secondary schools).
8. New York State Board of Regents (Requested scope of recognition: The accreditation [registration] of collegiate degree-granting programs or curricula offered by institutions of higher education).
1. Puerto Rico Human Resources and Occupational Development Council.
1. Montana State Board of Nursing
All petitions and interim reports, and those third-party comments received in advance of the meeting, will be available for public inspection and copying at the U.S. Department of Education, 1990 K Street, NW, 8th Floor, Room 8131, Washington, DC 20006, telephone (202) 708-7417 between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, until May 2, 2000. They will be available again after the May 24-26 Advisory Committee meeting. It is preferred that an appointment be made in advance of such inspection or copying.
5 U.S.C. Appendix 2.
Office of Fossil Energy, DOE.
Notice of Orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that it has issued Orders granting, amending and vacating natural gas, including liquefied natural gas import and export authorizations. These Orders are summarized in the attached appendix.
These Orders may be found on the FE web site at http://www.fe.doe.gov., or on the electronic bulletin board at (202) 586-7853. They are also available for inspection and copying in the Office of Natural Gas & Petroleum Import & Export Activities, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue, S.W., Washington, D.C. 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
In the Commission's order issued on November 23, 1999, the Commission stated that it would institute further proceedings, such as a technical conference, after it had an opportunity to evaluate ANR Pipeline Company's supplemental information concerning its proposed new hourly flow transportation services and the parties' comments on such information.
Take notice that a technical conference will be held on Thursday, January 27, 2000, at 10:00 a.m., in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, D.C. 20426.
All interested parties and Staff are permitted to attend.
Take notice that the following filings have been made with the Commission:
Take notice that on January 5, 2000, Consolidated Edison Energy, Inc. (Con Edison Energy) and Northeast Utilities Service Company (NUSCO) withdrew a request for confidential treatment contained in a December 21, 1999, filing in the above-captioned docket in light of two orders issued on December 29, 1999. Con Edison Energy and NUSCO also provided additional unredacted copies of the agreements included in their earlier filing.
Con Edison Energy and NUSCO state that copies of this filing have been mailed to the Massachusetts Commission and to persons designated for service in this proceeding.
Take notice that on January 5, 2000, Select Energy, Inc. (Select) and Northeast Utilities Service Company (NUSCO) withdrew a request for confidential treatment contained in a December 29, 1999, filing in the above-captioned docket in light of two orders issued on December 29, 1999. Select and NUSCO also provided additional unredacted copies of the agreements included in their earlier filing.
Select and NUSCO state that copies of this filing have been mailed to the Massachusetts and Connecticut Commissions and to persons designated for service in this proceeding.
Take notice that on January 5, 2000, PECO Energy Company (PECO), tendered for filing under Section 205 of the Federal Power Act, 16 U.S.C. S 792 et seq., an Agreement dated December 23, 1999 with Commonwealth Energy Company (d/b/a/ electric AMERICA) (CEC) under PECO's FERC Electric Tariff Original Volume No. 1 (Tariff).
PECO requests an effective date of January 1, 2000, for the Agreement.
PECO states that copies of this filing have been supplied to CEC and to the Pennsylvania Public Utility Commission.
Take notice that on January 5, 2000, Allegheny Energy Service Corporation on behalf of Monongahela Power Company, The Potomac Edison Company and West Penn Power Company (Allegheny Power), tendered for filing Supplement No. 46 to add one (1) new Customer to the Market Rate Tariff under which Allegheny Power offers generation services.
Allegheny Power requests a waiver of notice requirements to make service available as of January 4, 2000 to NRG Power Marketing Inc.
Copies of the filing have been provided to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporation Commission, the West Virginia Public Service Commission, and all parties of record.
Take notice that on January 5, 2000, the California Independent System Operator Corporation (ISO), tendered for filing a revision to Appendix A of the Responsible Participating Transmission Owner Agreement between the ISO and Pacific Gas and Electric Company. The ISO states that the revision modifies the Appendix to add Service Agreements 42 and 43 to Bay Area Rapid Transit's list of contracts; announces in several footnotes in Appendix A the new obligations of two Scheduling Coordinators, the Western Area Power Administration and the California Power Exchange, and the authority for appointing those Scheduling Coordinators; and delete Lassen Municipal Utility District, Minnesota Methane, Power Exchange, and Sierra Pacific from Appendix A.
The ISO requests that the revision be made effective as of November 17, 1999.
The ISO states that this filing has been served on all parties listed on the Restricted Service List in Docket Nos. ER98-1057-000,
Take notice that on January 5, 2000, Ameren Services Company (ASC), the transmission provider, tendered for filing a Service Agreement for Long-Term Firm Point-to-Point Transmission Service between ASC and Reliant Energy Services, Inc., (RES). ASC asserts that the purpose of the Agreement is to permit ASC to provide transmission service to RES pursuant to Ameren's Open Access Transmission Tariff filed in Docket No. ER96-677-004.
Take notice that on January 5, 2000, PECO Energy Company (PECO), tendered for filing under Section 205 of the Federal Power Act, 16 U.S.C. S 792
PECO requests an effective date of January 1, 2000, for the Agreement.
PECO states that copies of this filing have been supplied to NEV and to the Pennsylvania Public Utility Commission.
Take notice that on January 5, 2000, PECO Energy Company (PECO), tendered for filing under Section 205 of the Federal Power Act, 16 U.S.C. S 792
PECO requests an effective date of January 1, 2000, for the Agreement.
PECO states that copies of this filing have been supplied to PSI and to the Pennsylvania Public Utility Commission.
Take notice that on January 4, 2000, Cinergy Services, Inc. on behalf of its Operating Company affiliates, The Cincinnati Gas & Electric Company and PSI Energy, Inc. (COC), tendered for filing an executed service agreement between COC and Duke Energy Trading and Marketing, L.L.C. (DETM) replacing
Cinergy is requesting an effective date of October 29, 1997 and the same Rate Designation as per the original filing.
Take notice that on January 5, 2000, West Texas Utilities Company (WTU), tendered for filing a letter agreement, dated December 3, 1999, between WTU and Southwest Texas Electric Cooperative, Inc. (Southwest Texas) as a supplement to Southwest Texas' service agreement with WTU under WTU's Wholesale Power Choice Tariff. The supplement is being filed to address a billing error.
WTU requests an effective date of April 1, 1994 and, accordingly, seeks waiver of the Commission's notice requirements.
Copies of the filing have been served on Southwest Texas and the Public Utility Commission of Texas.
Take notice that on January 5, 2000, PP&L, Inc. (PP&L), tendered for filing with the Federal Energy Regulatory Commission an executed Letter Agreement between PP&L and UGI Utilities, Inc. (UGI), regarding the collection, and allocation among PP&L and UGI, of transmission revenue in the PP&L Group Zone by PJM Interconnection, L.L.C. (PJM) under the PJM Open Access Transmission Tariff (PJM Tariff).
PP&L requests an effective date of August 1, 1999 for the Letter Agreement. PP&L states that a copy of this filing has been provided to UGI, PJM and the Pennsylvania Public Utility Commission.
Take notice that on January 5, 2000, PP&L, Inc. (PP&L), tendered for filing a Notice of Assignment pursuant to which Allegheny Energy Supply Company, LLC (Allegheny Energy) will replace West Penn Power Company, d/b/a Allegheny Power, under Service Agreement No. 21 to PP&L's Market-Based Rate Tariff, FERC Electric Tariff First Revised Volume No. 5.
PP&L requests an effective date of the assignment of December 10, 1999.
Take notice that on January 5, 2000, PG&E Power Services Company tendered for filing a Notice of Withdrawal of quarterly reports filed with the Commission in Docket Nos. ER94-1394, ER99-976 and ER00-745.
Take notice that on January 6, 2000, Carolina Power & Light Company (CP&L), tendered for filing an executed Service Agreement with Western Resources, Inc. under the provisions of CP&L's Market-Based Rates Tariff, FERC Electric Tariff No. 4.
This Service Agreement supersedes the un-executed Agreement originally filed in Docket No. ER98-3385-000 and approved effective May 18, 1998.
Copies of the filing were served upon the North Carolina Utilities Commission and the South Carolina Public Service Commission.
Take notice that on January 6, 2000, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Company, LLC (Allegheny Energy Supply), tendered for filing Supplement No. 16 to add one (1) new Customer to the Market Rate Tariff under which Allegheny Energy Supply offers generation services.
Allegheny Energy Supply requests a waiver of notice requirements to make service available as of December 8, 1999 to Reliant Energy Services, Inc.
Copies of the filing have been provided to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporation Commission, the West Virginia Public Service Commission, and all parties of record.
Take notice that on January 6, 2000, Alliant Energy Corporate Services, Inc. (Alliant Energy) on behalf of Interstate Power Company (IPC) and Wisconsin Power & Light (WPL), tendered for filing a Negotiated Capacity Transaction (Agreement) between WPL and IPC for the period January 1, 2000 through December 31, 2000. The Agreement was negotiated to provide service under the Alliant Energy System Coordination and Operating Agreement among IES Utilities Inc., Interstate Power Company, Wisconsin Power & Light Company and Alliant Energy.
Take notice that on January 6, 2000, Alliant Energy Corporate Services, Inc. (Alliant Energy) on behalf of Interstate Power Company (IPC) and Wisconsin Power & Light (WPL), tendered for filing a Negotiated Capacity Transaction (Agreement) between WPL and IPC for the period June 1, 2000 through August 31, 2000. The Agreement was negotiated to provide service under the Alliant Energy System Coordination and Operating Agreement among IES Utilities Inc., Interstate Power Company, Wisconsin Power & Light Company and Alliant Energy.
Take notice that on January 6, 2000, Alliant Energy Corporate Services, Inc. (Alliant Energy) on behalf of Interstate Power Company (IPC) and Wisconsin Power & Light (WPL), tendered for filing a Negotiated Capacity Transaction (Agreement) between IPC and WPL for the period January 1, 2000 through December 31, 2000. The Agreement was negotiated to provide service under the Alliant IPC's Power Sales Tariff PS-1.
Take notice that on January 6, 2000, Alliant Energy Corporate Services, Inc. (Alliant Energy) on behalf of Interstate Power Company (IPC) and Wisconsin Power & Light (WPL), tendered for filing a Unit Participation Capacity Transaction (Agreement) between WPL and IPC for the period June 1, 2000 through August 31, 2000. The Agreement was negotiated to provide service under the Alliant Energy System Coordination and Operating Agreement among IES Utilities Inc., Interstate Power Company, Wisconsin Power & Light Company and Alliant Energy.
Take notice that on January 6, 2000, New Century Services, Inc. (NCS), on behalf of Public Service Company of Colorado (Public Service), tendered for filing the Master Commodity Purchase and Sale Agreement between Public Service and Reliant Energy Services, Inc., which is an umbrella service agreement under Public Service's Rate Schedule for Market-Based Power Sales (Public Service FERC Electric Tariff, Original Volume No. 6).
NCS requests that this agreement become effective on December 6, 1999.
Take notice that on January 6, 2000, Kansas City Power & Light Company (KCPL), tendered for filing a Service Agreement dated December 14, 1999, between KCPL and Madison Gas & Electric. This Agreement provides for Market Based Sales Service.
KCPL proposes an effective date of December 14, 1999, and requests waiver of the Commission's notice requirement.
Take notice that on January 6, 2000, Indianapolis Power & Light Company (IPL), tendered for filing, its Order Nos. 888 and 889 compliance filing and an application for market-based rate authority.
Copies of this filing were served on the Indiana Utility Regulatory Commission and others as provided on the official service list.
E. Any person desiring to be heard or to protest such filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's Rules of practice and procedure (18 CFR 385.211 and 385.214). All such motions or protests should be filed on or before the comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Copies of these filings are on file with the Commission and are available for public inspection. This filing may also be viewed on the Internet at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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b.
c.
d.
e.
f.
g.
h.
i.
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All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules and Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears 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.
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Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit-A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
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.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS,”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTESTS “, “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 the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. An additional copy must be sent to Director, Division of Project Review, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
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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d.
e.
f.
g.
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Further, all comment filings must include the project name and number (Battle Creek Project, No. 1121) and the heading “Comments on the Alternative Procedure”. 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 whose name appears on the official service list for the project. 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, the must also serve a copy of the document on that resource agency.
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The purpose of this notice is to invite comments on PG&E's request to use the alternative procedure. The alternative procedure is intended to simplify and expedite the amendment process by combining prefiling consultation and environmental review processes into a single process, and by facilitating greater participation and improved communication and cooperation among participants. The alternative procedure can be tailored to the project under consideration.
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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.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the tile “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “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 the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. An additional copy must be sent to Director, Division of Project Review, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
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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b.
c.
d.
e.
f.
g.
h.
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All documents (original and eight copies) should be filed with: David P. Boergers, 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 whose name appears 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.
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Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice to intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental
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.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, ‘PROTEST’, ‘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 the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. An additional copy must be sent to Director, Division of Project Review, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
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.
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m. Each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by December 31, 20002.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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b.
c.
d.
e.
f.
g.
h.
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All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules and Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears 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.
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Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) name in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
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.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “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 the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. An additional copy must be sent to Director, Division of Project Review, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
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:
a.
b.
c.
d.
e.
f.
g.
h.
Robert C. Richter III, Senior Environmental Coordinator, FPL Energy Maine Hydro, LLC, 100 Middle Street, Portland, ME 04101, (207) 771-3536.
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All documents (original and eight copies) should be filed with: David P. Boergers, 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 whose name appears 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.
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n. With this notice, we are initiating consultation with the State Historic Preservation Officer as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
o. Pursuant to Section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merits, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the filing date and serve a copy of the request on the applicant.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before February 17, 2000.
For a copy of the ICR contact Sandy Farmer at EPA by phone at (202) 260-2740, by E-Mail at Farmer.Sandy@epamail.epa.gov or download off the Internet at
The required notifications are used to inform the Agency or delegated authority when a source becomes subject to the standard. Performance test reports are needed as these are the Agency's record of a source's initial capability to comply with the emission standard, and serve as a record of the operating conditions under which compliance was achieved. The monitoring and excess emissions reports are used for problem identification, as a check on source operation and maintenance, and for compliance determinations. The information collected from record keeping and reporting requirements are used for targeting inspections, and for other uses in compliance and enforcement programs.
Responses to this information collection are deemed to be mandatory, per section 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined not to be private. However, any information submitted to the Agency for which a claim of confidentiality is made will be safeguarded according to the Agency policies set forth in Title 40, Chapter 1, part 2, subpart B—Confidentiality of Business Information (see 40 CFR part 2; 41 FR 36902, September 1, 1976; amended by 43 FR 40000, September 8, 1978; 43 FR 42251, September 20, 1978; 44 FR 17674, March 23, 1979).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. The
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the following addresses. Please refer to EPA ICR No. 1088.09 and OMB Control No. 2060-0072 in any correspondence.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before February 17, 2000.
For a copy of the ICR contact Sandy Farmer at EPA by phone at (202) 260-2740, by E-Mail at Farmer.Sandy@epamail.epa.gov or download off the Internet at
Title: Standards of Performance of Volatile Organic Compound (VOC) Emissions from the Synthetic Organic Chemical Manufacturing Industry (SOCMI), Reactor Processes, Subpart RRR; OMB Control No. 2060-0269; EPA ICR No. 1178.05, expiring 3/31/2000. This is a request for extension of a currently approved collection.
The EPA is charged under section 111 of the Clean Air Act, as amended, to establish standards of performance for new stationary sources that reflect: * * * application of the best technological system of continuous emissions reduction which (taking into consideration the cost of achieving such emissions reduction, or any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated (section 111(a)(1)).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. The
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the following addresses. Please refer to EPA ICR No. 1178.05 and OMB Control No. 2060-0269 in any correspondence.
Environmental Protection Agency.
Notice of designation.
Notice is hereby given that the Environmental Protection Agency (EPA) has designated, in accordance with 40 CFR part 53, a new equivalent method for measuring concentrations of SO
Frank F. McElroy, Human Exposure and Atmospheric Sciences Division (MD-46), National Exposure Research Laboratory, U.S. EPA, Research Triangle Park, North Carolina 27711. Phone: (919) 541-2622, email: mcelroy.frank@epamail.epa.gov.
In accordance with regulations at 40 CFR part 53, the EPA examines various methods for monitoring the concentrations of certain pollutants in the ambient air. Methods that are determined to meet specific requirements for adequacy are designated as either reference or equivalent methods, thereby permitting their use under 40 CFR part 58 by States and other agencies for determining attainment of the National Ambient Air Quality Standards. EPA hereby announces the designation of a new equivalent method for measuring SO
The new equivalent method for SO
An application for an equivalent method determination for the method based on the corresponding DKK analyzer was received by the EPA on June 21, 1999, and a notice of the receipt of this application was published in the
A test analyzer representative of this method has been tested by the applicant in accordance with the test procedures specified in 40 CFR part 53 (as amended on July 18, 1997). After reviewing the results of those tests and other information submitted by the applicant, EPA has determined, in accordance with part 53, that this method should be designated as an equivalent method. The information submitted by the applicant will be kept on file at EPA's National Exposure Research Laboratory, Research Triangle Park, North Carolina 27711 and will be available for inspection to the extent consistent with 40 CFR part 2 (EPA's regulations implementing the Freedom of Information Act).
As a designated equivalent method, this method is acceptable for use by states and other air monitoring agencies under the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. For such purposes, the method must be used in strict accordance with the operation or instruction manual associated with the method and the specifications and limitations (
In general, a method designation applies to any sampler or analyzer which is identical to the sampler or analyzer described in the application for designation. In some cases, similar samplers or analyzers manufactured prior to the designation may be upgraded (
Part 53 requires that sellers of designated reference or equivalent method analyzers or samplers comply with certain conditions. These conditions are given in 40 CFR 53.9 and are summarized below:
(a) A copy of the approved operation or instruction manual must accompany the sampler or analyzer when it is delivered to the ultimate purchaser.
(b) The sampler or analyzer must not generate any unreasonable hazard to operators or to the environment.
(c) The sampler or analyzer must function within the limits of the applicable performance specifications given in parts 50 and 53 for at least one year after delivery when maintained and operated in accordance with the operation or instruction manual.
(d) Any sampler or analyzer offered for sale as part of a reference or equivalent method must bear a label or sticker indicating that it has been designated as part of a reference or equivalent method in accordance with part 53 and showing its designated method identification number.
(e) If such an analyzer has two or more selectable ranges, the label or sticker must be placed in close proximity to the range selector and indicate which range or ranges have been included in the reference or equivalent method designation.
(f) An applicant who offers samplers or analyzers for sale as part of a reference or equivalent method is required to maintain a list of ultimate purchasers of such samplers or analyzers and to notify them within 30 days if a reference or equivalent method designation applicable to the method has been canceled or if adjustment of the sampler or analyzer is necessary under 40 CFR 53.11(b) to avoid a cancellation.
(g) An applicant who modifies a sampler or analyzer previously designated as part of a reference or equivalent method is not permitted to sell the sampler or analyzer (as modified) as part of a reference or equivalent method (although it may be sold without such representation), nor to attach a label or sticker to the sampler or analyzer (as modified) under the provisions described above, until the applicant has received notice under 40 CFR 53.14(c) that the original
(h) An applicant who offers PM
(i) An applicant who offers PM
Aside from occasional breakdowns or malfunctions, consistent or repeated noncompliance with any of these conditions should be reported to: Director, Human Exposure and Atmospheric Sciences Division (MD-77), National Exposure Research Laboratory, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711.
Designation of this equivalent method is intended to assist the States in establishing and operating their air quality surveillance systems under 40 CFR part 58. Questions concerning the commercial availability or technical aspects of these methods should be directed to the applicant.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) established the Clean Air Act Advisory Committee (CAAAC) on November 19, 1990, to provide independent advice and counsel to EPA on policy issues associated with implementation of the Clean Air Act of 1990. The Committee advises on economic, environmental, technical scientific, and enforcement policy issues.
Pursuant to 5 U.S.C. App. 2 Section 10(a)(2), notice is hereby given that the Clean Air Act Advisory Committee will hold its next open meeting on Tuesday, February 15, 2000, from approximately 8:30 a.m. to 2:15 p.m. at the Washington Marriott Hotel, 1221 22d Street, NW, Washington, DC. Seating will be available on a first come, first served basis. Four of the CAAAC's Subcommittees (Linking Energy, Land Use, Transportation, and Air Quality Concerns Subcommittee; the Permits/NSR/Toxics Integration Subcommittee; the Economic Incentives and Regulatory Innovations Subcommittee; and the Energy, Clean Air and Climate Change Subcommittee) will hold meetings on February 14, 2000. The Energy, Clean Air and Climate Change Subcommittee is scheduled to meet from 8:30 a.m. to 11:30 a.m.; the Linking Transportation Land Use and Air Quality Subcommittee is scheduled to meet From 12 a.m. to 3 p.m.; the Permits/NSR/topics Subcommittee is scheduled to meet from 3:15 p.m. to 5:45 p.m.; and the Economic Incentives and Regulatory Innovations Subcommittee is scheduled to meet from 4 p.m. to 6 p.m. All subcommittee se linking meetings will be held at the Washington Marriott Hotel, the same location as the full Committee.
The Committee agenda and any documents prepared for the meeting will be publicly available at the meeting. Thereafter, these documents, together with CAAAC meeting minutes, will be available by contacting the Office of Air and Radiation Docket and requesting information under docket item A-94-34 (CAAAC). The Docket office can be reached by telephoning 202-260-7548; FAX 202-260-4400.
Concerning this meeting of the full CAAAC, please contact Paul Rasmussen, Office of Air and Radiation, US EPA (202) 564-1306, FAX (202) 564-1352 or by mail at US EPA, Office of Air and Radiation (Mail code 6102 A), 401 M St. SW, Washington, DC 20460.
For information on the Subcommittee meetings, please contact the following individuals:
(1) Permits/NSR/Toxics Integration—Debbie Stackhouse, 919-541-5354;
(2) Economic Incentives and Regulatory Innovations—Carey Fitzmaurice, 202-564-1667;
(3) Linking Transportation, Land Use and Air Quality Concerns—Gay MacGregor, 734-668-4438; and
(4) Energy, Clean Air and Climate Change—Anna Garcia, 202-564-9492.
Additional information on these meetings and the CAAAC and its Subcommittees can be found on the CAAAC Web Site: www.epa.gov/oar/caaac/.
Environmental Protection Agency.
Notice of Meeting.
The Effluent Guidelines Task Force, an EPA advisory committee, will hold a meeting to discuss the Agency's Effluent Guidelines Program. The meeting is open to the public.
The meeting will be held on Tuesday, January 25, 2000 from 9:00 a.m. to 5:00 p.m., and Wednesday, January 26, 2000 from 8:30 a.m. to 3:00 p.m.
The meeting will take place at the Hotel Washington, 515 15th Street, NW, Washington, DC (Capital Room).
Beverly Randolph, Office of Water (4303), 401 M Street, SW, Washington, D.C. 20460; telephone (202) 260-5373; fax (202) 260-7185.
Pursuant to the Federal Advisory Committee Act (Pub. L. 92-463), the Environmental Protection Agency gives notice of a meeting of the Effluent Guidelines Task Force (EGTF). The EGTF is a subcommittee of the National Advisory Council for Environmental Policy and Technology (NACEPT), the external policy advisory board to the Administrator of EPA.
The EGTF was established in July of 1992 to advise EPA on the Effluent Guidelines Program, which develops regulations for dischargers of industrial wastewater pursuant to Title III of the Clean Water Act (33 U.S.C. 1251
The meeting is open to the public, and limited seating for the public is available on a first-come, first-served basis. The public may submit written comments to the Task Force regarding improvements to the Effluent Guidelines Program. Comments should be sent to Beverly Randolph at the above address. Comments submitted by January 21, 2000 will be considered by the Task Force at or subsequent to the meeting.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of certain pesticide chemicals in or on various food commodities.
Comments, identified by docket control number PF-913, must be received on or before February 17, 2000.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I.C. of the “SUPPLEMENTARY INFORMATION.” To ensure proper receipt by EPA, it is imperative that you identify docket control number PF-913 in the subject line on the first page of your response.
By mail: Shaja R. Brothers, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460; telephone number: (703) 308-3194; e-mail address: brothers.shaja@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
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 the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under “FOR FURTHER INFORMATION CONTACT.”
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You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number PF-913 in the subject line on the first page of your response.
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Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received pesticide petitions as follows proposing the establishment and/or amendment of regulations for residues of certain pesticide chemicals in or on various food commodities under section 408 of the Federal Food, Drug, and Comestic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that these petitions contain data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petitions. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summaries of the pesticide petitions are printed below as required by section 408(d)(3) of the FFDCA. The summaries of the petitions were prepared by the petitioner and represents the view of the petitioners. EPA is publishing the petition summaries verbatim without editing them in any way. The petition summaries announce the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received pesticide petitions (9E6012 and 9E6021) from the Interregional Project Number 4 (IR-4), New Jersey Agricultural Experiment Station, Rutgers University, New Brunswick, New Jersey 08903 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of sethoxydim in or on the raw agricultural commodities (RAC) pistachio and safflower at 0.2 and 15 parts per million (ppm). EPA has determined that the petitions contain data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petitions. Additional data may be needed before EPA rules on the petitions. This notice includes a summary of petitions prepared by BASF Corporation Agricultural Products, P.O. Box 13528, Research Triangle Park, NC 27709.
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A developmental toxicity study in rabbits fed doses of 0, 80, 160, 320, or 400 mg/kg/day with a maternal NOAEL of 320 mg/kg/day and a maternal LOAEL of 400 mg/kg/day (37% reduction in body weight gain without significant differences in group mean body weights and decreased food consumption during dosing) and a developmental NOAEL greater than 400 mg/kg/day highest dose tested (HDT).
A 2-generation reproduction study with rats fed diets containing 0, 150, 600, or 3,000 ppm (approximately 0, 7.5, 30, and 150 mg/kg/day) with no reproductive effects observed under the conditions of the study.
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i. A 1-year feeding study with dogs fed diets containing 0, 8.86/9.41, 17.5/19.9, and 110/129 mg/kg/day (males/females) with a NOAEL of 8.86/9.41 mg/kg/day (males/females) based on equivocal anemia in male dogs at the 17.5-mg/kg/day dose level.
ii. A 2-year chronic feeding/carcinogenicity study with mice fed diets containing 0, 40, 120, 360, or 1,080 ppm (equivalent to 0, 6, 18, 54, and 162 mg/kg/day) with a systemic NOAEL of 120 ppm (18 mg/kg/day) based on non-neoplastic liver lesions in male mice at the 360-ppm (54 mg/kg/day) dose level. There were no carcinogenic effects observed under the conditions of the study. The maximum tolerated dose (MTD) was not achieved in female mice.
iii. A 2-year chronic feeding/carcinogenic study with rats fed diets containing 0, 2, 6, or 18 mg/kg/day with a systemic NOAEL greater than or equal to 18 mg/kg/day HDT. There were no carcinogenic effects observed under the conditions of the study. This study was reviewed under current guidelines and was found to be unacceptable because the doses used were insufficient to induce a toxic response and an MTD was not achieved.
A second chronic feeding/carcinogenic study with rats fed diets containing 0, 360, or 1,080 ppm (equivalent to 18.2/23.0, and 55.9/71.8 mg/kg/day (males/females)). The dose levels were too low to elicit a toxic response in the test animals and failed to achieve an MTD or define a LOAEL. Slight decreases in body weights in rats at the 1,080-ppm dose level, although not biologically significant, support a free-standing NOAEL of 1,080 ppm (55.9/71.8 mg/kg/day (males/females)). There were no carcinogenic effects observed under the conditions of the study.
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BASF also considered the potential for cumulative effects of sethoxydim and other substances that have a common mechanism of toxicity. BASF is aware of one other a.i. which is structurally similar, clethodim. However BASF believes that consideration of a common mechanism of toxicity is not appropriate at this time. BASF does not have any reliable information to indicate that toxic effects produced by sethoxydim would be cumulative with clethodim or any other chemical; thus, BASF is considering only the potential risks of sethoxydim in its exposure assessment.
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A maximum residue level has not been established for sethoxydim on pistachio and safflower by the Codex Alimentarius Commission.
EPA has received a pesticide petition (9E6059) from the Interregional Research Project Number 4 (IR-4), New Jersey Agricultural Experiment Station, P. O. Box 231 Rutgers University, New Brunswick, NJ 08903 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of prometryn in or on the raw agricultural commodity cilantro at 0.1 ppm. EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition. This notice includes a summary of the petition prepared by IR-4.
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A 2-generation reproduction study in rats with a parental systemic NOAEL of 0.6 mg/kg/day in males and 0.7 mg/kg/day in females and a parental systemic LOAEL of 47.8 mg/kg/day in males and 53.6 mg/kg/day in females based on decreased food consumption, body weight and body weight gain. The reproductive systemic NOAEL is 0.65 mg/kg/day and the reproductive systemic LOAEL is approximately 50 mg/kg/day, based on decreased pup weight.
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A 2-year rat chronic feeding/carcinogenicity study with a systemic NOAEL of 29.45 mg/kg/day for males and 37.25 mg/kg/day for females and a systemic LOAEL of 60.88 mg/kg/day for males and 80.62 mg/kg/day for females based on decreased body weight and body weight gain and an increase in the incidence of renal lesions (mineralized concretions) in males. Prometryn was not carcinogenic under the conditions of the study.
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Cumulative exposure to substances with a common mechanism of toxicity. Prometryn is a member of the triazine class of pesticides. Other members of this class include atrazine, simazine, cyanazine, prometon, propazine, metribuzin, hexazinone, ametryn, terbutryne, dipropetryn, and ethiozin.
Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency considers “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” The Agency believes that “available information” in this context might include not only toxicity, chemistry, and exposure data, but also scientific policies and methodologies for understanding common mechanisms of toxicity and conducting cumulative risk assessments. IR-4 does not have, at this time, available data to determine whether prometryn has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Since there are not metabolites of toxicological concern associated with prometryn, IR-4 has not assumed that prometryn has a common mechanism of toxicity with other substances.
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FFDCA section 408 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 will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard MOE and uncertainty factor (usually 100 for interspecies and intraspecies variability) and not the additional tenfold MOE/uncertainty factor when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard MOE/safety factor.
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There are no Codex or Mexican limits for prometryn on cilantro. This proposal will harmonize tolerances with 0.1 ppm Canadian maximum limit for residues in cilantro.
Equal Employment Opportunity Commission.
Final Notice of Submission for OMB Review; Final Comment Request
In accordance with the Paperwork Reduction Act, the Equal Employment Opportunity Commission (EEOC) has submitted a request for clearance of the information collection described below to the Office of Management and Budget (OMB). A notice that the EEOC would be submitting this request was published in the
Written comments on this final notice must be submitted on or before February 17, 2000.
Comments on this final notice should be submitted to the Office of Information and Regulatory Affairs, Attention: Stuart Shapiro, Desk Officer for the U.S. Equal Employment Opportunity Commission, Office of Management and Budget, 725 17th Street, NW, Room 10235, New Executive Office Building, Washington, DC 20503 or electronically mailed to SSHAPIRO@OMB.EOP.GOV. Requests for copies of the proposed information collection request should be addressed to Mr. Neckere at the address below.
Joachim Neckere, Director, Program Research and Surveys Division, 1801 L Street, NW, Room 9222, Washington, DC 20507, (202) 663-4958 (voice) or (202) 663-7063 TDD).
EEO-3 data are used by the EEOC to investigate charges of discrimination against referral local unions. In addition, the data are used to support EEOC decisions and conciliations, and for research. Pursuant to section 709(d) of Title VII of the Civil Rights Act of 1964, as amended, EEO-3 data are also shared with 86 State and local Fair Employment Practices Agencies (FEPAs).
• Final Rule: Reorganization of Finance Board Regulations
Proposed Rule: Calculation of REFCorp Obligation
• Interim Final Rule: Amendments to Election Regulation
Notice is given that a complaint was filed by Kawasaki Kisen Kaisha, Ltd. (“Complainant”), against Intercontinental Exchange, Inc. (“Respondent”). The complaint was served on January 7, 2000. Complainant alleges that Respondent, an ocean transportation intermediary, violated section 10(a)(1) of the Shipping Act of 1984, 46 U.S.C. app. section 1709(a)(1), by incurring unpaid freight charges pursuant a service contract in the amount of $265,126.23, making false representations, uttering checks without funds, and presenting false Wire Transfer Requests.
This proceeding has been assigned to the office of Administrative Law Judges. Hearing in this matter, if any is held, shall commence within the time limitations prescribed in 46 CFR 502.61, and only after consideration has been given by the parties and the presiding officer to the use of alternative forms of dispute resolution. The hearing shall include oral testimony and cross-examination in the discretion of the presiding officer only upon proper showing that there are genuine issues of material fact that cannot be resolved on
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint that accompanies the consent agreement and the terms of the consent order—embodied in the consent agreement—that would settle these allegations. This document also contains the Statement of Chairman Pitofsky, Commissioner Anthony, and Commissioner Thompson, and the Statement of Commissioner Swindle.
Comments must be received on or before January 31, 2000.
Comments should be directed to: FTC/Office of the Secretary, Room 159, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
Richard Parker or Richard Liebeskind, FTC/H-374, 600 Pennsylvania Avenue, NW., Washington, DC 20580. (202) 326-2574 or 326-2441.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46, and section 2.34 of the Commission's Rules of Practice (16 CFR 2.34), the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of sixty (60) days, until January 31, 2000. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. This document also contains the Statement of Chairman Pitofsky, Commissioner Anthony, and Commissioner Thompson, and the Statement of Commissioner Swindle. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 30, 1999), on the World Wide Web, at “http://www.ftc.gov/os/1999/9911/index.htm.” A paper copy can be obtained from the FTC Public Reference Room, Room H-130, 600 Pennsylvania Avenue NW., Washington, DC 20580, either in person or by calling (202) 326-3627.
Public comment is invited. Comments should be directed to: FTC/Office of the Secretary, Room 159, 600 Pennsylvania Avenue, NW., Washington, DC 20580. Two paper copies of each comment should be filed, and should be accompanied, if possible, by a 3
The Federal Trade Commission (“Commission” or “FTC”) has issued a complaint (“Complaint”) alleging that the proposed merger of Exxon Corp. (“Exxon”) and Mobil Corp. (“Mobil”) (collectively “Respondents”) would violate Section 7 of the Clayton Act, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, and has entered into an agreement containing consent orders (“Agreement Containing Consent Orders”) pursuant to which Respondents agree to have entered and be bound by a proposed consent order (“Proposed Order”) and a hold separate order that requires Respondents to hold separate and maintain certain assets pending divestiture (“Order to Hold Separate”). The Proposed Order remedies the likely anticompetitive effects arising from Respondents' merger, as alleged in the Complaint. The Order to Hold Separate preserves competition in the markets for refining and marketing of gasoline, and in other markets, pending divestiture.
Exxon, which is headquartered in Irving, Texas, is one of the world's largest integrated oil companies. Among its other businesses, Exxon operates petroleum refineries that make various grades of gasoline and lubricant base stock, among other petroleum products, and sells these products to intermediaries, retailers and consumers. Exxon owns four refineries in the United States; those four refineries can process approximately 1.1 million barrels of crude oil and other feedstocks daily.
Mobil, which is headquartered in Fairfax, Virginia, is another of the world's largest integrated oil companies. Among its other businesses, Mobil operates petroleum refineries in the United States, which make gasoline, lubricant base stock, and other petroleum products, and sells those products throughout the United States. Mobil operates four refineries in the United States, which can process approximately 800 thousand barrels of crude oil and other feedstocks per day. About 7,400 retail outlets sell Mobil-branded gasoline throughout the United States. During fiscal year 1998, Mobil had worldwide revenues of approximately $52 billion and net income of approximately $2 billion.
On or about December 1, 1998, Exxon and Mobil entered into an agreement to merge the two corporations into a corporation to be known as Exxon Mobil Corp. This merger is one of several consolidations in this industry in recent years, including the combination of British Petroleum Co. plc and Amoco Corp. into BP Amoco plc; the pending combination of BP Amoco plc and Atlantic Richfield Co. (which is the subject of pending investigation by the Commission); the combination of the refining and marketing businesses of Shell Oil Co., Texaco Inc., and Star
The Complaint alleges that consummation of the merger would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45. The Complaint alleges that the merger will lessen competition in each of the following markets: (1) The marketing of gasoline in the Northeastern and Mid-Atlantic United States (including the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, and New York (collectively “the Northeast”), and the States of New Jersey, Pennsylvania, Delaware, Maryland, Virginia, and the District of Columbia (collectively the “Mid-Atlantic”), and smaller areas contained therein); (2) the marketing of gasoline in five metropolitan areas in the State of Texas; (3) the marketing of gasoline in Arizona; (4) the refining and marketing of “CARB” gasoline (specially formulated gasoline required in California) in the State of California; (5) the bidding for and refining of jet fuel for the U.S. Navy on the West Coast; (6) the terminaling of light petroleum products in the Boston, Massachusetts, and Washington, D.C., metropolitan areas; (7) the terminaling of light petroleum products in the Norfolk, Virginia, metropolitan area; (8) the transportation of refined light petroleum products to the inland portions of the States of Mississippi, Alabama, Georgia, South Carolina, North Carolina, Virginia, and Tennessee (i.e., the portions more than 50 miles from ports such as Savannah, Charleston, Wilmington and Norfolk) (“inland Southeast”); (9) the transportation of crude oil from the north slope of the State of Alaska via the Trans Alaska Pipeline System (“TAPS”); (10) the importation, terminaling and marketing of gasoline and diesel fuel in the Territory of Guam; (11) the refining and marketing of paraffinic lubricant base oils in the United States and Canada; and (12) the worldwide manufacture and sale of jet turbine lubricants.
To remedy the alleged anticompetitive effects of the merger, the Proposed Order requires Respondents to divest or otherwise surrender control of: (1) All of Mobil's gasoline marketing in the Mid-Atlantic (New Jersey, Pennsylvania, Delaware, Maryland, Virginia, and the District of Columbia), and all of Exxon's gasoline marketing in the Northeast (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, and New York); (2) Mobil's gasoline marketing in the Austin, Bryan/College Station, Dallas, Houston and San Antonio, Texas, metropolitan areas; (3) Exxon's option to repurchase retail gasoline stores from Tosco Corp. in Arizona; (4) Exxon's refinery located in Benicia, California (“Exxon Benicia Refinery”), and all of Exxon's gasoline marketing in California; (5) the terminal operations of Mobil in Boston and in the Washington, D.C. area, and the ability to exclude a terminal competitor from using Mobil's wharf in Norfolk; (6) either Mobil's interest in the Colonial pipeline or Exxon's interest in the Plantation pipeline; (7) Mobil's interest in TAPS; (8) the terminal and retail operations of Exxon on Guam; (9) a quantity of paraffinic lubricant base oil equivalent to the amount of paraffinic lubricant base oil refined in North America that is controlled by Mobil; and (10) Exxon's jet turbine oil business. The terms of the divestitures and other provisions of the Proposed Order are discussed more fully in Section IV below.
The Commission's decision to issue the Complaint and enter into the Agreement Containing Consent Orders was made after an extensive investigation in which the Commission examined competition and the likely effects of the merger in the markets alleged in the Complaint and in several other markets, including the worldwide markets for exploration, development and production of crude oil; markets for crude oil exploration and production in the United States and in parts of the United States; markets for natural gas in the United States; markets for a variety of petrochemical products; and markets for pipeline transportation, terminaling or marketing of gasoline or other fuels in sections of the country other than those alleged in the Complaint. The Commission has not found reason to believe that the merger would result in likely anticompetitive effects in markets other than the markets alleged in the Complaint.
The Commission conducted the investigation leading to the Complaint in coordination with the Attorneys General of the States of Alaska, California, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Texas, Vermont, Virginia and Washington. As a result of that joint effort, Respondents have entered into agreements with the States of Alaska, California, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Virginia and Washington, and the District of Columbia, settling charges that the merger would violate both state and federal antitrust laws.
The Complaint alleges in 12 counts that the merger would violate the antitrust laws in several different lines of business and sections of the country, each of which is discussed below. The analysis applied in each market generally follows the analysis set forth in the FTC and U.S. Department of Justice Horizontal Merger Guidelines (1997) (“Merger Guidelines”). The efficiency claims of the Respondents, to the extent they relate to the markets alleged in the Complaint, are small and speculative compared to the magnitude and likelihood of the potential harm, and would not restore the competition lost as a result of the merger even if the efficiencies were achieved.
Exxon and Mobil today are two of the largest marketers of gasoline from Maine to Virginia, and would be the largest marketer of gasoline in this region after the merger, but for the remedy specified in the Proposed Order. The merging companies are direct and significant competitors in at least 39 metropolitan areas in the Northeast and Mid-Atlantic
The Complaint alleges that the marketing of gasoline is a relevant product market, and that metropolitan areas and areas contained within them are relevant geographic markets. The Commission used metropolitan statistical areas (“MSAs”) as a reasonable approximation of geographic markets for gasoline marketing in Shell Oil Co., C-3803 (1998), and British Petroleum Co., C-3868 (1999). As described below, the evidence in this investigation suggests that pricing and consumer search patterns may indicate smaller geographic markets than MSAs as defined by the Census Bureau. To that extent, using MSAs or counties to define geographic markets likely understates the relevant levels of concentration.
The Commission has found reason to believe that the merger would significantly reduce competition in the moderately and highly concentrated markets that would result from this merger. A general understanding of the channels of trade in gasoline marketing is necessary to understand the Commission's analysis of the competitive issues and of the Proposed Order. Gasoline is sold to the general public through retail gas stations of four types: (1) Company-operated stores, where the branded oil company owns the site and operates it using its own employees; (2) lessee dealer stores, where the branded company owns the site but leases it to a franchised dealer; (3) open dealers, who own their own stations but purchase gasoline at a DTW price from the branded company; and (4) “jobber” or
Branded oil companies set the retail prices of gasoline at the stores they operate, and sometimes set those prices on a station-by-station basis. Lessee dealers and open dealers generally purchase from the branded company at a delivered price (“dealer tank wagon” or “DTW”) that the branded supplier likewise might set on a station-by-station basis. In the Northeast and Mid-Atlantic, DTW prices charged by Exxon, Mobil and their major competitors are typically set using “price zones” established by the supplier. Price zones, and the prices used within them, take account of the competitive conditions faced by particular stations or groups of stations. There might be 10 or more price zones established by an individual oil company in a metropolitan area.
Distributors or jobbers typically purchase branded gasoline from the branded company at a terminal (paying a terminal “rack” price), and deliver the gasoline themselves to jobber-supplied stations at prices or transfer prices set by the distributor.
In much of the Northeast and Mid-Atlantic, Exxon, Mobil and their principal competitors (Motiva, BP Amoco, and Sunoco) use delivered pricing and price zones to set DTW prices based on the level of competition in the immediately surrounding area. These DTW prices generally are unrelated to the cost of hauling fuel from the terminal to the retail store. Gasoline is a homogeneous product, and retail prices are observable (wholesale prices and retail sales volumes are also frequently known to firms in the industry). By monitoring the retail prices (and volumes) of their competitors in the immediate area, branded companies can and do adjust their DTW prices in order to take advantage of higher prices in some neighborhoods, without having to raise prices throughout a metropolitan area as a whole.
The use of price zones in the manner described above indicates that these competitors set their prices on the basis of their competitors' prices, rather than on the basis of their own costs. This is an earmark of oligopolistic market behavior. Thus, Exxon, Mobil and their principal competitors have some ability to raise their prices profitably, and have a greater ability to do so when they face fewer and less price-competitive firms in highly local markets. The effects of oligopolistic market structures (where firms base their pricing decisions on their rivals' prices, and recognize that their prices affect their sales volume) have been recognized in this industry. See Petroleum Products Antitrust Litigation, 906 F.2d 432, 443, 444 (9th Cir. 1990) (examining California gasoline market from 1968 to 1973), cert. denied sub nom.
* * * [A]s the number of firms in a market declines, the possibilities for interdependent pricing increase substantially. In determining whether to follow a unilateral price increase by a competitor, a firm in a relatively concentrated market will recognize that, because its pricing and output decisions have an effect on market conditions and will generally be watched by its competitors, there is less likelihood that any shading would go undetected or be ignored. * * * On the other hand, the firm may recognize that the higher price [charged by its competitor] is one that would produce higher profits. It may therefore decide to follow the price increase, knowing that the other firms will likely see things the same way * * *
We recognize that such interdependent pricing may often produce economic consequences that are comparable to those of classic cartels.
Market incumbents also use price zones to target entrants without having to lower price throughout a broader marketing area. With a large and dispersed network of stores, an incumbent can target an entrant by cutting price at a particular store, without cutting prices throughout a metropolitan area. By targeting price-cutting competitors, incumbents can (and have) deterred entrants from making significant investments in gasoline stations (which are specialized, sunk cost facilities) and thus from expanding to a scale at which the entrant could affect price throughout the broader metropolitan area.
While branded distributors historically have moderated the effects of zone pricing through arbitrage, distributors' ability to do so is increasingly limited in the Northeast and Mid-Atlantic by major branded companies' efforts to limit their distribution to direct channels, especially in major metropolitan areas. The merger would reduce interbrand competition through the elimination of one independent supplier; the Commission evaluated the effect of that reduction in interbrand competition in the context of the contemporaneous reduction in intrabrand competition that it found in these markets.
Entry appears unlikely to constrain noncompetitive behavior in the Northeast and Mid-Atlantic. New gas station sites are difficult to obtain in the Northeast and Mid-Atlantic, and the evidence in this investigation suggests that entry through the construction of new stations is unlikely to occur in a manner sufficient to constrain price increases by incumbents. As in British Petroleum Co., C-3868, the Commission has not seen substantial evidence that jobbers or open dealers are likely to switch to new entrants in the event of a small price increase. Therefore, the Commission has found it unlikely that a new entrant might enter a market by converting such stations in a manner that would meaningfully constrain the behavior of incumbents.
The merger is likely to reduce competition in Northeastern and Mid-Atlantic gasoline markets and could result in a price increase of 1% or more. A 1% price increase on gasoline sold in the Northeast and Mid-Atlantic (and in the Texas and Arizona markets discussed below) would cost consumers approximately $240 million annually. As described below, the Proposed Order seeks to preserve competition by requiring Respondents to divest all branded stations of Exxon or Mobil throughout the Northeast and Mid-Atlantic: (1) All Exxon branded gas stations (company operated, lessee dealer, open dealer and jobber) in Maine, New Hampshire, Vermont, Rhode Island, Connecticut, and New York, and (2) all Mobil branded stations in New Jersey, Pennsylvania, Delaware, Maryland, Virginia and the District of Columbia.
Exxon and Mobil compete in the marketing of gasoline in several metropolitan areas in Texas, and in five of those metropolitan areas (Austin, Bryan/College Station, Dallas, Houston and San Antonio) the merger would result in a moderately or highly concentrated market. The evidence collected in the investigation indicates that market conditions in these Texas markets resemble those found in the Northeast and Mid-Atlantic, particularly in the use of delivered pricing and zone pricing to coordinate prices and deter entry. The Proposed Order therefore requires Respondents to divest and assign Mobil's gasoline marketing business in these areas, as described below.
Mobil markets motor gasoline in Arizona. Exxon gasoline is marketed in Arizona by Tosco Corporation, which acquired Exxon's Arizona marketing assets and businesses and the right to sell Exxon branded gasoline in 1994. Gasoline marketing in Arizona is moderately concentrated.
Pursuant to the agreement under which Exxon sold its Arizona assets to Tosco, Exxon retains the option of repurchasing the retail gasoline stores sold to Tosco in the event Tosco were to convert the stations from the “Exxon” brand to another brand (including another brand owned by Tosco). The merger creates the risk that competition between the merged company and Tosco (selling Exxon branded gasoline) could be reduced by restricting Tosco's incentive and ability to compete against Mobil by converting the stores to a brand owned by Tosco. The Proposed Order terminates Exxon's option to repurchase these stations.
Exxon and Mobil both refine motor gasoline for use in California, which requires that motor gasoline used in that State meet particularly stringent pollution specifications mandated by the California Air Resources Board (“CARB,” hence “CARB gasoline”). More than 95% of the CARB gasoline sold in California is refined by seven firms (Chevron, Tosco, Equilon, ARCO, Exxon, Mobil and Ultramar Diamond Shamrock), all of which operate refineries in California. Those seven firms also control more than 90% of retail sales of gasoline in California through gas stations under their brands.
The Complaint alleges that the refining and marketing of CARB gasoline is a product market and line of commerce. Motorists of gasoline-fueled automobiles are unlikely to switch to other fuels in response to a small but significant and nontransitory increase in the price of CARB gasoline, and only CARB gasoline may be sold for use in California. As described below, the refining and marketing of gasoline in California is tightly integrated; refiners that lack marketing in California, and marketers that lack refineries on the West Coast, do not effectively constrain the price and output decisions of incumbent refiner-marketers.
California is a section of the country and geographic market for CARB gasoline refining and marketing because the refiner-marketers in California can profitably raise prices by a small but significant and nontransitory amount without losing significant sales to other refiners. The next closest refineries, located in the U.S. Virgin Islands and in Texas and Louisiana, do not supply CARB gasoline to California except during supply disruptions at California refineries, and are unlikely to supply CARB gasoline to California in response to a small but significant and nontransitory increase in price because of the price volatility risks associated with opportunistic shipments and the small number of independent retail outlets that might purchase from an out-of-market firm attempting to take advantage of a price increase by incumbent refiner-marketers.
To a much greater extent than in many other parts of the country, the seven refiner-marketers in California own their stations, and operate through company-operated stations, lessee dealers and open dealers, rather than through distributors.
As measured by refinery capacity, the merger will increase the HHI for CARB gasoline refining capacity on the West Coast by 171 points to 1699, at the high end of the “moderately concentrated” range of the Merger Guidelines. The Guidelines” “numerical divisions [of HHI ranges] suggest greater precision than is possible with the available economic tools and information. Other things being equal, cases falling just above and just below a threshold present comparable competitive issues.”
CARB gasoline is a homogeneous product, and (as in the Northeast and Mid-Atlantic) wholesale and retail prices are publicly available and widely reported to the industry. Integrated refiner-marketers carefully monitor the prices charged by their competitors' retail outlets, and therefore readily can identify firms that deviate from a coordinated or collusive price.
Entry by a refiner or marketer is unlikely to be timely, likely, and sufficient to defeat an anticompetitive price increase because new refining capacity requires substantial sunk costs. Retail entry is likewise difficult and costly, particularly at a scale that would support supply from an out-of-market refinery.
The merger could raise the costs of CARB gasoline substantially; a 1% price increase would cost California consumers more than $100 million annually. To remedy the harm, the Proposed Order requires the Respondents to divest Exxon's Benecia refinery, which refines CARB gasoline, and Exxon's marketing in California, as described more fully below. This divestiture will eliminate the refining overlap in the West Coast market otherwise presented by the merger.
The U.S. Navy requires a specific formulation of jet fuel that differs from commercial jet fuel and jet fuel used in other military applications. Three refiners, including Exxon and Mobil, have bid to supply the Navy on the West Coast in recent years. The merger will eliminate one of these firms as an independent bidder, raising the likelihood that the incumbents could raise prices by at least a small amount, since other bidders are unlikely to enter the market. The divestiture of Exxon's Benicia refinery, described below, resolves this concern.
Petroleum terminals are facilities that provide temporary storage of gasoline and other petroleum products received from a pipeline or marine vessel, and then redeliver these products from the terminal's storage tanks into trucks or transport trailers for ultimate delivery to retail gasoline stations or other buyers. Terminals provide an important link in the distribution chain for gasoline between refineries and retail service stations. There are no substitutes for petroleum terminals for providing terminaling services.
Count VI of the Complaint identifies two metropolitan areas that are relevant sections of the country (
The Complaint charges that the terminaling of gasoline and other light petroleum products in each of these metropolitan areas is highly concentrated, and would become significantly more concentrated as a result of the merger. Entry into the terminaling of gasoline and other light petroleum products in each of these metropolitan areas is difficult and would not be timely, likely, or sufficient to prevent anticompetitive effects that may result from the merger.
The Complaint charges that terminaling of gasoline and other light petroleum products is highly concentrated in the Norfolk, Virginia area. Exxon currently terminals gasoline in Norfolk, although Mobil does not. Mobil does terminal other light petroleum products there, and another terminaling firm, TransMontaigne, on occasion uses Mobil's wharf to receive gasoline shipments. Since TransMontaigne terminals gasoline in competition with Exxon, the merger would create or enhance Mobil's incentive to deny TransMontaigne access to Mobil's dock or increase the cost of such access, thereby limiting TransMontaigne's ability to compete against Exxon in the terminaling of gasoline. The Proposed Order remedies this effect of the merger.
The inland Southeast receives essentially all of its refined light petroleum products (including gasoline, diesel fuel and jet fuel) from either the Colonial pipeline or the Plantation pipeline. These two pipelines largely run parallel to each other from Louisiana to Washington, D.C., and directly compete to provide petroleum product transportation services to the inland Southeast. Mobil owns approximately 11 percent of Colonial and has representation on the Colonial Board of Directors. Exxon owns approximately 49 percent of Plantation, is one of Plantation's two shareholders, and has representation on Plantation's Board.
The proposed transaction would put the merged entity in a position to participate in the governance of both pipelines, and to receive confidential competitive information of each pipeline. Through its position as one of Plantation's two shareholders, Respondents could prevent Plantation from taking actions to compete with Colonial. As a result, the merger is likely substantially to lessen competition, including price and service competition, between the two pipelines. The Commission has twice previously recognized that control of overlapping interests in these two pipelines might substantially reduce competition in the market for transportation of light petroleum products to this section of the country. Shell Oil Co., C-3803; Chevron Corp., 104 F.T.C. 597, 601, 603. To prevent competitive harm from the merger, Section IX of the Proposed
Exxon and Mobil are two of the seven owners of the Trans Alaska Pipeline System (“TAPS”), which is the only means of transporting crude oil from the Alaska North Slope (“ANS”) to port in Valdez, Alaska. ANS crude is shipped primarily (but not exclusively) to refineries in California and Washington State. A relatively small amount of ANS crude is used within Alaska, and some ANS is sold to refineries in Asia. Exxon owns 20% of TAPS, while Mobil owns 3%. The owners of TAPS are entitled to capacity on the pipeline (which they can resell) in proportion to their ownership interests. Some TAPS owners—Mobil, in particular—have discounted their tariffs in an effort to attract additional shippers.
Exxon and Mobil both have available capacity on TAPS,
Gasoline and diesel fuel are supplied into Guam, primarily from Singapore, into terminals on Guam owned by Mobil, Exxon and Shell, who are the principal marketers of gasoline on Guam. Terminal capacity is essential to light petroleum products marketing on Guam. Consumers of gasoline have no alternative but to buy gasoline on Guam. Accordingly, the relevant market to analyze the transaction is the importation, terminaling and marketing of gasoline on Guam. Mobil and Exxon are the two largest marketers on Guam. The market is highly concentrated. The merger will raise the HHI by more than 2800 points to 7400, measured by station count; Exxon Mobil would have 36 of Guam's 43 stations, or 84% of stations.
The market is subject to coordination. There are three companies, and the merger would reduce their number to two. The product is homogeneous, and prices are readily observed. New entry is unlikely to defeat an anticompetitive price increase. An entrant would require sufficient terminal capacity and enough retail outlets to be able to buy gasoline at the tanker-load level, or 350,000 barrels. Terminal capacity of this scale is unavailable in Guam. In 1988 a firm attempted to enter Guam relying on publicly available terminaling; it exited within seven years, and sold its four stations to Mobil.
Section III of the Proposed Order restores competition by requiring Respondents to divest Exxon's terminal and retail assets on Guam.
Paraffinic base oil is a refined petroleum product that forms the foundation of most of the world's finished lubricants. Base oil is mixed with chemical additives and forms finished lubricants, such as motor oil and automatic transmission fluid. Most base oil is used to make products that lubricate engines, but base oil can be mixed with additives to create a large variety of finished products like newspaper ink or hydraulic fluid.
Currently Exxon produces 45.9 MBD of paraffinic base oil in North America. Mobil controls 23.8 MBD of base oil production. A combined Exxon-Mobil would control 35 percent of the base oil produced in North America. As the largest base oil producer in the United States and Canada, Exxon already dominates the base oil market. With the addition of Mobil's sizeable capacity, Exxon would have even greater control over base oil pricing.
Exxon is the price leader in base oil in the United States and Canada. Other base oil producers do not expand production to take advantage of Exxon price increases. Imports do not increase when United States prices increase because transportation costs are too great. Entry into the base oil market requires large capital investments and would be unlikely to have any effect within the next two years.
The Proposed Order remedies the likely effects of the likely merger by requiring Respondents to surrender control of a quantity of base oil production equivalent to Mobil's production in the United States.
Jet turbine oil (also known as ester-based turbine oil) is used to lubricate the internal parts of jet engines used to power aircraft. Exxon and Mobil dominate the sales of jet turbine oil, with approximately equal shares that, combined, account for 75% of the worldwide market (defined broadly), and approach 90% of worldwide sales to commercial airlines.
Entry into the development, production and sale of jet turbine oil is not likely to occur on a timely basis, in light of the time required to develop a jet turbine oil and to obtain the necessary approvals and qualifications from the appropriate military and civilian organizations. The merger would eliminate the direct competition between Exxon and Mobil, and create a virtual monopoly in sales to commercial airlines. The Proposed Order remedies the effect of the merger by requiring Respondents to divest Exxon's jet turbine oil business.
On November 30, 1999, the Commission provisionally entered into the Agreement Containing Consent Orders with Exxon and Mobil in settlement of a Complaint. The Agreement Containing Consent Orders contemplates that the Commission would issue the Complaint and enter the Proposed Order and the Order to Hold Separate.
Each divestiture or other disposition required by the Proposed Order must be made to an acquirer that receives the prior approval of the Commission and in a manner approved by the Commission, and must be completed within nine months of executing the Agreement Containing Consent Orders (except that the divestiture of the Benicia Refinery and Exxon marketing in California must be completed within twelve months of executing the Agreement Containing Consent Orders).
Respondents are required to provide the Commission with a report of compliance with the Proposed Order every sixty (60) days until the divestitures are completed, and annually for a period of 20 years.
In the event Respondents fail to complete the required divestitures and other obligations in a timely manner, the Proposed Order authorizes the Commission to appoint a trustee or trustees to negotiate the divestiture of
Respondents have also agreed to the entry of an Order to Hold Separate and Maintain Assets, and the Commission has entered that Order. Under the terms of that Order, until the divestitures of the Benicia Refinery, marketing assets, base oil production and jet turbine oil business have been completed, Respondents must maintain Mobil's Northeastern, Mid-Atlantic and Texas fuels marketing businesses, Mobil's California refining and marketing businesses, and Exxon's ester based turbine oil business as separate, competitively viable businesses, and not combine them with the operations of the merged company. Under the terms of the Proposed Order, Respondents must also maintain the assets to be divested in a manner that will preserve their viability, competitiveness and marketability, and must not cause their wasting or deterioration, and cannot sell, transfer, or otherwise impair the marketability or viability of the assets to be divested. The Proposed Order and the Hold Separate Order specify these obligations in greater detail.
To avoid conflicts between the Proposed Order and the State consent decrees, the Commission has agreed to extend the time for divesting particular assets if all of the following conditions are satisfied: (1) Respondents have fully complied with the Proposed Order; (2) Respondents submit a complete application in support of the divestiture of the assets and businesses to be divested; (3) the Commission has in fact approved a divestiture; but (4) Respondents have certified to the Commission within ten days after the Commission's approval of a divestiture that a State has not approved that divestiture. If these conditions are satisfied, the Commission will not appoint a trustee or impose penalties for an additional sixty days, in order to allow Respondents either to satisfy the State's concerns or to produce an acquirer acceptable to the Commission and the State.
Sections IV and V of the Proposed Order are intended to preserve competition in gasoline marketing in the Northeast and Mid-Atlantic by requiring Respondents to divest to an acquirer approved by the Commission all retail gasoline stations owned by Exxon (or leased by Exxon from another person) in Maine, Massachusetts, New Hampshire, Vermont, Rhode Island, Connecticut, and New York (Proposed Order ¶ IV.A), and to assign to the acquirer of those stations all dealer leases and franchise agreements and all supply contracts with branded jobbers (¶ IV.B). The Proposed Order defines “Existing Lessee Agreements” and “Existing Supply Agreements” broadly, to include the totality of the relationship between Respondents and the dealers and distributors to be assigned.
To effectuate the divestiture of stations and assignment of franchise agreements, Respondents shall enter into an agreement with the acquirer under which Respondents shall allow the acquirer to use the Exxon or Mobil name, as the case may be, for up to 10 years (with the possibility of further use of the name by mutual agreement thereafter) (¶¶ IV.C, V.C). Pursuant to that agreement, the acquirer will have the exclusive right to use the Exxon or Mobil name, as the case may be, in connection with the sale of branded gasoline and diesel fuel in these states, and will have the right to accept Exxon or Mobil credit cards and to sell other Exxon or Mobil branded products (
It is the Commission's contemplation that the acquirers will seek to transition the existing Exxon and Mobil networks to their own brands.
The acquirer will nonetheless be allowed to continue to offer the Exxon or Mobil name, as the case may be, to dealers and jobbers in order to allow the acquirer to preserve the network to the greatest extent feasible and to comply with the requirements of the Petroleum Marketing Practices Act, 15 U.S.C. 2801
To effectuate the divestiture and allow the acquirers an opportunity to
Respondents' obligations to preserve the assets to be divested and assigned includes the obligation to maintain the relationships with dealers and jobbers pending divestiture or assignment. Respondents have agreed to meet this obligation by, among other things, establishing a fund of $30 million to be paid to distributors who accept assignment of their supply agreements to the acquirer. The terms of that incentive program are set forth in Appendix A to the Proposed Order.
To remedy the reduction in competition in the five metropolitan areas in Texas alleged in Count II of the Complaint, Paragraph VI of the Proposed Order requires Respondents to divest and assign Mobil's marketing businesses in those five metropolitan areas. Mobil's marketing assets in those metropolitan areas include interests of Mobil in partnerships with TETCO Inc. and Southland Corp. The Proposed Order requires that Respondents divest Mobil's interest in its partnership with TETCO to TETCO or to another acquirer approved by the Commission, in either event only in a manner approved by the Commission. The Proposed Order also requires Respondents to assign their Existing Supply Agreements to Assignees approved by the Commission, on the same terms as discussed with regard to Northeastern and Mid-Atlantic marketing, Part IV.B above. Respondents will divest approximately 10 owned or leased Mobil stores and assign supply agreements for Mobil's distributor-supplied stores in Texas.
To remedy the reduction in competition in the marketing of gasoline in Arizona alleged in Count III of the Complaint, Paragraph XI of the Proposed Order requires Exxon to surrender its right to reacquire stores sold to Tosco.
To remedy the reduction in competition in the refining and marketing of CARB gasoline and navy jet fuel alleged in Counts IV and V of the Complaint, Paragraph II of the Proposed Order requires Respondents to divest Exxon's Benicia refinery and Exxon's owned gas stations in California, and to assign Exxon's lessee contracts and jobber supply contracts in California to an acquirer approved by the Commission. (¶¶ II.A, II.B) The divestiture of Exxon's Benicia refinery, with Exxon's California marketing, will not significantly reduce the amount of gasoline available to non-integrated marketers, since the refinery likely will continue to produce that gasoline and need outlets for its sale. Respondents will divest approximately 85 owned or leased Exxon stores and assign supply agreements for approximately 275 additional stores in California.
As part of its divestiture of the refinery, Respondents shall (at the acquirer's option) enter into a supply contract with the acquirer for a ratable quantity of Alaska North Slope (“ANS”) crude oil up to 100 thousand barrels per day (an amount equivalent to the refinery's historic usage). Exxon is one of the three principal producers of ANS crude oil (the other two are BP Amoco and ARCO).
The divestiture and assignment of the Exxon stations is generally under the same terms as described regarding the Northeast and Mid-Atlantic, see Section IV.B above, except that in four PMSAs (San Francisco, Oakland, San Jose and Santa Rosa) Respondents will terminate their dealers' contracts and divest the real estate to the acquirer without authorizing the acquirer to use the Exxon name. Because Mobil does not market branded gasoline in these PMSAs, Exxon can effectuate a “market withdrawal” in these MSAs under the PMPA, 15 U.S.C. 2801
In considering an application to divest and assign Exxon's California refining and marketing businesses to an acquirer, the Commission will consider the acquirer's ability and incentive to invest and compete in the businesses in which Exxon was engaged in California. The Commission will consider,
To remedy the reduction of competition in terminaling of light petroleum products in metropolitan Boston and Washington, Paragraphs VII and VIII require Respondents to divest Mobil's East Boston, Massachusetts, and Manassas, Virginia, light petroleum products terminals, thereby eliminating the effect of the merger in these markets.
To remedy the reduction of competition in terminaling of light petroleum products in metropolitan Norfolk, Virginia, Paragraph IX requires Respondents to continue to offer TransMontaigne access to Mobil's wharf on the same terms as have been offered historically, for as long as Respondents own the wharf.
To remedy the reduction of competition in transportation of light petroleum products to the inland Southeast, the Proposed Order requires Respondents to divest either Exxon's interest in Plantation or Mobil's interest in Colonial, and, pending divestiture, not to exercise their voting rights in connection with ownership or board representation on Colonial, thereby eliminating the effect of this merger in this market.
To remedy the reduction of competition in transportation of crude oil from the Alaska North Slope to Valdez, Alaska, and intermediate points, Paragraph X of the Proposed Order requires Respondents to divest Mobil's interest in TAPS (including Mobil's interest in terminal storage at Valdez and, at the acquirer's option, Mobil's interest in the Prince William Sound Oil Spill Response Corporation), thereby eliminating the effect of this merger in this market.
To remedy the reduction in competition in the importation, terminaling and marketing of light petroleum products in Guam, Paragraph III of the Proposed Order requires Respondents to divest Exxon's terminal and marketing in Guam. Essentially all of Exxon's gasoline marketing in Guam
The Proposed Order requires Respondents to relinquish control of an amount of base oil equivalent to the amount controlled by Mobil, in order to remedy the effect of combining Exxon's and Mobil's base oil production.
By changing Mobil's contract with Valero and entering into a Gulf off-take agreement, Mobil's share of the base oil market will effectively be given to Valero and some new entrant(s) in the base oil market or other suitable acquirers. The status quo in the base oil market will be maintained.
If Respondents do not offer the aforementioned terms to Valero within six months and do not enter into base oil supply contracts with suitable entities within nine months, they must divest Mobil's Beaumont, Texas refinery.
To remedy the effects of the merger in the market for jet turbine oil, the Proposed Order requires Respondents to divest Exxon's jet turbine oil business. The Proposed Order defines Exxon's jet turbine oil business, which must be divested, to include, among other things, an exclusive, perpetual license to use identified Exxon patents in the field of jet turbine oil, other intellectual property, research and testing equipment, and Exxon's jet turbine oil manufacturing facility at Bayway, New Jersey.
The Proposed Order has been placed on the public record for sixty (60) days for receipt of comments by interested persons. The Commission, pursuant to a change in its Rules of Practice, has also issued its Complaint in this matter, as well as the Order to Hold Separate. Comments received during this sixty day comment period will become part of the public record. After sixty days, the Commission will again review the Proposed Order and the comments received and will decide whether it should withdraw from the Proposed Order or make final the agreement's Proposed Order.
By accepting the Proposed Order subject to final approval, the Commission anticipates that the competitive problems alleged in the complaint will be resolved. The purpose of this analysis is to invite public comment on the Proposed Order, including the proposed divestitures, to aid the Commission in its determination of whether it should make final the Proposed Order contained in the agreement. This analysis is not intended to constitute an official interpretation of the Proposed Order, nor is it intended to modify the terms of the Proposed Order in any way.
By direction of the Commission.
The Federal Trade Commission has approved a proposed settlement of charges that the Exxon Corporation's acquisition of the Mobil Corporation would violate the antitrust laws. We write to explain the reasons for our decision to approve a settlement that allows the merger to occur, and to ensure that the Commission's action in this matter is fully understood.
The proposed merger between Exxon and Mobil involves the second-and fourth-largest vertically integrated oil companies in the world and the two largest headquartered in the United States, with the acquired assets valued at about $80 billion. We emphasize, however, that Commission approval in this matter does not indicate that continuing trends toward undue and unjustified concentration will be countenanced by this agency in the oil industry or elsewhere in the United States economy.
The proposed merger has significant competitive effects in seven different product markets. Because these were markets where competition was likely to be affected adversely, the Commission has required extensive restructuring. The details of the divestitures and other remedial provisions designed to address those competitive problems are summarized in the Analysis to Aid Public Comment. We touch here only on the most significant reasons why a merger between such large companies that have been direct competitors in some markets is allowed to occur at all.
1. About 60 percent of the assets of the merged firms are located outside the United States. Competitive effects in foreign countries have been reviewed by antitrust authorities abroad and the merger has been approved by those reviewing authorities with some restructurings.
2. In the United States, the most important overlaps involve gasoline marketing in states along the Atlantic Coast, California, Texas and Guam, gasoline refining in California, and the production and sale of paraffinic base oil, an ingredient in motor oil, throughout the United States. These overlaps amount to only about 3 percent of the merged assets.
3. Where there are significant competitive overlaps, the companies have consented to substantial restructuring of the deal, including the
4. While there has been a significant trend toward concentration in the oil industry, in the world and in the United States, and that trend will continue to receive our attention, it remains true that in the United States there are still at least a dozen remaining oil companies, though some are much smaller than others, and some are more regional than national. After the proposed Exxon-Mobil merger, the top four firms in the United States will account for about 42% of refining capacity and gasoline sales, a level of concentration that is not ordinarily a subject of concern in antitrust enforcement. In regional and local markets, likely anticompetitive effects are more pronounced, but those are addressed by the proposed order.
5. The Commission has assured itself not only that restructuring will occur, but that there are companies ready, willing and able to acquire divested assets and to be effective competitors. When the time comes to approve or disapprove buyers, the Commission will treat as a major concern the effect of divestitures on the welfare of station owners and employees. Also, the Commission will insist that the buyers of divested assets are sensitive to the role of independent station owners and lessees in continuing to play an important role in preserving competition in the retail sector of the gasoline market.
Increasing concentration in the oil industry may simply reflect the needs of firms competing in a global market. With the recent mergers in the industry however, concentration has significantly increased. Accordingly the Commission has been demanding in its requirements for restructuring this transaction, and will review any future proposed mergers in this industry with special concern.
We intend to ensure that competition, and the welfare of consumers, is protected. As with our recent enforcement actions, the Commission will assess the effectiveness of the remedies in this case in determining whether settlement, instead of litigation, would be appropriate in future transactions within this industry.
Finally, we offer a brief response to the concurring statement of our colleague, Commissioner Orson Swindle.
1. Commissioner Swindle assumes efficiencies in exploration and production outside the United States. That may be correct, but we are unwilling to assume the existence of efficiencies in markets that the Commission did not fully investigate.
2. Relevant geographic market in which anticompetitive effects might be measured was pleaded in the complaint as ranging from states to metropolitan areas to smaller areas within metropolitan areas. Commissioner Swindle would prefer to limit the pleading to metropolitan areas. As the Analysis to Aid Public Comment indicates, there is some evidence of coordinated action in parts of metropolitan areas (usually termed “price zones”), and there is precedent in this industry for pleading geographic markets as statewide.
3. Finally, Commissioner Swindle would limit any finding of anticompetitive effects to highly concentrated markets. It is true that in such markets, mergers of significant size may be presumed to lead to anticompetitive effects. But that does not mean the effect of mergers in less concentrated markets should be ignored. On the contrary, there is considerable judicial precedent for finding violations in moderately concentrated markets.
In this matter, the Commission has investigated the proposed $80 billion merger between Exxon Corporation (“Exxon”) and Mobil Corporation (“Mobil”). The proposed merger would create the largest privately owned oil company in the world, with both Exxon and Mobil having extensive operations in terms of exploration, production, refining, pipelines, terminal operations, wholesaling, and retailing. The Commission has accepted for public comment a consent agreement to resolve complaint allegations with regard to a number of markets in which Exxon and Mobil have overlapping operations.
Of the great many markets that are addressed in the complaint and proposed consent agreement, I dissent only from the provisions concerning the wholesaling and retailing of gasoline in markets that would be only moderately concentrated after the merger. The proposed merger between Exxon and Mobil is not likely to lead to consumer harm in the form of higher prices for gasoline in these markets because of the difficulties that oil companies face in coordinating their prices in these markets. Unlike my colleagues, I therefore would not require that Exxon and Mobil divest or assign their retail gasoline stations located in these markets.
The proposed merger would reunite two parts of the Standard Oil Trust. Exxon is the successor to Standard Oil of New Jersey, and Mobil is the successor to Standard Oil of New York. At the turn of the last century, the Standard Oil Trust controlled about 90% of all refining of oil and other petroleum products in the United States. See
The Commission has conducted an extensive and thorough investigation of the economic effects of the proposed merger between Exxon and Mobil. The Commission has alleged that the proposed merger would raise competitive concerns in specific refinery, pipeline, terminal, wholesale, and retail gas station markets in which Exxon and Mobil have competing operations. The proposed relief that the Commission has obtained to address these competitive concerns is comprehensive and extensive.
The proposed consent order specifically would require the merged firm to divest up to about $2 billion (as estimated by the parties) out of its $80 billion in assets. However, even though $2 billion in divestitures is a substantial amount, the fact that the amount is a relatively small portion of the total assets involved underscores for me a vital point—the proposed merger between Exxon and Mobil appears to be, in large part, a benefit (or at least not a detriment) to competition and consumers.
In particular, the proposed merger may allow Exxon and Mobil to realize efficiencies in exploration and production without creating any competitive concerns. Following the merger, the combined firm will own only about 1% of the world's oil reserves and produce only about 3% of the world's oil. By contrast, the national oil companies (such as Saudi Arabia's Aramco, Venezuela's PdVSA, and Mexico's PEMEX) collectively own 90% of the world's oil reserves and produce about 70% of the world's oil. By merging, Exxon and Mobil thus may become a more effective competitor in oil exploration and production, thereby benefitting American consumers and the American economy.
I want to provide one caveat about Commission law enforcement in the oil industry. The oil industry is undergoing and may continue to undergo tremendous restructuring, including mergers between large oil companies. In analyzing the competitive effects of these mergers, the Commission, of course, applies the standards set forth in the
The complaint alleges that the merger between Exxon and Mobil may substantially lessen competition for the wholesaling and retailing of gasoline in many and various markets. Specifically, the complaint defines as a relevant geographic market each of the States from Virginia to Maine, “smaller areas” within those states including particular metropolitan areas, and even “smaller areas” within those metropolitan areas.¶¶s 17a, 18, 31, and 32 of the Complaint. It also defines as relevant geographic markets five metropolitan areas in Texas (Austin, Bryan/College Station, Dallas, Houston, and San Antonio), and “smaller areas” contained within those metropolitan areas. ¶¶s 17b, 19, 33, and 34 of the Complaint. The complaint further defines Arizona and “smaller areas” within Arizona as relevant geographic markets.¶¶s 17c, 21, 35, and 36 of the Complaint.
In analyzing the competitive effects of a merger, it is critical to identify the proper geographic markets. As explained above, the Commission has alleged that the proper geographic markets here include everything from entire states to metropolitan areas within these states to “smaller areas” within these metropolitan areas, which presumably include counties, cities, towns, townships, price zones, etc. A geographic market is “a region such that a hypothetical monopolist that was the only present or future producer of the relevant product at locations in that region would profitably impose at least a ‘small but significant and non-transitory increase in price.’ ” Horizontal Merger Guidelines at 1.21.
Rather than very large geographic areas (
The basic theory underlying the complaint is that so-called major brands (including Exxon, Mobil, Shell/Texaco, BP/Amoco, and Sunoco) currently price as an oligopoly. Major brands allegedly observe the gasoline prices that other major brands are charging at their retail locations in specific areas, known as “price zones.” Armed with this information, major brands purportedly adjust their prices only in that particular price zone so that the resulting retail price for their brand of gasoline is in line with those of other major brands. Because major brands determine their gasoline prices based on the prices charged by other major brands and not exclusively on cost, major brands supposedly can and do find it profitable to increase their gasoline prices. Allowing Exxon and Mobil to merge, it is theorized, would reduce the number of major brands, thereby purportedly making it even easier to coordinate and maintain higher gasoline prices.
I have reason to believe that the proposed merger between Exxon and Mobil may substantially lessen competition in wholesale and retail gasoline in highly concentrated markets,
In the recent past, the Commission has challenged mergers that would significantly increase concentration in highly concentrated gasoline markets. In 1998, the Commission alleged that a joint venture may substantially lessen competition where it would have significantly increased concentration in the highly concentrated markets for wholesaling and retailing of gasoline in San Diego County, California, and on Oahu, Hawaii. Shell Oil Co. In 1999, the Commission similarly alleged that a merger between British Petroleum and Amoco may substantially lessen competition where it would have significantly increased concentration in twenty-five highly concentrated markets
In this case, the complaint alleges that the merger between Exxon and Mobil would significantly increase concentration in twenty highly concentrated wholesale and retail gasoline markets—nineteen markets in the Northeastern United States and one in Texas.
In addition to alleging that the proposed merger may substantially lessen competition in highly concentrated markets for the wholesaling and retailing of gasoline, the majority, however, has also alleged that it is likely to cause competitive harm in markets that would be only moderately concentrated. I disagree.
Specifically, I do not support the complaint allegations that the proposed merger between Exxon and Mobil may substantially lessen competition in twenty-three wholesale and retail gasoline markets that would be only moderately concentrated after the merger—eighteen markets in the Northeastern United States, four markets in Texas, and one market in Arizona.
I do not find the Commission's theory that major brands have coordinated their gasoline prices in these moderately concentrated markets
I do not think that it is unreasonable to conclude that gasoline prices might be coordinated in markets that would be moderately concentrated. However, I think that the better view of the evidence is that such coordination is not occurring and is not likely to occur following the merger. I consequently dissent from the complaint allegations with regard to the wholesale and retail gasoline markets in the Northeast, Texas, and Arizona that would be moderately concentrated, and I would not require the divestiture and assignment of retail gasoline stations located in those markets.
With regard to the remaining complaint allegations relating to refining, pipeline, and terminal markets, I support the allegations with regard to each of these markets. However, a brief treatment of two of these markets is warranted. I am not persuaded that a full trial on the merits would demonstrate that the proposed merger may substantially lessen competition in the United States and Canadian market for refining paraffinic base oil, ¶¶ s 51 and 52 of the Complaint, or in the West Coast market for refining CARB gasoline. ¶¶ s 37 and 38 of the Complaint. The information that the Commission staff has compiled during their extensive and thorough investigation, however, persuades me that there is at least “reason to believe” that the proposed merger may substantially lessen competition in these two markets. Because this showing is enough to meet the applicable legal standard at the time of
The proposed relief appears to be necessary and appropriate to address the complaint allegations in the refining, pipeline, and terminal markets. In my view, the Commission's staff and the merging parties have worked diligently and creatively to craft relief to remedy the competitive concerns in these markets. However, given the extraordinary complexity of the divestitures and other relief negotiated, I welcome public comments addressing whether the order would fulfill its remedial purpose without causing unintended adverse effects on competition or consumers. In particular, I would be interested in public comment on whether the merging parties should be required to divest the Exxon refinery in Benicia, California, and the Exxon retail gasoline stations in California to a single buyer. From a purely economic basis, there seems to be little logic in forcing the divestiture of the refinery and the retail stations to a single buyer.
The General Services Administration (GSA) has prepared a Record of Decision as the final document in the Environmental Impact Statement process for the renovation of the Tecate Port of Entry, Tecate, California. This project is designed to relocate the commercial operations, improve the working conditions for the U.S. Customs Service and U.S. Immigration and Naturalization Service, and improve the water systems on the port. For a copy of the Record of Decision contact: General Services Administration, 450 Golden Gate, Portfolio Division, San Francisco, California 94102, Attn: Rosanne Nieto, Phone: (415) 522-3490.
In compliance with the requirement of Section 3506 (c) (2) (A) of the Paperwork Reduction Act of 1995, the Center for Disease Control and Prevention is providing opportunity for public comment on proposed data collection projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques for other forms of information technology. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
1. PHS Supplements to the Application for Federal Assistance—SF-424 (0920-0428)—Extension. The Centers for Disease Control and Prevention (CDC) is requesting a three-year extension for continued use of the Supplements to the Request for Federal Assistance Application (SF-424). The Checklist, Program Narrative, and the Public Health System Impact Statement (third party notification) (PHSIS) are a part of the standard application for State and local governments and for private non-profit and for-profit organizations when applying for financial assistance from PHS grant programs. The Checklist assists applicants to ensure that they have included all required information necessary to process the application. The Checklist data helps to reduce the time required to process and review grant applications, expediting the issuance of grant awards. The PHSIS Third Party Notification Form is used to inform State and local health agencies of community-based proposals submitted by non-governmental applicants for Federal funding.
The total annual cost to the respondents is $1,184,452.
In compliance with the requirement of Section 3506 (c)(2)(A) of the Paperwork reduction Act of 1995, the Center for Disease Control and Prevention is providing opportunity for public comment on proposed data collection projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance
1. Preventive Health and Health Services Block Grant, Annual Application and Reports (0920-0106)—Renewal—The National Center for Chronic Disease Prevention and Health Promotion—In 1994, the Office of Management and Budget approved the collection of information provided in the grant applications and annual reports for the Preventive Health and Health Services Block Grant (0920-0106). This approval expires on November 30, 2000. CDC is requesting an extension of OMB clearance for this legislatively mandated information collection until November 30, 2001. The extension is limited to one year to allow for the development and adherence to
This information collected through the applications from the official State health agencies is required from section 1905 of the Public Health Service Act. There is no change in the proposed information collection from previous years. The information collected from the annual reports is required by section 1906, specifically the requirement for uniform data sets matching the uses of funds. The total cost to all respondents is $137,250, estimated at $25/burden hour.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written comments on the collection of information by March 20, 2000.
Submit written comments on the collection of information to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All comments should be identified with the docket number found in brackets in the heading of this document.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 521(a) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360k(a)) provides that no State or local government may establish, or continue in effect, any requirement with respect to a medical device that is different from, or in addition to, any Federal requirement applicable to the device under the act. Under section 521(b) of the act, following receipt of a written application from the State or local government involved, FDA may exempt from preemption a requirement that is more stringent than the Federal requirement, or that is necessitated by compelling local conditions and compliance with the requirement would not cause the device to be in violation of any portion of any requirement under the act. Exemptions are granted by regulation issued after notice and opportunity for an oral hearing.
The regulations in 21 CFR 808.20 require a State or local government that is seeking an exemption from preemption to submit an application to FDA. The application must include a copy of the State or local requirement, as well as information about its interpretation and application, and a statement as to why the applicant believes that the requirement qualifies for exemption from preemption under the act. FDA will use the information in the application to determine whether the requirement meets the criteria for exemption in the act and whether granting an exemption would be in the interest of the public health.
In addition, 21 CFR 808.25 provides that an interested person may request a hearing on an application by submitting a letter to FDA following the publication by FDA of a proposed response to the application.
FDA estimates the burden of this collection of information as follows:
FDA based its estimates of the number of submissions expected in the future contained in Table 1 of this document on the number of submissions submitted in the last 3 years and on the number of inquiries received indicating that applications would be submitted in the next year. FDA based its estimates of the time required to prepare submissions on discussions with those who have prepared submissions in the last 3 years.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Quality Mammography Standards; Lay Summaries for Patients” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Record Retention Requirements for the Soy Protein/CHD Health Claim” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Medical Device Recall Authority” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Medical Devices; Humanitarian Use Devices” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “New Drug and Biological Drug Products; Evidence Needed to Demonstrate Efficacy of New Drugs for Use Against lethal or Permanently Disabling Toxic Substances When Efficacy Studies in Humans Ethically Cannot Be Conducted” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In the
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), announcement is made of the following National Advisory body scheduled to meet during the month of February 2000.
The meeting is open to the public.
Anyone requiring information regarding the Committee should contact Peter C. van Dyck, M.D., M.P.H., Executive Secretary, Advisory Committee on Infant Mortality, Health Resources and Services Administration, Room 18-05, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, Telephone (301) 443-2170.
Individuals who are interested in attending any portion of the meeting or who have questions regarding the meeting should contact Ms. Kerry P. Nesseler, Health Resources and Services Administration, Maternal and Child Health Bureau, Telephone (301) 443-2170.
Agenda items are subject to change as priorities dictate.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), announcement is made of the following National Advisory body scheduled to meet during the month of February 2000.
The meeting is open to the public.
Anyone requiring information regarding the subject Council should contact Judy Rodgers, Migrant Health Program, staff support to the National Advisory Council on Migrant Health, Bureau of Primary Health Care, Health Resources and Services Administration, 4350 East-West Highway, Bethesda, Maryland 20814, Telephone (301) 594-4304.
Agenda items are subject to change as priorities indicate.
Substance Abuse and Mental Health Services Administration, HHS.
Notice of Funding Availability.
The Substance Abuse and Mental Health Services Administration (SAMHSA) Center for Substance Abuse Treatment (CSAT) announces the availability of FY 2000 funds for grants for the following activity. This activity is discussed in more detail under Section 3 of this notice. This notice is not a complete description of the activity; potential applicants
The actual amount available for awards and their allocation may vary, depending on unanticipated program requirements and the number and quality of applications received. FY 2000 funds for the activity discussed in this announcement were appropriated by the Congress under Public Law No. 106-113. SAMHSA's policies and procedures for peer review and Advisory Council review of grant and cooperative agreement applications
The Public Health Service (PHS) is committed to achieving the health promotion and disease prevention objectives of Healthy People 2000, a PHS-led national activity for setting priority areas. The SAMHSA Centers' substance abuse and mental health services activities address issues related to Healthy People 2000 objectives of Mental Health and Mental Disorders; Alcohol and Other Drugs; Clinical Preventive Services; HIV Infection; and Surveillance and Data Systems. Potential applicants may obtain a copy of Healthy People 2000 (Full Report: Stock No. 017-001-00474-0) or Summary Report: Stock No. 017-001-00473-1) through the Superintendent of Documents, Government Printing Office, Washington, DC 20402-9325 (Telephone: 202-512-1800).
SAMHSA will publish additional notices of available funding opportunities for FY 2000 in subsequent issues of the
A specially targeted HIV Targeted Capacity announcement will be published at a later time.
When requesting an application kit, the applicant must specify the particular activity for which detailed information is desired. This is to ensure receipt of all necessary forms and information, including any specific program review and award criteria.
The PHS 5161-1 application form and the full text of the activity described in Section 4 are also available electronically via SAMHSA's World Wide Web Home Page (address: http://www.samhsa.gov).
Competing applications must be received by the indicated receipt date to be accepted for review. An application received after the deadline may only be accepted if it carries a legible proof-of-mailing date assigned by the carrier and that date is not later than one week prior to the deadline date. Private metered postmarks are not acceptable as proof of timely mailing.
Applications received after the deadline date are subject to assignment to the next review cycle. Applications sent to an address other than the address specified above will be returned to the applicant without review.
Requests for activity-specific technical information should be directed to the program contact person identified for the activity covered by this notice (see Section 3).
Requests for information concerning business management issues should be directed to the grants management contact person identified for the activity covered by this notice (see Section 3).
SAMHSA's mission within the Nation's health system is to improve the quality and availability of prevention, early intervention, treatment, and rehabilitation services for substance abuse and mental illnesses, including co-occurring disorders, in order to improve health and reduce illness, death, disability, and cost to society.
Reinventing government, with its emphases on redefining the role of Federal agencies and on improving customer service, has provided SAMHSA with a welcome opportunity to examine carefully its programs and activities. As a result of that process, SAMHSA moved assertively to create a renewed and strategic emphasis on using its resources to generate knowledge about ways to improve the prevention and treatment of substance abuse and mental illness and to work with State and local governments as well as providers, families, and consumers to effectively use that knowledge in everyday practice.
Competing applications requesting funding under the specific project activity in Section 3 will be reviewed for technical merit in accordance with established PHS/SAMHSA peer review procedures. Review criteria that will be used by the peer review groups are specified in the application guidance material.
Applications will be considered for funding on the basis of their overall technical merit as determined through the peer review group and the appropriate National Advisory Council review process. Availability of funds will also be an award criteria. Additional award criteria specific to the programmatic activity may be included in the application guidance materials.
Grants to Expand Substance Abuse Treatment Capacity in Targeted Areas of Need (Short Title: Targeted Capacity Expansion, number PA 00-001).
• Application Deadline: The initial receipt date is April 26, 2000. Thereafter, applications will be received three times per year, on September 10, January 10, and May 10.
• Purpose: The Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Treatment (CSAT) announces the availability of funds for grants to expand substance abuse treatment capacity in targeted areas for a targeted response to treatment capacity problems and/or emerging trends. This program is designed to address gaps in treatment capacity by supporting rapid and strategic responses to demands for substance abuse (including alcohol and drug) treatment services in communities with serious, emerging drug problems as well as communities with innovative solutions to unmet needs. This Program Announcement (PA) is a reissuance (with revisions) of a prior Guidance for Applicants (GFA) by the same title, “Targeted Capacity Expansion,” GFA No. TI 99-002.
• Eligible Applicants: Only units of local (cities, towns, counties) governments and Indian Tribes and tribal organizations (as defined in the Indian Self-Determination Act—25 U.S.C., section 450b) are eligible to apply. States receive substantial funding for substance abuse treatment services via the Substance Abuse Prevention and Treatment (SAPT) Block Grant. SAMHSA/CSAT is trying to target specific local needs that address national treatment priorities. Eligibility is restricted to local governmental entities. It is required, however, that applicants coordinate with their Single State Agency (SSA) for Alcohol and Drug Abuse. While SAMHSA recognizes the role of State governments in addressing substance abuse issues, eligibility is being limited in recognition of the primacy of local governments'
• Amount: Up to $30.0 million will be available to support awards under this program in FY 2000. Of this amount, approximately $22.1 million is available for general program applications from units of local government or Indian Tribes and tribal organizations. As specified in Congressional report language, up to $1.5 million is reserved for the Anchorage Southcentral Foundation; up to $1.5 million is reserved for the Yukon-Kuskokwim Health Corporation in Bethel, Alaska; up to $235,000 is reserved for the San Francisco Treatment on Demand Project; up to $200,000 is reserved for Center Point/Marin County Project; and up to $4.4 million is reserved for residential Pregnant and Post-Partum Women projects.
All applications requesting FY 2000 funding under the Targeted Capacity Expansion Program will be considered for funding on the basis of their overall technical merit as determined through the initial peer review and CSAT's National Advisory Council review processes. In addition to the criteria listed in the “Award Decision Criteria” section of the PA, special funding consideration is being given in FY 2000 to scored applications from units of local government that propose to work with community-based indigenous racial/ethnic providers because SAMHSA/CSAT experience and research have shown that cultural competency and an understanding of the client community increase access, retention, and positive treatment outcomes. SAMHSA/CSAT is committed to expanding the community's capacity to provide high-quality, comprehensive treatment services.
Period of Support: Support may be requested for a period of up to three (3) years.
•
• Program Contact: For questions concerning program issues, contact: Clifton Mitchell, Branch Chief, Treatment Systems Improvement Branch /Division of Practice and Systems Development, Center for Substance Abuse Treatment, Substance Abuse and Mental Health Services Administration, Rockwall II, Suite 740, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-8404.
For questions regarding grants management issues, contact: Peggy Jones, Grants Management Officer, Division of Grants Management, OPS, Substance Abuse and Mental Health Services Administration, Rockwall II, 6th Floor, 5600 Fishers Lane, Rockville, Maryland 20857; (301) 443-9666.
• Application kits are available from: National Clearinghouse for Alcohol and Drug Information (NCADI), P.O. Box 2345, Rockville, MD 20857-2345, Telephone: 1-800-729-6686.
The Public Health System Impact Statement (PHSIS) is intended to keep State and local health officials apprised of proposed health services grant and cooperative agreement applications submitted by community-based nongovernmental organizations within their jurisdictions.
Community-based nongovernmental service providers who are not transmitting their applications through the State must submit a PHSIS to the head(s) of the appropriate State and local health agencies in the area(s) to be affected not later than the pertinent receipt date for applications. This PHSIS consists of the following information:
a. A copy of the face page of the application (Standard form 424).
b. A summary of the project (PHSIS), not to exceed one page, which provides:
(1) A description of the population to be served.
(2) A summary of the services to be provided.
(3) A description of the coordination planned with the appropriate State or local health agencies.
State and local governments and Indian Tribal Authority applicants are not subject to the Public Health System Reporting Requirements.
Application guidance materials will specify if a particular FY 2000 activity is subject to the Public Health System Reporting Requirements.
The PHS strongly encourages all grant and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of a facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the PHS mission to protect and advance the physical and mental health of the American people.
Applications submitted in response to the FY 2000 activity listed above are subject to the intergovernmental review requirements of Executive Order 12372, as implemented through DHHS regulations at 45 CFR Part 100. E.O. 12372 sets up a system for State and local government review of applications for Federal financial assistance. Applicants (other than Federally recognized Indian tribal governments) should contact the State's Single Point of Contact (SPOC) as early as possible to alert them to the prospective application(s) and to receive any necessary instructions on the State's review process. For proposed projects serving more than one State, the applicant is advised to contact the SPOC of each affected State. A current listing of SPOCs is included in the application guidance materials. The SPOC should send any State review process recommendations directly to: Division of Extramural Activities, Policy, and Review, Substance Abuse and Mental Health Services Administration, Parklawn Building, Room 17-89,5600 Fishers Lane, Rockville, Maryland 20857.
The due date for State review process recommendations is no later than 60 days after the specified deadline date for the receipt of applications. SAMHSA does not guarantee to accommodate or explain SPOC comments that are received after the 60-day cut-off.
Pursuant to Public Law 92-463, notice is hereby given of the meeting of the Center for Mental Health Services (CMHS) National Advisory Council in January 2000.
All of this meeting will be open and will include a roll call, general announcements and a discussion of the mental health systems in Australia and New Zealand, school violence prevention program activities, consumer affairs, and
A summary of the meeting and a roster of Council members may be obtained from Ms. Patricia Gratton, Committee Management Officer, CMHS, Room 11C-26, Parklawn Building, Rockville, Maryland 20857, telephone (301) 443-7987.
Hilton Washington and Towers (1/21/2000), 1919 Connecticut Avenue, N.W., Washington, D.C. 20009.
Pursuant to Public Law 92-463, notice is hereby given of a meeting of the Center for Substance Abuse Treatment (CSAT) National Advisory Council to be held in February 2000. A portion of the meeting will be open and include discussion of the Center's policy issues and current administrative, legislative, and program developments. The Council will hear feature presentations by SAMHSA Administrator Nelba Chavez, CSAT Director H. Westley Clark, and Alan Leshner, Director of the National Institute on Drug Abuse. There will also be presentations on the National Treatment Plan, collaborations between researchers and practice, updates on buprenorphine and methadone, costs of treatment, cultural competency activities and alcohol in tribal communities.
If anyone needs special accommodations for persons with disabilities, please notify the Contact listed below.
The meeting will also include the review, discussion, and evaluation of grant applications. Therefore, a portion of the meeting will be closed to the public as determined by the SAMHSA Administrator, in accordance with Title 5 U.S.C. 552b(c)(3), (4), and (6) and 5 U.S.C. App. 2, section 10(d).
A summary of the meeting and roster of council members may be obtained from: Mrs. Marjorie Cashion, CSAT, National Advisory Council, Rockwall II Building, Suite 619, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone: (301) 443-8923.
Substantive program information may be obtained from the contact whose name and telephone number is listed below.
Geological Survey, Interior.
Notice of meeting.
Pursuant to Public Law 92-463, the EOS Land Processes DAAC will host a meeting of its Science Advisory Panel at the U.S. Geological Survey EROS Data Center near Sioux Falls, South Dakota. The Panel, comprised of scientists from academic and government institutions, will provide the management of the DAAC with advice and consultation on a broad range of scientific and technical topics relevant to the development and operation of DAAC systems and capabilities.
Topics to be reviewed and discussed by the Panel include: DAAC status reports on FY 1999 activities and plans for FY 2000 activities; Panel review of and recommendations on FY 2000 proposed activities; review of Landsat 7 and Terra mission status; discussions leading to recommendations on the DAAC's Operations, Engineering, Science, and User Services support programs; support Science and Instrument Team data product Quality Assurance activities; and plans to support EOS Land Product Validation efforts.
February 1-3, 2000, commencing at 8:30 am on February 1 and adjourning at 12:00 pm on February 3.
Mr. John Dwyer, EDC DAAC Project Scientist, EROS Data Center, Sioux Falls, South Dakota 57198 at (605) 594-6060.
Meetings of the EDC DAAC Science Advisory Panel are open to the public.
Bureau of Land Management, Interior.
Resource Advisory Council meeting locations and times.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972 (FACA), 5 U.S.C., the Department of the Interior, Bureau of Land Management (BLM) council meeting of the Upper Snake River District Resource Advisory Council (RAC) will be held as indicated below. The agenda for this two-day meeting will include a training session for members on the first day, and discussions on Standards and Guides Monitoring and Phosphate Leasing on the second day. All meetings are open to the public. The public may present written or oral comments to the council.
The next meeting will be held February 24-25, 2000 at the Best Western Hotel, 800 North Overland Avenue in Burley, Idaho. The meeting will start at 1 p.m. on February 24 for the RAC Training Session. The meeting will continue on February 25 at 8:30 a.m., with public comments scheduled from 8:40-9:10 a.m.
David Howell, Upper Snake River District, 1405 Hollipark Dr., Idaho Falls, ID 83401, (208) 524-7559.
The purpose of the Resource Advisory Council is to advise the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with the management of the of the public lands.
1. The plat of the survey of three islands in Five Lake, Township 139 North, Range 40 West, Fifth Principal Meridian, Minnesota, accepted January 6, 2000, will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on February 22, 2000. The tracts shown below describe the islands omitted from the original survey.
2. Tract No. 37 is firm land rising 2 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. The presence of numerous granite stones, several approaching 2
Tract No. 38 is firm land rising 10 to 12 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. Numerous granite stones, several approaching 2 ft. in diameter were located throughout the island and along the westerly and southerly shore of the island. Tree species consist of ash, basswood, birch, oak, spruce and pine, ranging in size from 4 to 20 inches in diameter. Several oaks and pines located near the center of the island were measured and found to be 15 to 20 inches in diameter, with a maximum age of 150+ years. The ground cover consists of alder, hazel and willow, along with native grasses.
Tract No. 39 is firm land rising 15 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. Tree species consist of ash, aspen, basswood, birch and oak, ranging in size from 6 to 20 inches in diameter, with a maximum age of 150+ years. The ground cover consists of alder, hazel and willow, along with a few native grasses along the southerly shore of the island.
3. The present water level of the lake compares favorably with that of the original meander line; therefore, the elevation and upland character these islands along with the depth and width of the lake between the adjacent upland and the island are considered evidence that the island did exist in 1858, the year Minnesota was admitted to the Union. The original survey in 1871 did not note the presence of these islands.
4. These islands are more than 50 percent upland in character within the interpretation of the Swamp and Overflow Act of September 28, 1850 (9 Stat. 519) as extended to the State of Minnesota under the Act of March 12, 1860 (12 Stat. 3). Therefore, these islands are held to be public land.
5. The survey was requested by the Assistant Field Manager, Division of Natural Resource Management, under the authority of Section 211 of FLPMA (43 U.S.C. 1721) and the Minnesota Public Lands Improvement Act of 1990, P.L. 101-442 (104 Stat. 1020).
6. Except for valid existing rights, these islands will not be subject to application, petition, location or selection under any public law until February 22, 2000.
7. Interested parties protesting the determination that these islands are public land of the United States, must present valid proof showing that the island in question did not exist at the time of statehood or that it was attached to the mainland at the time of the original survey. Such protests must be submitted in writing to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., February 22, 2000.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
1. The plat of the survey of an island in Island Lake, Township 47 North, Range 29 West, Fourth Principal Meridian, Minnesota, accepted on January 6, 2000, will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on February 22, 2000. The tract shown below describes the island omitted from the original survey.
T. 47 N. R. 29 W.
3. The present water level of the lake compares favorably with that of the original meander line; therefore, the elevation and upland character of the island along with the depth and width of the lake between the adjacent upland and the island are considered evidence that the island did exist in 1858, the year Minnesota was admitted to the Union. The original survey in 1872 did not note the presence of this island.
4. Tract No. 37 is more than 50 percent upland in character within the interpretation of the Swamp and Overflow Act of September 28, 1850 (9 Stat. 519) as extended to the State of Minnesota under the Act of March 12, 1860 (12 Stat. 3). Therefore, the island is held to be public land.
5. The survey was requested by the Assistant Field Manager, Division of Natural Resource Management, under the authority of Section 211 of FLPMA (43 U.S.C. 1721) and the Minnesota Public Lands Improvement Act of 1990, P.L. 101-442 (104 Stat. 1020).
6. Except for valid existing rights, this island will not be subject to application, petition, location or selection under any public law until February 22, 2000.
7. Interested parties protesting the determination that these islands are public land of the United States, must present valid proof showing that the island in question did not exist at the time of statehood or that it was attached to the mainland at the time of the original survey. Such protests must be submitted in writing to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., February 22, 2000.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
1. The plat of the survey of an island in Seretha Lake, Township 152 North, Range 27 West, Fifth Principal Meridian, Minnesota, accepted on January 6, 2000, will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on February 22, 2000. The tract shown below describe the island omitted from the original survey.
2. Tract No. 37 is firm land rising 15 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. Tree species consist of birch, cedar, fir and spruce, ranging in size from 3 to 20 inches in diameter. A White Birch, 20 inches in diameter, located near the center of the island was approximately 90+ years of age. The ground cover consists of alder, hazel, willow and native grasses on the southerly and easterly shore line.
3. The present water level of the lake compares favorably with that of the original meander line; therefore, the elevation and upland character of the island along with the depth and width of the lake between the adjacent upland and the island are considered evidence that the island did exist in 1858, the year Minnesota was admitted to the Union. The original survey in 1896 did not note the presence of this island.
4. Tract No. 37 is more than 50 percent upland in character within the interpretation of the Swamp and Overflow Act of September 28, 1850 (9 Stat. 519) as extended to the State of Minnesota under the Act of March 12, 1860 (12 Stat. 3). Therefore, the island is held to be public land.
5. The survey was requested by the Assistant Field Manager, Division of Natural Resource Management, under the authority of Section 211 of FLPMA (43 U.S.C. 1721) and the Minnesota Public Lands Improvement Act of 1990, P.L. 101-442 (104 Stat. 1020).
6. Except for valid existing rights, this island will not be subject to application, petition, location or selection under any public law until February 22, 2000.
7. Interested parties protesting the determination that these islands are public land of the United States, must present valid proof showing that the island in question did not exist at the time of statehood or that it was attached to the mainland at the time of the original survey. Such protests must be submitted in writing to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., February 22, 2000.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
1. The plat of the survey of an island in Jefferson Lake, Township 109 North, Range 24 West, Fifth Principal Meridian, Minnesota, accepted on January 6, 2000, will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on February 22, 2000. The tract shown below describes the island omitted from the original survey.
2. Tract No. 37 is firm land rising 8-10 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. Numerous small stones were located along the northerly and westerly sandy shore line of the island. Tree species consist of ash, basswood, cedar, elm, and oak, ranging in size from 8 to 20 inches in diameter, with a maximum age of 120+ years. The ground cover consists of hazel, willow and native grasses on the southerly and easterly shore line.
3. The present water level of the lake compares favorably with that of the original meander line; therefore, the elevation and upland character of the island along with the depth and width of the lake between the adjacent upland and the island are considered evidence that the island did exist in 1858, the year Minnesota was admitted to the Union. The original survey in 1855 did not note the presence of this island.
4. Tract No. 37 is more than 50 percent upland in character within the interpretation of the Swamp and Overflow Act of September 28, 1850 (9 Stat. 519) as extended to the State of Minnesota under the Act of March 12, 1860 (12 Stat. 3). Therefore, the island is held to be public land.
5. The survey was requested by the Assistant Field Manager, Division of Natural Resource Management, under the authority of Section 211 of FLPMA (43 U.S.C. 1721) and the Minnesota
6. Except for valid existing rights, this island will not be subject to application, petition, location or selection under any public law until February 22, 2000.
7. Interested parties protesting the determination that these islands are public land of the United States, must present valid proof showing that the island in question did not exist at the time of statehood or that it was attached to the mainland at the time of the original survey. Such protests must be submitted in writing to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., February 22, 2000.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
1. The plat of the survey of an island in Cedar Lake, Township 117 North, Range 30 West, Fifth Principal Meridian, Minnesota, accepted on January 6, 2000, will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on February 22, 2000. The tract shown below describes the island omitted from the original survey.
2. Tract No. 42 is firm land rising 10-15 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. Numerous stones were located along the northerly and westerly shore line and at the highest points of the island. Tree species consist of ash, basswood, cedar, cottonwood, elm, oak and willow, ranging in size from 3 to 20 inches in diameter, with a maximum age of 120+ years. The ground cover consists of hazel, willow, cattails and native grasses along the southerly shore line.
3. The present water level of the lake compares favorably with that of the lake at the time of the original survey; therefore, the elevation and upland character of the island along with the depth and width of the lake between the adjacent upland and the island are considered evidence that the island did exist in 1858, the year Minnesota was admitted to the Union. The original survey in 1857 did not note the presence of this island.
4. Tract No. 42 is more than 50 percent upland in character within the interpretation of the Swamp and Overflow Act of September 28, 1850 (9 Stat. 519) as extended to the State of Minnesota under the Act of March 12, 1860 (12 Stat. 3). Therefore, the island is held to be public land.
5. The survey was requested by the Assistant Field Manager, Division of Natural Resource Management, under the authority of Section 211 of FLPMA (43 U.S.C. 1721) and the Minnesota Public Lands Improvement Act of 1990, Public Law 101-442 (104 Stat. 1020).
6. Except for valid existing rights, this island will not be subject to application, petition, location or selection under any public law until February 22, 2000.
7. Interested parties protesting the determination that these islands are public land of the United States, must present valid proof showing that the island in question did not exist at the time of statehood or that it was attached to the mainland at the time of the original survey. Such protests must be submitted in writing to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., February 22, 2000.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
1. The plat of the survey of an island in Fox Lake, Township 59 North, Range 25 West, Fourth Principal Meridian, Minnesota, accepted on January 6, 2000, will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on February 22, 2000. The tract shown below describes the island omitted from the original survey.
2. Tract No. 37 is firm land rising 3-5 ft. above the ordinary high water mark. The soil has evolved from glacial till parent material and is similar to the soil found on the adjacent uplands. Numerous stones were located along the northerly and easterly shore of the island. Tree species consist of birch, cedar, fir and spruce, ranging in size from 3 to 15 inches in diameter, with a maximum age of 80+ years. The ground cover consists of alder, hazel, willow and native grasses on the southerly and westerly shore line.
Structures located on the island consist of an old log cabin, 14
3. The present water level of the lake compares favorably with that of the original meander line; therefore, the elevation and upland character of the island along with the depth and width of the lake between the adjacent upland and the island are considered evidence that the island did exist in 1858, the year Minnesota was admitted to the Union. The original survey in 1875 did not note the presence of this island.
4. Tract No. 37 is more than 50 percent upland in character within the interpretation of the Swamp and Overflow Act of September 28, 1850 (9 Stat. 519) as extended to the State of Minnesota under the Act of March 12, 1860 (12 Stat. 3). Therefore, the island is held to be public land.
5. The survey was requested by Edwin A. and Sheryl I. Olson, under the authority of Section 211 of FLPMA (43 U.S.C. 1721) and the Minnesota Public Lands Improvement Act of 1990, P.L. 101-442 (104 Stat. 1020).
6. Except for valid existing rights, this island will not be subject to application, petition, location or selection under any public law until February 22, 2000.
7. Interested parties protesting the determination that this island is public land of the United States, must present valid proof showing that the island did not exist at the time of statehood or that it was attached to the mainland at the time of the original survey. Such protests must be submitted in writing to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., February 22, 2000.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
National Park Service, Interior.
Record of Decision, General Management Plan and Environmental Impact Statement, Homestead National Monument of America, Nebraska.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969, as amended, and the regulations promulgated by the Council on Environmental Quality (40 CFR 1505.2), the Department of the Interior, National Park Service, has prepared a Record of Decision on the Final General Management Plan and Final Environmental Impact Statement for the Homestead National Monument of America in Gage County, Nebraska.
The Acting Regional Director, Midwest Region approved the Record of Decision, on December 22, 1999.
Superintendent, Homestead National Monument of America, 8523 W. State Highway 4, Beatrice, Nebraska 68310-6743, telephone 402-223-3514.
The National Park Service has prepared the Final General Management Plan/Abbreviated Final Environmental Impact Statement (FGMP/AFEIS) for Homestead National Monument of America, Nebraska. The FGMP/AFEIS proposes management direction for the park for the next 10-20 years and documents the anticipated effects of the selected action and other alternatives on the human environment, including natural and cultural resources. This Record of Decision is a concise statement of the decisions made, other alternatives considered, the basis for the decision, the environmentally preferable alternative, and the mitigating measures developed to avoid or minimize environmental harm.
After careful consideration of environmental impacts, costs, and comments from the public, agencies, and technical evaluations, the National Park Service recommends for implementation the selected action evaluated in the Final General Management Plan/Environmental Impact Statement.
The goal of the selected alternative, which was identified as Alternative C, Option 1 in the Final Environmental Impact Statement, is to significantly change the physical arrangement of facilities and operational functions of the monument. The alternative represents a comprehensive alteration to the monument's current operational form and to visitor orientation in order to fulfill the legislative requirements of the monument. With this selected action, the key monument facilities will be relocated to a location outside of the existing 100-year frequency flood hazard zone. A minor boundary expansion will be pursued to acquire land outside existing boundaries that would be necessary for the facilities. Management zones will provide guidance for managing specific areas for desired visitor experience and resource conditions (see p. 32 of the FGMP).
The selected action calls for the creation of a new ‘‘Homestead Heritage Center’’ to house the monument's collections, interpretive exhibits, theatre, public research facilities, and administrative offices. This new ‘‘Homestead Heritage Center’’ will be located on the eastern side of the monument.
The ‘‘Homestead Heritage Center’’ will require a separate research facility within the building to act as a repository for the monument's homestead records and other items of homesteading literature, as required by the monument's enabling legislation. In addition, the center will have a parking lot designed to accommodate 50 cars and 10 buses or campers.
The selected action also calls for the existing visitor center/museum to be modified and adaptively reused as an ‘‘Education Center’’. This center will serve as a location where students of all ages could engage in learning more about the homestead story. A ‘‘School of Traditional Homesteading Folk Arts’’ program will be established to give the public an opportunity to learn old homesteading folk crafts. In addition to a range of educational activities that will take place in this center, special events and interpretive programs will also be conducted here. Distance learning technology will also connect the center to schools near and far. The areas to the back of the present facility will be used to house maintenance functions. The remaining offices will be used by visiting instructors or modified to serve as classrooms. The exhibits presently in use will be removed and that area converted to classrooms. The existing parking lot appears to be suitable to meet the foreseeable needs of this facility.
In addition, the management prescriptions contained within the selected action will seek to promote the establishment of a ‘‘Homestead Heritage Parkway’’. This parkway concept is proposed to form an interpretive linkage between the monument, including the Freeman School, and the surrounding rural countryside and communities to highlight today's visible and tangible results of implementation of the Homestead Act. The principal interpretive and educational theme of the parkway will be agriculture. With comparisons made to modern farm operations. These stories will be communicated through the use of signs and traveler information radio broadcasts.
The creation of this parkway as one of the monument's interpretive tools will depend on voluntary partnerships with the local governments and landowners along the identified highway segment. It is important to note that the NPS is not recommending a formal federal designation for this parkway. The concept of the ‘‘Homestead Heritage Parkway’’ presumes the rerouting of a segment of State Highway 4 outside the monument's boundary. After this realignment has occurred, the abandoned segment of State Highway 4 will become an access road for the monument and for local residents. Existing truck and commuter traffic will be rerouted on a comparable replacement segment of State Highway 4 nearby. The ‘‘Homestead Heritage Parkway’’ will begin where the access road (the abandoned segment of State Highway 4) enters the eastern boundary of the monument and extend to the Freeman School. The NPS envisions the eventual and voluntary extension of the ‘‘Homestead Heritage Parkway’’ concept from the Freeman School west along the access road to where it rejoins State Highway 4. The NPS also endorses the parkway's extension to the east from the monument to the City of Beatrice (meeting at the junction of State Highways 136 and 4 in West Beatrice), however the NPS is not recommending any change to the currently designated speed limit for that segment. It is possible that a public biking and/or hiking path could be connected to the monument.
Alternative A is the no-action, or status quo, alternative. This alternative would have restricted the monument in achieving its mission; however, it does provide a baseline for comparison of the other alternatives. This alternative called for the continuation of current levels and patterns of National Park Service stewardship and management with regard to natural, historic, and cultural resources at the monument.
Each of the following action alternatives were designed to achieve all desired futures for the monument, including those related to natural, historic, and cultural resources enhancement and protection, and visitor experiences. The principle difference between alternatives is the location of the primary monument facilities.
Alternative B prescribed certain alterations to the existing pattern of facilities, stewardship, and management. The monument's natural, historic, and cultural resources would have remained generally as they are now. The existing monument facilities would have remained in their present locations but would have been flood-proofed to withstand a 100-year flood event.
Like the selected action Alternative C, Option 1, Alternative C, Option 2 proposed significant changes to the physical arrangement and operational functions of the monument. This alternative also represented comprehensive alterations to the homestead resources. The alternative also would have fulfilled the legislative requirements of the monument. Alternative C, Option 2 would have significantly changed the location of key monument facilities to a location outside the existing 100-year frequency flood hazard zone but within the existing monument boundary. It also proposed the creation of a new ‘‘Homestead Heritage Center’’ to house the monument's collections, interpretive displays, public research facilities, and administrative offices. The existing visitor center would have been adaptively reused as an ‘‘Education Center’’ for special events, programs, and educational opportunities. In addition, it proposed to form a linkage between the monument and the surrounding countryside and communities through the establishment of an approximately six mile ‘‘Homestead Heritage Parkway’’ which would highlight today's visible results of implementation of the Homestead Act.
The environmentally preferable alternative is defined as ‘‘the alternative or alternatives that will promote the national environmental policy as expressed in section 101 of the National Environmental Policy Act. Ordinarily, this means the alternative that causes least damage to the biological and physical environment; it also means the alternative that best protects, preserves, and enhances historic, cultural, and natural resources’’ (‘‘Forty Most Asked Questions Concerning Council on Environmental Quality's (CEQ) National Environmental Policy Act Regulations,’’ 1981).
The environmentally preferable alternative is the selected action, Alternative C, Option 1. This alternative best meets the full range of national environmental policy goals as stated in NEPA's section 101. The selected action (1) maximizes protection of natural and cultural resources while maintaining a wide range of neutral and beneficial uses of the environment without degradation; (2) maintains an environment that supports diversity and variety of individual choice; (3) achieves a balance between human population and resource use; and (4) improves resource sustainability.
The selected action removes the monument's threatened existing visitor center complex, with its associated resources, exhibits, and operational facilities, from its location within the 100-year floodplain of nearby Cub Creek. The removal of these resources and functions to a different yet nearby location also minimizes existing safety and resource concerns associated with the state highway crossing the monument. In addition, the selected action best minimizes impacts to and developmental incursions into the monument's natural resources (principally, its reconstructed tallgrass prairie) and minimizes impacts to and developmental incursions into the monument's cultural resources in the form of its historic original 1862 homestead tract. It also maximizes public and visitor safety by prescribing the relocation of a segment of the existing state highway to an alignment outside monument boundaries. This action will significantly reduce the volume and mix of traffic on State Highway 4, will improve the qualities of visitor safety and experience, and will result in a reduced physical intrusion into the monument's boundary.
All practicable measures to avoid or minimize environmental impacts that could result from implementation of the selected action have been identified and incorporated into the selected action. They are presented in detail in the FGMP/AFEIS. However, due to the programmatic nature of the general management plan, specific implementation projects will be reviewed as necessary for compliance with the National Environmental Policy Act, National Historic Preservation Act, and other applicable federal and state laws and regulations prior to project clearance and implementation. Specific measures to minimize environmental harm also will be included in implementation plans called for by the FGMP/AFEIS. These plans include, but are not limited to, resource management plans, land protection plans, historic structure reports, and schematic design documents.
The selected alternative best supports the park's purpose and significance, and accomplishes the statutory mission of the National Park Service to provide long-term protection of park resources while allowing for appropriate levels of visitor use and means of visitor enjoyment. The selected alternative also does the best job of addressing issues identified during public scoping while minimizing environmental harm. Other factors considered in the decision were public and resource benefits gained for the cost incurred and extensive public comment.
The NPS has taken a comprehensive approach to public involvement during the development of this GMP. To date, the NPS has issued two newsletters for the general public and conducted a series of public meetings. The NPS has consulted with state and local government officials, including the State Historic Preservation Office. American Indian groups with affiliations to the monument have received the newsletters and a copy of the draft plan for comment.
Newsletter No. 1 was mailed in December 1997. Newsletter No. 2 was distributed in March 1998. Nearly 600 newsletters were in each mailing. The series of public meetings were conducted in January 1998. Two meetings were held in Beatrice, Nebraska, near the monument and one in Lincoln, Nebraska, 40 miles away. Over 20 people attended the three meetings. In April 1998, an “open house,” was held at the Monument. Twenty-five individuals, park neighbors, government officials, and community members attended this
The GMP planning team contacted the Pawnee Tribe of Oklahoma in an attempt to identify tribal concerns relative to this GMP/EIS. In addition, comments were sought through extensive mailings of newsletters and media coverage. No response was received from the tribe. Because of the Pawnee's long-standing cultural affiliation with this area of Nebraska, the NPS will continue to keep the tribe informed of important stages of this planning process and of plans to implement the preferred alternative throughout the GMP planning process.
Over 600 news letters announcing the Draft General Management Plan and Environmental Impact Statement for Homestead National Monument of America were mailed May 4, 1999. More than 200 copies of the full draft document were distributed to agencies, organizations and individuals. The document was also made available to the general public at the Beatrice Public Library and at Homestead National Monument of America. The National Park Service conducted two public meetings in May 1999, one meeting was held at the Beatrice Public Library May 25 while the second meeting was held at the Charles H. Gere Library in Lincoln, Nebraska May 26. An additional public open house was held June 29, 1999 at Homestead National Monument of America to discuss the Draft General Management Plan/Environmental Impact Statement.
The Beatrice public meeting had 43 people in attendance; 14 people attended the Lincoln public meeting. One person attended the meeting held in June, at Homestead National Monument of America.
A 60-day review period (May 4, 1999 through July 10, 1999) was designated for receiving comments on the draft plan and EIS. Fifteen written comments were received. At the end of the review period, the comments were reviewed and substantive comments were identified. The Final General Management Plan (FGMP) and an Abbreviated Final Environmental Impact Statement (AFEIS) were made available to the public on November 21, 1999. The 30-day no action period required by NEPA regulations commenced on that date. Approximately 39 copies of the FGMP/AFEIS were distributed to agencies, local governments, organizations, persons who commented on the draft GMP, and others who requested the document. The FGMP/AFEIS contains a complete summary of the public involvement process and substantive comments received.
A notice of availability for the FGMP/AFEIS was published by the Environmental Protection Agency in the
The above factors and considerations justify the selection of the final plan, as described as Alternative C, Option 1, in the Final Environmental Impact Statement. The Final General Management Plan is hereby approved.
Notice is hereby given in accordance with the Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 770, 5 U.S.C. App. 1, Sec. 10), that the Acadia National Park Advisory Commission will hold a meeting on Monday, February 7, 2000.
The Commission was established pursuant to Public Law 99-420, Sec. 103. The purpose of the commission is to consult with the Secretary of the Interior, or his designee, on matters relating to the management and development of the park, including but not limited to the acquisition of lands and interests in lands (including conservation easements on islands) and termination of rights of use and occupancy.
The meeting will convene at park Headquarters, McFarland Hill, Bar Harbor, Maine, at 1:00PM to consider the following agenda:
The meeting is open to the public. Interested persons may make oral/written presentations to the Commission or file written statements. Such requests should be made to the Superintendent at least seven days prior to the meeting.
Further information concerning this meeting may be obtained from the Superintendent, Acadia National Park, P.O. Box 177, Bar Harbor, Maine 04609, tel: (207) 288-3338
United States International Trade Commission.
Scheduling of the final phase of an antidumping investigation.
The Commission hereby gives notice of the scheduling of the final phase of antidumping investigation No. 731-TA-856 (Final) under section 735(b) of the Tariff Act of 1930 (19 U.S.C. 1673d(b)) (the Act) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of less-than-fair-value imports from Russia of solid fertilizer grade ammonium nitrate, provided for in subheading 3102.30.00 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigation, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
January 7, 2000.
Karen Taylor (202-708-4101), Office of
In accordance with §§ 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Scheduling of full five-year reviews concerning the countervailing duty order and antidumping duty orders on stainless steel wire rod from Brazil, France, India, and Spain.
The Commission hereby gives notice of the scheduling of full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. § 1675(c)(5)) (the Act) to determine whether revocation of the countervailing duty order and the antidumping duty orders on stainless steel wire rod from Brazil, France, India, and Spain would be likely to lead to
January 11, 2000.
Valerie Newkirk (202-205-3190), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server
On October 1, 1999, the Commission determined that responses to its notice of institution of the subject five-year reviews were such that full reviews pursuant to section 751(c)(5) of the Act should proceed (64 F.R. 55962, October 15, 1999). A record of the Commissioners' votes, the Commission's statement on adequacy, and any individual Commissioner's statements will be available from the Office of the Secretary and at the Commission's web site.
Persons, including industrial users of the subject merchandise and, if the merchandise is sold at the retail level, representative consumer organizations, wishing to participate in these reviews as parties must file an entry of appearance with the Secretary to the Commission, as provided in section 201.11 of the Commission's rules, by 45 days after publication of this notice. A party that filed a notice of appearance following publication of the Commission's notice of institution of the reviews need not file an additional notice of appearance. The Secretary will maintain a public service list containing the names and addresses of all persons, or their representatives, who are parties to the reviews.
Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI gathered in these reviews available to authorized applicants under the APO issued in the reviews, provided that the application is made by 45 days after publication of this notice. Authorized applicants must represent interested parties, as defined by 19 U.S.C. § 1677(9), who are parties to the reviews. A party granted access to BPI following publication of the Commission's notice of institution of the reviews need not reapply for such access. A separate service list will be maintained by the Secretary for those parties authorized to receive BPI under the APO.
The prehearing staff report in the reviews will be placed in the nonpublic record on May 3, 2000, and a public version will be issued thereafter, pursuant to section 207.64 of the Commission's rules.
The Commission will hold a hearing in connection with the reviews beginning at 9:30 a.m. on May 23, 2000, at the U.S. International Trade Commission Building. Requests to appear at the hearing should be filed in writing with the Secretary to the Commission on or before May 16, 2000. A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference to be held at 9:30 a.m. on May 18, 2000, at the U.S. International Trade Commission Building. Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), 207.24, and 207.66 of the Commission's rules. Parties must submit any request to present a portion of their hearing testimony in camera no later than 7 days prior to the date of the hearing.
Each party to the reviews may submit a prehearing brief to the Commission. Prehearing briefs must conform with the provisions of section 207.65 of the Commission's rules; the deadline for filing is May 12, 2000. Parties may also file written testimony in connection with their presentation at the hearing, as provided in section 207.24 of the Commission's rules, and posthearing briefs, which must conform with the provisions of section 207.67 of the Commission's rules. The deadline for filing posthearing briefs is June 2, 2000; witness testimony must be filed no later than three days before the hearing. In addition, any person who has not entered an appearance as a party to the reviews may submit a written statement of information pertinent to the subject of the reviews on or before June 2, 2000. On June 23, 2000, the Commission will make available to parties all information on which they have not had an opportunity to comment. Parties may submit final comments on this information on or before June 27, 2000, but such final comments must not contain new factual information and must otherwise comply with section 207.68 of the Commission's rules. All written submissions must conform with the provisions of section 201.8 of the Commission's rules; any submissions that contain BPI must also conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's rules do not authorize filing of submissions with the Secretary by facsimile or electronic means.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Scheduling of expedited five-year reviews concerning the countervailing duty and antidumping duty orders on sulfanilic acid from China and India.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to section 751(c)(3) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(3)) (the Act) to determine whether revocation of the countervailing duty and antidumping duty orders on sulfanilic acid from China and India would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207). Recent amendments to the Rules of Practice and Procedure pertinent to five-year reviews, including the text of subpart F of part 207, are published at 63 F.R. 30599, June 5, 1998, and may be downloaded from the Commission's World Wide Web site at
January 7, 2000.
Debra Baker (202-205-3180), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server
On January 7, 2000, the Commission determined that the domestic interested party group responses to its notice of institution (64 FR 53412, October 1, 1999) were adequate and the respondent interested party group responses were inadequate. The Commission did not find any other circumstances that would warrant conducting full reviews.
A staff report containing information concerning the subject matter of the reviews will be placed in the nonpublic record on April 17, 2000, and made available to persons on the Administrative Protective Order service list for these reviews. A public version will be issued thereafter, pursuant to section 207.62(d)(4) of the Commission's rules.
As provided in section 207.62(d) of the Commission's rules, interested parties that are parties to the reviews and that have provided individually adequate responses to the notice of institution,
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
The Commission has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C. § 1675(c)(5)(B).
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation for BLS, ETA, PWBA, and OASAM contact Karin Kurz (202) 219-5096 ext. 159 or by e-mail to Kurz-Karin@dol.gov). To obtain documentation for ESA, MSHA, OSHA, and VETS contact Darrin King ((202) 219-5096 ext. 151 or by e-mail to King-Darrin@dol.gov).
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for BLS, DM, ESA, ETA, MSHA, OSHA, PWBA, or VETS, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
•-Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
•-Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
•-Enhance the quality, utility, and clarity of the information to be collected; and
•-Minimize the burden of 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, e.g., permitting electronic submission of responses.
Notice.
The Department of Labor (the Department), as part of its continuing effort to reduce paperwork and respondent burden, provides the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Pension and Welfare Benefits Administration is soliciting comments concerning the proposed extension of a currently approved collection of information, Definition of Plan Assets—Participant Contributions, CFR § 2510.3-102. A copy of the proposed information collection request can be obtained by contacting the individual listed below in the address section of this notice.
Written comments must be submitted on or before March 20; 2000.
Gerald B. Lindrew, Department of Labor, Pension and Welfare Benefits Administration, 200 Constitution Avenue, NW, Washington, D.C. 20210, (202) 219-4782 (not a toll-free number), FAX (202) 219-4745.
This regulation describes when certain monies, which a participant pays to or has withheld by an employer for contribution to an employee benefit plan, are “plan assets” for purposes of Title I of the Employee Retirement Security Act of 1974 (ERISA) and the related prohibited transaction provisions of the Internal Revenue Code (IRC). The regulation establishes that participant contributions to an employee pension benefit plan become plan assets on the earliest date that they can reasonably be segregated from an employer's general assets, but in no event later than 15 business days for pension plans, 90 days for welfare plans, and, in the case of SIMPLE Retirement Accounts, 30 days following the month in which the contribution amounts would otherwise have been payable to the participant in cash.
The regulation also establishes a procedure (for pension plans only) whereby an employer may obtain an additional 10 business days to comply with the contribution time limits. In order to take advantage of this opportunity, an employer is required to satisfy certain exemption conditions, including notification to participants, bonding, and certification to the Secretary of the Department of Labor when the funds are transmitted. These conditions are intended to protect participant contributions and provide the Department with adequate notice of an employer's compliance.
The Department of Labor (Department) is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The regulation provides guidance for fiduciaries, participants, and beneficiaries of employee benefit plans on the requirements for transmission of employee contributions withheld from wages. Extension of the information collection provision of the regulation is important because delays in the transmittal of funds may result in lost earnings to pension plan participants and beneficiaries. In addition, for those employers who may have difficulty meeting regulation deadlines for participant contribution transmissions, the extension provision of the regulation provides an alternate means of employer compliance with the regulation, while providing participants, beneficiaries, and the Department with sufficient information to protect their rights under ERISA.
This notice requests comments on the extension of the ICR included in the regulation governing the definition of “plan assets.” The Department is not proposing or implementing changes to the existing ICR at this time. Comments received in response to this notice will be incorporated in the submission to OMB for continued clearance of the ICR.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
U.S. Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to OMB and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
1. The title of the information collection: 10 CFR Part 140, “Financial Protection Requirements and Indemnity Agreements”.
2. Current OMB approval number: 3150-0039.
3. How often the collection is required: As necessary in order for NRC to meet its responsibilities called for in Section 170 and 193 of the Atomic Energy Act of 1954, as amended (the Act).
4. Who is required or asked to report: Licensees authorized to operate reactor facilities in accordance with 10 CFR part 50 and licensees authorized to construct and operate a uranium enrichment facility in accordance with 10 CFR parts 40 and 70.
5. The number of annual respondents: Approximately 178.
6. The number of hours needed annually to complete the requirement or request: 821.
7. Abstract: 10 CFR part 140 of the NRC's regulations specified information required to be submitted by licensees to enable the NRC to assess (a) the financial protection required of licensees and for the indemnification and limitation of liability of certain licensees and other persons pursuant to Section 170 of the Atomic Energy Act of 1954, as amended, and (b) the liability insurance required of uranium enrichment facility licensees pursuant to Section 193 of the Atomic Energy Act of 1954, as amended.
Submit, by March 20, 2000, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, 2120 L Street, NW (lower level), Washington, DC. OMB clearance requests are available at the NRC worldwide web site (http://www.nrc.gov/NRC/PUBLIC/OMB/index.html). The document will be available on the NRC home page site for 60 days after the signature date of this notice.
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Brenda Jo. Shelton, US Nuclear Regulatory Commission, T-6 E6, Washington, DC 20555-0001, by telephone at 301-415-7233, or by Internet electronic mail at BJS1@NRC.GOV.
The US Nuclear Regulatory Commission (the Commission) is considering issuance of amendments to Facility Operating Licenses Nos. NPF-10 and NPF-15 issued to Southern California Edison Company (SCE, the licensee) for operation of the San Onofre Nuclear Generating Station (SONGS), Units 2 and 3, located in San Diego County, California.
The proposed amendments would revise the SONGS Units 2 and 3 Technical Specification (TS) 3.7.6, “Condensate Storage Tank (CST T-121 and T-120)” to change the minimum inventory of water maintained in the condensate storage tank (T-120) from 280,000 gallons to 360,000 gallons during plant operation Modes 1, 2 and 3.
Before issuance of the proposed license amendments, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendments would not (1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) Create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) Involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The purpose of the increased water volume is to ensure that the required volume of water preserved by Technical Specification 3.7.6 is sufficient to meet the San Onofre Units 2 and 3 Licensing and Design Basis. To meet the guidance of Reactor Systems Branch Technical Position RSB-5-1, the Southern
Therefore, this change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
Increasing the minimum water volume required in a 500,000-gallon tank from 280,000 gallons to 360,000 gallons will not initiate any accident.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Involve a significant reduction in a margin of safety?
Response: No.
The margin of safety intended by the original 280,000 gallon requirement was to ensure that following a Design Basis Earthquake (DBE) CST T-120 would have at least 200,000 gallons to meet Southern California Edison's (SCE's) commitment to RSB-5-1. Raising the minimum volume to 360,000 gallons to account for calculated water losses, with additional allotment for future allocations, increases the margin above the 200,000 gallons and therefore increases the assurance that the RSB-5-1 commitment is met.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based on the responses to these three criterion, Southern California Edison (SCE) has concluded that the proposed amendment involves no significant hazards consideration.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By February 17, 2000, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714 which is available at the Commission's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site (http://www.nrc.gov). If a request for a hearing or petition for leave to intervene is filed by the above date, the Commission or an Atomic Safety and Licensing Board, designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the designated Atomic Safety and Licensing Board will issue a notice of hearing or an appropriate order.
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, US Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, US Nuclear Regulatory Commission, Washington, DC 20555-0001, and to Douglas K. Porter, Esquire, Southern California Edison Company, 2244 Walnut Grove Avenue, Rosemead, California 91770, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendments dated January 11, and supplemented November 29, 1999, which are available for public inspection at the Commission's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site (http://www.nrc.gov).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission
Notice of Meeting
The Nuclear Regulatory Commission is sponsoring a public meeting involving the Office of Enforcement, the Office of the General Counsel, the Office of Nuclear Material Safety and Safeguards, the Office of Nuclear Reactor Regulation, and any interested members of the public. The purpose of the meeting is to provide a forum to discuss public comments on Management Directive 8.11, “Review Process for 10 CFR 2.206 Petitions,” in response to a
February 10, 2000, from 8:00 a.m. to 12:00 noon.
One White Flint North, Room O-10B4, 11555 Rockville Pike, Rockville, Maryland 20852.
Andrew Kugler, Mail Stop O-4A15B, U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, MD 20852-2738; Telephone: (301) 415-2828;
For the Nuclear Regulatory Commission.
In accordance with the requirement of Section 3506 (c)(2)(A) of the Paperwork Reduction Act of 1995 which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board will publish periodic summaries of proposed data collections.
When the Railroad Retirement Board (RRB) determines that an overpayment of Railroad Retirement Act (RRA) benefits has occurred, it initiates prompt action to notify the annuitant of the overpayment and to recover the money owed the RRB. In addition to the customary form of repayment (check, money order, annuity withholding), repayment of a debt owed the RRB can also be made by means of a credit card. To effect payment by credit card, the RRB utilizes Form G-421f, Repayment by Credit Card. Minor non-burden impacting editorial changes are being proposed to Form G-421f. One form is completed by each respondent. Completion is voluntary. RRB procedures pertaining to benefit overpayment determinations and the recovery of such benefits are prescribed in 20 CFR 255 and 340.
The estimated annual respondent burden is as follows:
To request more information or to obtain a copy of the information collection justification, forms, and/or supporting material, please call the RRB Clearance Officer at (312) 751-3363. Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 N. Rush Street, Chicago, Illinois 60611-2092. Written comments should be received within 60 days of this notice.
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of application for an order of approval pursuant to Section 26(b) of the Investment Company Act of 1940 (the “Act”) and an order granting exemptive relief pursuant to Section 17(b) of the Act from the provisions of section 17(a) of the Act.
Applicants seek an order under Section 26(b) for the Act to permit each subaccount of Pacific Life Insurance Company (“Pacific Life”) that serves as a funding vehicle for the Pacific Innovations Trust variable annuity contracts (“Variable Contracts”), to replace shares of each portfolio of Pacific Innovations Trust with shares of a designated portfolio of Pacific Select Fund. Applicants also seek an exemption from Section 17(a) of the Act to the extent necessary: (i) To permit the consolidation of Pacific Life Insurance Company Separate Account A (“Separate Account A”), a segregated asset account of Pacific Life that serves as a funding vehicle for certain variable annuity contracts issued by Pacific Life, and Separate Account B (collectively, the “Accounts”), by transferring the assets and liabilities of Separate Account B to Separate Account A; and (ii) to permit Applicants to carry out the substitutions described herein by way of in-kind redemptions and purchases.
Secretary, Commission, 450 Fifth Street, N.W., Washington, DC 20549-0609. Applicants, c/o Robin Yonis Sandlaufer, Esq., Vice President and Investment Counsel, Pacific Life Insurance Company, 700 Newport Center Drive, Newport Beach, CA 92660.
Paul G. Cellupica, Senior Counsel, or Susan M. Olson, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 942-0670.
The following is a summary of the application. The complete application may be obtained for a fee from the SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington, DC 20549 (202-942-8090).
1. Pacific Life is a life insurance company that is domiciled in California. Its operations include both life insurance and annuity products as well as financial and retirement services. As of December 31, 1998, Pacific Life managed $290 billion in assets. Pacific Life is authorized to conduct a life insurance and annuity business in the District of Columbia and all states except New York. Pacific Life was originally organized on January 2, 1868, under the name “Pacific Manual Life Insurance Company of California” and reincorporated as “Pacific Mutual Life Insurance Company” on July 22, 1936. On September 1, 1997, it converted from a mutual life insurance company to a stock life insurance company ultimately controlled by a mutual holding company. Pacific Life is the depositor for the Accounts.
2. Separate Account A is a segregated asset account of Pacific Life and is registered under the Act as a unit investment trust. Separate Account A serves as a funding vehicle for variable annuity contracts issued by Pacific Life known as “Pacific Portfolios,” “Pacific One,” and “Pacific Value.” Separate Account A currently has 20 subaccounts, each investing in a portfolio of the Select Fund.
3. Separate Account B is a segregated asset account of Pacific Life and is registered under the Act as a unit investment trust. Separate Account B was established by Pacific Life and serves as a funding vehicle for the Variable Contracts. Separate Account B is divided into seven subaccounts each of which invests in a separate portfolio of Innovations Trust.
4. Innovations Trust is registered as an open-end management investment company under the Act and currently offers seven investment portfolios (“Innovations Portfolios”). Other than shares purchased by an affiliate of Pacific Life in connection with the initial capitalization of Innovations Trust, shares of the Innovations Portfolios are sold to and held only by Separate Account B.
5. Select Fund is a registered open-end management investment company that currently offers 20 separate portfolios (the “Select Portfolios”) which are available to Separate Account A Contractholders. Shares of Select Fund currently are offered only to Pacific Life separate accounts for the purpose of serving as an investment vehicle for variable annuity and variable life insurance contracts offered or administered by Pacific Life.
6. Pacific Mutual Distributors (“PMD”) serves as Distributor for the Variable Contracts. PMD is an indirect subsidiary of Pacific Life and is registered as a broker-dealer with the Commission. Pursuant to selling agreements with Pacific Life and PMD, broker-dealers that are affiliated with or closely related to Bank of America Corporation (“Broker-Dealers”) have been appointed to solicit and/or accept applications for the Variable Contracts. The Broker-Dealers are the sole broker-dealers that are appointed to solicit and/or accept applications for the Variable Contracts. Bank of America Corporation recently merged with NationsBank Corporation to form a new bank holding company called BankAmerica Corporation. PMD and Pacific Life have been informed that the Broker-Dealers no longer intend to actively market the Variable Contracts.
7. Innovations Trust has no source of incoming assets other than the Variable Contracts. At present, Pacific Life does not intend to seek other potential sellers for the Variable Contracts other than the Broker-Dealers. Thus, the risk is presented that Innovations Trust will not grow, and indeed may shrink, and a question is presented as to whether Innovations Trust is an appropriate investment medium for the Variable Contracts.
8. The Substitutions reflect a determination by Pacific Life to ensure that owners of the Variable Contracts (“Contractholders”) have available under their Variable Contracts a viable mutual fund with good prospects for growth so that Contractholders will have an appropriate investment vehicle to help meet their investment goals under the Variable Contracts.
9. Accordingly, pursuant to its authority under the respective Variable Contracts and the prospectuses describing the same, and subject to the approval of the Commission under Section 26(b) of the Act, Pacific Life has determined that each subaccount of Separate Account B will replace securities issued by each Innovations Portfolio with securities of a designated Select Portfolio that in each case has investment objectives and policies that are sufficiently similar to those of the corresponding Innovations Portfolio so that Contractholders will have reasonable continuity in investment and risk expectations. Each replacement of an Innovations Portfolio by a designated Select Portfolio is indicated below:
The Select Portfolios that would receive monies or in-kind securities from the Innovations Portfolios as a result of the proposed substitutions (“Substitutions”) are referred to herein as “Affected Select Portfolios.” Other Select Portfolios (“Additional Portfolios”) will be available after the substitution is effected as options for Contractholders.
10. Applicants believe that replacing the current Innovations Portfolios with the Select Portfolios is appropriate and in the best interests of Contractholders, who will benefit from an underlying fund with approximately $10 billion in assets. The proposed Substitutions also provide Contractholders with: (1) Underlying portfolios having lower expense ratios with the expectation that after the Substitutions, the ratios will remain lower; (2) competitive historical portfolio performance; (3) a competitive lineup of adviser and subadvisers; (4) investment in a fund that underlies Pacific Life's proprietary variable annuity and life insurance contracts, and therefore in a fund to which Pacific Life has a very strong commitment; and (5) an expanded array of variable investment options for Contractholders.
11. The replacement of the Innovations Money Market Fund with the Select Money Market Portfolio will provide Contractholders with a substantially similar money market vehicle. The following table compares the respective asset levels, performance and annual net expense ratios of these two portfolios as of December 31, 1998.
12. Although not identical, the investment objectives, policies and strategies of the Innovations Managed Bond Fund are comparable to those of the Select Managed Bond Portfolio. The following table compares the respective asset levels, performance and annual net expense ratios of these two portfolios as of December 31, 1998.
13. Although not identical, the investment objectives, policies and strategies of the Innovations Capital Income Fund are sufficiently similar to those of the Select Multi-Strategy Portfolio so that Contractholders will
14. Although not identical, the investment objectives, policies, and strategies of the Innovations Blue Chip Fund are comparable to those of the Select Equity Portfolio. The following table compares the respective asset levels, performance and annual net expense ratios of these two portfolios as of December 31, 1998.
15. Although not identical, the investment objectives, policies, and strategies of the Innovations Mid-Cap Equity Fund are comparable to those of the Select Growth LT Portfolio. The following table compares the respective asset levels, performance and annual net expense ratios of these two portfolios as of December 31, 1998.
16. Although not identical, the investment objectives, policies and strategies of the Innovations Aggressive Growth Fund are comparable to those of the Select Aggressive Equity Portfolio. The following table compares the respective asset levels, performance and annual net expense ratios of these two portfolios as of December 31, 1998.
17. Although not identical, the investment objectives, policies, and strategies of the Innovations International Fund are comparable to those of the Select International Portfolio. The following table compares the respective asset levels, performance and annual net expense ratios of the two portfolios as of December 31, 1998.
18. As of the effective date of the Substitutions (“Effective Date”), shares of the Innovations Portfolios will be redeemed in cash and in-kind by Pacific Life. The proceeds of such redemptions will then be used to purchase shares of the Affected Select Portfolios, either by cash or in-kind purchase, with each subaccount of Separate Account B investing the proceeds of its redemption from the Innovations Portfolio in the corresponding Affected Select Portfolio. The Substitutions will take place at respective net asset values. The contract value of any affected Contractholder immediately after the Substitutions shall be the same as the value immediately before the Substitutions.
19. Pacific Life will bear the costs of any legal or accounting fees of the Substitutions and transactional expenses, including brokerage commissions, in liquidating the assets of the Innovations Portfolios to be able to make payment to Separate Account B in connection with the Substitutions. Contractholders will not incur any additional fees or charges as a result of the Substitutions, nor will their rights or obligations under any of the Variable Contracts diminish in any way.
20. Contractholders were notified of the application by means of a supplement to the prospectus for the Variable Contracts that discloses that Applicants would be filing the application and are seeking approval for the Substitutions.
21. Following the date on which the order requested by the application is issued, but before the Effective Date of the Substitutions, a notice (“Substitution Notice”), in the form of an additional supplement to the prospectuses for the Variable Contracts, will be mailed to Contractholders setting forth the scheduled Effective Date of the Substitutions and advising Contractholders that contract values attributable to investments in the Innovations Portfolios will be transferred to the subaccounts corresponding to the Affected Select Portfolio, without charge, on the Effective Date.
22. The Substitution Notice will state that Contractholders may make transfers of contract value among the variable investment options without limit and without any charge for a period of at least 60 days from the Effective Date, and that an exchange of subaccount annuity units may be made during such period in addition to the four that are permitted in a 12-month period.
23. In light of the fact that Applicants intend, through the Substitutions, for Separate Account B to invest in shares of the same underlying mutual fund portfolios in which the subaccounts of Separate Account A now invest, Pacific Life may determine that no valid business purpose would be served by maintaining two distinct separate accounts investing in the same underlying fund. Accordingly, to avoid the duplication that would result and to save the cost of maintenance of Separate Account B, Pacific Life seeks an exemption to the extent necessary to permit the consolidation of the Accounts by transferring the assets and liabilities of Separate Account B to Separate Account A (such transfer is referred to hereing as the “Proposed Transaction”). Separate Account A would continue to exist. The effect of the foregoing transaction would be that, as of the closing date for the Proposed Transaction, Separate Account A would support the Variable Contracts (
24. The Proposed Transaction would be effected with no change in the aggregate value of the subaccount units (both accumulation and annuity units) involved. There would be no change in the Contractholders' contract value and no charges would be imposed or other deductions made in connection therewith. The transaction would be effected by transferring the assets and corresponding liabilities of a subaccount of Separate Account B to the corresponding subaccount of Separate Account A, which will be the subaccount that invests in the Select Portfolio that will have previously been substituted for the Innovations Portfolio.
1. Section 26(b) of the Act makes it unlawful for any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(b) provides such approval shall be granted by order of the Commission, if the evidence establishes that it is consistent with the protection of investors and the purposes of the Act.
2. Section 26(b) was intended to provide for Commission scrutiny of proposed substitutions which could, in effect, force shareholders with the substitute security to redeem their shares, thereby possibly incurring a loss of the sales load deducted from initial purchase payments, an additional sales load upon reinvestment of the proceeds of redemption, or both. The section was designed to forestall the ability of a depositor to present holders of interest in a unit investment trust with situations in which a holder's only choice would be to continue an investment in an unsuitable security, or to elect a costly and, in effect, forced redemption. For the reasons described below, Applicants submit that the Substitutions meet the standards set forth in Section 26(b) and that, if implemented, the Substitutions would not raise any of the aforementioned concerns that Congress intended to address when the Act was amended to include this provision.
3. Applicants assert that the replacement of each of the Innovations Portfolios with each of the corresponding Select Portfolios is appropriate and in the interests of Contractholders and, thus, meets the standards necessary to support an order pursuant to Section 26(b) of the Act. The Select Portfolios have comparable investment objectives and policies as those of the Innovations Portfolios.
4. Apart from the Substitution of the underlying investment vehicle, the rights of the Contractholders and the obligations of Pacific Life under the Variable Contracts would not be altered by the Substitutions except, of course, that Contractholders will not have the right to retain their beneficial interest in the Innovations Portfolios. Contractholders will not incur any additional tax liability as a result of the Substitutions. Also, the rights and obligations of Pacific Life under the Variable Contracts will not be altered in any way in connection with the Substitution. As previously noted, Contractholders will not incur any additional fees or charges as a result of the Substitutions, including any legal or accounting fees of the Substitutions and transactional expenses, including brokerage commissions, in liquidating the assets of the Innovations Portfolios to be able to make payments to Separate Account B with the Substitutions.
5. In accordance with procedures to be implemented by Applicants, Contractholders will have the right to transfer cash values among the subaccounts invested in the Select Portfolios, including the Additional Portfolios under their Variable Contracts, without incurring any additional fees or charges with respect to the transfer until at least 60 days after the Effective Date of the Substitutions. For purposes of the restriction on exchanges after annuitization, an exchange of subaccount annuity units during such 60-day period will not count as an exchange for purposes of the limit of four such exchanges in a twelve-month period. Each Contractholder has received a prospectus supplement and will, prior to the Effective Date, receive a Substitution Notice (in the form of an additional prospectus supplement) regarding the Substitutions, together with information about other available investment options and a prospectus for Select Fund.
6. Applicants assert that the procedures to be implemented are sufficient to assure that Contractholders' accounts values immediately before the Substitutions shall be equal to the account values immediately after the Substitutions, and that Substitutions will not affect the value of the interests of those owners of Pacific Life variable contracts who currently have contract value allocated to any of the Select Portfolios. Applicants state that any in-kind redemptions and purchases for purposes of the Substitution will be effected in a manner consistent with the investment objectives and policies of the respective underlying funds. Pacific Life or the Portfolio Managers of the Select Fund will review the in-kind redemptions to assure that assets to be transferred are a suitable investment for the substitute Select Portfolios in the overall context of such fund's investment objectives and policies. Securities to be paid out as redemption proceeds and subsequently contributed to the respective substitute Select Portfolios to effect the contemplated in-kind purchases of shares, will be valued based on the normal valuation procedures of the redeeming and purchasing funds and, consistent with Rule 17a-7(d) under the Act, no brokerage commission, fees or other remuneration will be paid in connection with the in-kind transactions. Applicants submit that, for all the reasons stated above, and particularly to ensure that a viable mutual fund is available as an investment vehicle for the Variable Contracts, the Substitutions are consistent with the protection of investors and the purposes faily intended by the policy of the Variable Contracts and provisions of the Act.
7. Section 17(a)(1) of the Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such a person, acting as principal, from knowingly selling any securities or other property to such registered investment company. Section 17(a)(2) of the Act generally prohibits such persons from knowingly purchasing any security or other property from the registered investment company.
8. Section 17(b) of the Act provides that any person may apply for an order of exemption from the provisions of Section 17(a) in connection with a transaction prohibited by that section, and that the Commission shall grant such an application if evidence establishes that: (i) the terms of the proposed transaction, including the consideration to be paid or received are reasonable and fair and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policy of each registered investment company concerned, as recited in its registration statement and reports filed under the Act; and (iii) the proposed transaction is consistent with the general of the Act.
9. Applicants asserts that the terms under which the in-kind redemptions and purchases will be effected are reasonable and fair and do not involve overreaching on the part of any person because the Substitutions will not dilute the interests of any affected Contractholder. The proposed Substitutions will result in situations where in-kind redemptions and purchases are more efficient and where a Select Portfolio elects to accept/purchase a security held by the Innovations Portfolio. The use of in-kind redemptions of such subaccounts are intended to reduce costs and thereby benefit contractholders. The in-kind redemptions and purchases will be done at values consistent with the policies of both the Innovations Portfolios and the Affected Select Portfolios. Both Pacific Life and the Portfolio Manager of each Affected Select Portfolio will review the securities holdings of the Innovations Portfolio and determine whether in-kind redemptions and purchases would be a suitable investment for the Affected Select Portfolio in the overall context of such fund's investment objectives and policies and consistent with their management of the Affected Select Portfolio. Applicants state that securities to be paid out as redemption proceeds and subsequently contributed to the respective Affected Select Portfolios to effect the contemplated in-kind purchases of shares, will be valued based on the normal valuation procedures of the redeeming and purchasing Portfolios. Any inconsistences in valuation procedures between the Innovations Portfolio and the Affected Select Portfolio will be reconciled so that the redeeming and purchasing values are the same. Therefore, there will be no change in value to any Contractholder as a result of the Substitutions.
10. Applicants believe that the terms of the Proposed Transaction described in the application, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching; and are consistent with the general purpose of the Act; and therefore meet the conditions for receiving exemptive relief under Section 17(b). The Commission has previously granted exemptions from Section 17(a) to permit the combination or consolidation of separate accounts registered as unit investment trusts, and has also granted numerous exemptions from section 17(a) to permit the consolidation of subaccounts of a separate account registered as a unit investment trust in connection with a substitution. In addition, the Commission has granted exemptions from Section 17(a) to permit in-kind redemptions and purchases to carry out substitutions.
For purposes of the approval sought pursuant to Section 26(b) of the Act, the Substitutions described in the application will not be completed, unless all of the following conditions are met:
1. The Commission shall have issued an order (i) approving the Substitutions under Section 26(b) of the Act; (ii) exempting the consolidation of Separate Account A and Separate Account B from the provisions of Section 17(a) of the Act; and (ii) exempting any in-kind redemptions and purchases from the provisions of Section 17(a) of the Act as necessary to carry out the transactions described in the application.
2. Each Contract holder will have been sent: (i) A copy of the effective prospectus relating to each of the Affected Select Portfolios and any necessary amendments to the prospectuses relating to the Variable Contracts; and (ii) as soon as reasonable possible after order has been issued and prior to the Effective Date of the Substitutions, a notice describing the terms of the Substitutions and the rights of the Contractholders in connections with the substitutions.
3. Pacific Life shall have satisfied itself, that: (i) The Variable Contracts allow the substitution of portfolios in the manner contemplated by the Substitutions and related transactions described herein; (ii) the transactions can be consummated as described in the application under applicable insurance laws; and (ii) that any applicable regulatory requirements in each jurisdiction where the Variable Contracts are qualified for sale, have been complied with to the extent necessary to complete the transactions.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meeting during the week of January 17, 2000.
A closed meeting will be held on Thursday, January 20, 2000 at 11:00 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(4), (8), (9)(A) and (10) and 17 CFR 200.402(a)(4), (8), (9)(A) and (10), permit consideration for the scheduled matters at the closed meeting.
Commissioner Johnson, as duty officer, voted to consider the items listed for the closed meeting in a closed session.
The subject matters of the closed meeting scheduled for Thursday, January 20, 2000, will be:
A litigation matter;
Institution and settlement of injunctive actions; and
Institution and settlement of administrative proceedings of an enforcement nature.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The office of the Secretary at (202) 942-7070.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASD Regulation proposes to establish Rule 2790, Trading in Hot Equity Offerings, to replace the Free-Riding and Withholding Interpretation, IM-2110-1. Below is the text of the proposed rule change. Proposed Rule 2790 contains all new language. In the other proposed changes, additions are italicized and deletions are bracketed.
Deleted in its entirety and replaced with:
A member who is acting, or plans to act, as sponsor of a unit investment trust will not violate Rule 2750 if it accumulates securities with respect to which the member has acted as a syndicate member, selling group member or reallowance dealer in an account of the member or related person of the member if, at the time of accumulation, the member in good faith intends to deposit the securities into the unit investment trust at the public offering price and intends to make a bona fide public offering of the participation units of that trust. Members engaged in such activity, however, will continue to be subject to
(1) “Affiliate” shall have the same meaning as in Rule 2720(b)(1).
(2) “Beneficial interest” means any ownership or other direct financial interest.
(4) “Conversion offering” means any offering of securities made as part of a plan by which a savings and loan association, insurance company, or other organization converts from a mutual to a stock form of ownership.
(5) “Hot issue” means any security that is part of a public offering if the volume weighted price during the first five minutes of trading in the secondary market is 5% or more above the public offering price.
(6) “Immediate family member” shall include a person's parents, mother-in-law or father-in-law, spouse, brother or sister, brother-in-law or sister-in-law, son-in-law or daughter-in-law, and children, and any other individual for whom the person, directly or indirectly, provides material support.
(7) “Joint back office broker/dealer” means any domestic or foreign private investment fund that has voluntarily registered as a broker/dealer solely to take advantage of more favorable margin treatment afforded under Section 220.7 of Regulation T of the Federal Reserve. The activities of a joint back office broker/dealer must not require that it register as a broker/dealer under Section 15(a) of the Act.
(8) “Limited business broker/dealer” means any broker/dealer whose authorization to engage in the securities business is limited solely to the purchase or sale of either investment company/variable contracts securities or direct participation program securities.
(9) “Material support” means providing more than 10% of a person's income or expenses. Material support shall be presumed for members of the immediate family living in the same household.
(10) “Public offering” means any initial or secondary public offering of an equity security as defined in Section 3(a)(11) of the Act, made pursuant to a registration statement or offering circular, including exchange offers, rights offerings, offerings made pursuant to a merger or acquisition, or other securities distributions of any kind whatsoever, including securities that are specifically directed by the issuer on a non-underwritten basis. Public offering shall not include:
(A) offerings made pursuant to an exemption under Section 4(1), 4(2) or 4(6) of the Securities Act of 1993 or SEC Rule 504, 505 or 506 adopted thereunder; and
(B) offerings of exempted securities as defined in Section 3(a)(12).
(11) “Restricted person” includes:
(A) members or other broker/dealers, unless the ultimate purchaser is a non-restricted person purchasing the security at the public offering price;
(B) officers, directors, general partners, employees or agents of a member or any other broker/dealer (other than a limited business broker/dealer);
(C) with respect to the security being offered, finders or any person acting in a fiduciary capacity to the managing underwriter, including, but not limited to, attorneys, accountants and financial consultants;
(D) any employee or other person who supervises, or whose activities directly or indirectly involve or are related to, the buying or selling of securities for a bank, savings and loan institution, insurance company, investment company, investment advisor, or collective investment account;
(E) any affiliate of a broker/dealer (other than a limited business broker/dealer); and
(F) any natural person or member of the person's immediate family who owns 10% or more or has contributed 10% or more of the capital of a broker/dealer (other than a limited business broker/dealer).
(1) A member or a person associated with a member may not sell, or cause to sell, a hot issue in a public offering to any account in which a restricted person or a member of the restricted person's immediate family has a beneficial interest, expect as permitted herein or through an exemption pursuant to the Rule 9600 Series.
(2) A member or a person associated with a member may not purchase a hot issue in a public offering, except as permitted herein or through an exemption pursuant to the Rule 9600 Series.
(3) A member may not continue to hold hot issues acquired in a public offering except as permitted herein or through an exemption pursuant to the Rule 9600 Series.
A member or a person associated with a member does not violate this rule if it cancels a sale of a hot issue made to the account of a restricted person or a member of the person's immediate family prior to the end of the first business day following the date that trading commences (
Before selling a hot issue to any account, a member must have obtained within the previous twelve months documentary evidence from the account holder, or a person authorized to represent the beneficial owners of the account or the ultimate purchasers if the account is a conduit account, demonstrating that no restricted person or ultimate purchaser in the case of a conduit account, has a beneficial interest in the account, except as permitted under the rule. Members shall maintain a copy of all records and information used to determine that an account does not contain a restricted person in its files for at least three years following the members's last sale of a hot issue to that account.
A member or a person associated with a member with a member may sell hot issues to:
(1) A registered investment company under the Investment Company Act of 1940.
(2) A collective investment account (including a joint back office broker/dealer or a collective investment account with a joint back office broker/dealer subsidiary), that is beneficially owned in part by restricted persons, provided that such restricted persons in aggregate own less than 5% of such account.
(3) A publicly traded corporation (other than an affiliate of a broker/dealer) listed on an exchange or The Nasdaq Stock Market, in which no person with a 10% or more ownership interest is a restricted person.
(4) A foreign investment company organized under the laws of a foreign jurisdiction, meeting the following criteria:
(A) the company has 100 or more investors:
(B) the company is listed on a foreign exchange or authorized for sale to the public by a foreign regulatory authority;
(C) no more than 5% of the company's assets shall be invested in a particular hot issue; and,
(D) no person owning more than a 5% interest in such company is a restricted person.
(5) An employee benefits plan qualified under the Employee Retirement Income Security Act provided that the plan sponsor is not a member or an affiliate; or a state or foreign government employee benefit plan that is subject to separate state and municipal regulation.
(6) A tax exempt charitable organization under Section 501(c)(3) of the Internal Revenue Code.
(7) Employees and directors of the issuer, an entity which controls, is controlled by, or is under common control of this issuer.
(8) An immediate family member of a restricted person in paragraph (a)(11)(B) if:
(A) such restricted person does not directly or indirectly provide material support to, or receive material support from, the immediate family member;
(B) such restricted person is not employed by the member, or an affiliate of the member, selling the hot issue to the immediate family members; and
(C) such restricted person has no ability to control the allocation of the hot issue.
(9) An immediate family member of a restricted person in paragraphs (a)(11)(C)-(D) if such restricted person does not directly or indirectly provide material support to the member of the immediate family;
(10) A restricted person in paragraph (a)(11)(E) provided that the sale is to an account established for the benefit of bona fide public customers, including insurance company general, separate and investment accounts, and bank trust accounts.
The restrictions on the sale of hot issues in this rule shall not apply to sales to a restricted person in an initial public offering who meets the following criteria:
(1) the restricted person has held an equity ownership interest in the issuer, or a company that has been acquired by the issuer in the past year, for a period of one year prior to the effective date of the public offering;
(2) the sale of the hot issues to the restricted person shall increase the restricted person's percentage equity ownership in the issuer above the ownership level as of three months prior to the filing of the registration statement with the SEC in connection with the offering;
(3) the sale of hot issues to the restricted person must not include any special terms; and
(4) the hot issues purchased pursuant to this subsection shall be restricted from sale or transfer for a period of three months following the effective date of the offering.
The rule shall not apply to the sale of securities directed by the issuer of a conversion offering, either on an underwritten or non-underwritten basis, to any person eligible to purchase securities in accordance with the rules of a governmental agency or instrumentality having authority to regulate such conversion offering.
For purposes of this Rule, the following terms shall have the stated meanings:
(1) “Private securities transaction” shall mean any securities transaction outside the regular course or scope of an associated person's employment with a member, including, through not limited to, new offerings of securities which are not registered with the Commission, provided however that transactions subject to the notification requirements of Rule 3050, transactions among immediate family members (as defined in
(d) The following Rules of the Association and Interpretative Material thereunder are not applicable to transactions and business activities relating to the PORTAL Market:
(1) Rules 1130, 2450, 2710, 2730, 2740, 2750,
(2) IM-2110-1].
A member seeking an exemption from Rules 1021, 1022, 1070, 2210, 2320, 2340, 2520, 2710, 2720,
In its filing with the Commission, NASD Regulation included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASD Regulation has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASD Regulation is proposing Rule 2790, Trading in Hot Equity Offerings, to replace the Free-Riding and Withholding Interpretation, IM-2110-1 (“Interpretation”). The proposed new rule is an effort to focus and streamline the Interpretation, as well as to address feedback received in response to our request for comment on NASD rules in need of modernization in Notice to Members 98-81. NASD Regulation believes that the proposed rule is more carefully targeted towards the purposes of the Interpretation, while at the same time is significantly easier for the membership and the investing public to understand and follow.
Before addressing the specifics of the proposed rule change, it is important to understand its purpose. The purpose of the proposed rule, like the Interpretation it would replace, is to protect the integrity of the public offering process by:
(1) ensuring that members make a
(2) ensuring that members do not withhold securities in a public offering for their own benefit or use such securities to reward certain persons who are in a position to direct future business to the member; and
(3) ensuring that industry “insiders,” including members and their associated persons, do not take advantage of their “insiders” position in the industry to purchase hot issues for their own benefit at the expense of public customers.
The proposed rule contains several significant changes from the Interpretation, which are discussed in detail below. Members should be aware that notwithstanding the Board of Governors' endorsement of the proposed
NASD Regulation believes that defining a hot issue with reference to a threshold premium is more consistent with the purposes of the rule and avoids imposing limitations on the distribution of securities in a public offering for which there is no substantial or immediate secondary market demand. The proposed rule change defines a hot issue as any security that is part of a public offering if the volume weighted price during the first five minutes of trading in the secondary market is 5% or more above the public offering price. NASD Regulation selected 5% as the threshold premium because it preliminarily believes that a 5% premium effectively distinguishes between offerings for which there is substantial excess investor demand and those that are generally satiated by the market supply. NASD Regulation recognizes that the selection of any threshold is to an extent arbitrary, and expects to receive comments from members and investors on whether 5% is the correct premium
NASD Regulation selected the volume weighted price during the first five minutes of trading as the benchmark price for determining whether an offering is a hot issue in part because it is a calculation that can readily be performed by any member or investor with access to trade data. It also is similar to the method currently used by Corporate Financing staff in issuing determinations about whether an offering is a “hot issue.” NASD Regulation also selected the volume weighted price because it is generally not susceptible to manipulation. In fact, this same methodology is used to determine the settlement value of Nasdaq-100 options on the Chicago Options Exchange.
(1) members of the immediate family of an associated person who are not supported directly or indirectly by such associated person;
(2) finders in respect to the public offering or any person acting in a fiduciary capacity to the managing underwriter (including accountants, attorneys and consultants); and
(3) senior officers and directors of a bank, savings and loan institution, insurance company, investment company, investment advisory firm, or any other institutional type account, or any person in the securities department of any of the foregoing entities, or any other employee who may influence or whose activities directly or indirectly involve or are related to the function of buying or selling securities for any of the foregoing entities.
Under the Interpretation, conditionally restricted persons can purchase hot issues if:
(1) the securities are sold to the customer in accordance with the customer's normal investment practice;
(2) the amount of securities sold to any one such person is insubstantial; and
(3) the member's aggregate sales to conditionally restricted persons is insubstantial and not disproportionate in amount as compared to sales to other members of the public.
The concept of conditionally restricted persons establishes a compromise between an outright prohibition against purchasing hot issues and imposing no restrictions whatsoever. In many cases, treating a person was only conditionally restricted is contrary to the public interest. Many of the persons treated as conditionally restricted are in a position to direct business to a member. If a determination is made that members should not sell hot issues to persons who can direct business to the member, NASD Regulation does not believe that these
a. Finders and fiduciaries
NASD Regulation will continue to treat finders and fiduciaries to the managing underwriter as restricted persons. NASD Regulation believes that finders and fiduciaries to the managing underwriter are for practical purposes industry “insiders.” There is additional support for this position in the Corporate Financing Rule, Rule 2710, which defines the term “underwriter and related persons” as including “financial consultants and advisors, finders, * * *” Rule 2710(a)(6). Moreover, it is necessary to include finders and fiduciaries within the proposed rule to prevent issuers from circumventing the underwriting compensation limits of Rule 2710 by offering finders or fiduciaries access to the hot issue. NASD Regulation proposes treating these persons as restricted only for those offerings for which they are acting in the capacity as a finder or fiduciary. In the case of a law firm or consulting firm, the restriction would apply only to those persons working on a particular offering.
b. Personnel with respect to the securities activities of a bank, insurance company, investment company, investment advisor, or collective investment account
With respect to the Interpretation's restricted employees of a bank, savings and loan institution, insurance company, investment company, investment advisory firm, or any other institutional type account, NASD Regulation recommends several changes. The persons identified in this category are subject to the Interpretation because their position allows them the opportunity to direct business to a member, and it is believed that members would direct hot issues to the accounts of these persons in an effort to attract or retain business. NASD Regulation believes that this provision protects an important policy, but that the scope of persons covered may be too broad. NASD Regulation does not believe that all senior officers and all employees in the securities department of the covered entities should be restricted. Rather, a more function-oriented approach is proposed by treating as restricted persons only those employees or other persons who supervise, or whose activities directly or indirectly involve or are related to, the buying or selling of securities for a bank, savings and loan institution, insurance company, investment company, investment advisor, or collective investment account.
The proposed rule also eliminates the term “institutional type account” which has been confusing and misleading to members since many of the covered entities are not “institutional.” The term institutional type account covers a broad range of accounts, including a corporation's investment account, a hedge fund, a family partnership, and an investment club. NASD Regulation notes that this category of persons is restricted under the Interpretation because they are in a position to direct investments. The Interpretation, however, implicitly accepts the practice of member firms awarding hot issues to their best customers. NASD Regulation is developing a distinction between directing investments of one's own money and other peoples’ money. This concept is addressed in the proposed rule’s definition of “collective investment account” which is defined as “any hedge fund, investment partnership, investment corporation, or any other collective investment vehicle that manages assets of other persons.” The proposed rule clarifies that a collective investment account shall not include any entity in which the decision to buy or sell securities is made jointly by each of the persons investing in the entity or by a member of their immediate family. NASD Regulation does not believe that participation in an investment club, where, for example, ten people contribute their own money and make decisions as a group, is the type of activity that should preclude a person from purchasing hot issues. Likewise, NASD Regulation also does not believe that establishing and managing a family partnership should preclude a person from purchasing hot issues. Family partnerships are often established for tax and estate planning purposes and, because they do not involve managing other peoples’ money, they do not implicate the concerns addressed by the proposed rule.
c. Collective investment accounts with very limited ownership by restricted persons
The proposed rule also contains an exemption for collective investment accounts owned by restricted persons to a very limited extent. Currently, the Interpretation states that investment partnerships and corporations in which a restricted person has a beneficial interest are prohibited form purchasing hot issues unless the investment partnership or corporation “carves-out” the interest of the restricted persons. NASD Regulation is aware that investment partnerships and corporations frequently incur significant expense in determining the status of every participant, particularly in the fund of fund contexts. In an effort to eliminate some of the burdens associated with the Interpretation, the proposed rule creates an exemption from the rule for a collective investment account that is beneficially owned in part by restricted persons, provided that such restricted persons in aggregate own less than 5% of such account. NASD Regulation believes that creating an exemption to accommodate these minimal interests in collective investment accounts is consistent with the purposes of the rule. Investors frequently like to see a general partner invest in the accounts they manage, and the proposed rule will now allow the general partner of a collective investment account to have a small but direct capital interest.
In addition, the 5% limit allows restricted persons who were previously only conditionally restricted, such as hedge fund managers, investment advisors, and other investment and portfolio managers, to participate in hot issues to a limited extent. Under the new rule, however, the participation by restricted persons will be incidental to what is otherwise a bona fide public distribution to investors beneficially owning 95% or more of the collective investment account. Lastly, this exemption for minimal ownership interests is consistent with the rationales for exempting registered investment companies and foreign investment companies.
As with the current Interpretation, a collective investment account that is beneficially owned 5% or more in aggregate by restricted persons would be able to purchase hot issues so long as the restricted persons do not participate in the hot issue activity,
Second, the rule would eliminate the requirement for a three month lock-up for sales to restricted persons. The exemptive provisions addressing issuer-directed share programs were adopted in 1994. In announcing these amendments, the NASD explained that issuer-directed share programs are a valuable tool in employee development and retention. The NASD explained that the Interpretation should not interfere with programs that are part of an employer/employee relationship. NASD Regulation believes that issuers should be free to set the conditions for sales of their own securities to their employees, or employees of eligible related companies, even if such employees are otherwise restricted persons. While in many cases issuers impose lock-up periods, we do not believe they should be mandated by the proposed rule. Eliminating the lock-up period will eliminate the need for members to investigate the status of employees and directors of the issuer and eligible related companies, which was previously necessary solely to comply with the lock-up provisions.
Also, the proposed rule change will allow all employees and directors of the issuer and eligible related companies to be able to purchase securities of the issuer on equal terms. Currently, under the Interpretation, an employee of an issuer with a spouse in the securities business is required to lock-up the securities even though other employees may have no similar lock-up requirement.
(1) Providing no specific guidance whatsoever with respect to sales to associated persons of a member;
(2) to requiring written certifications from foreign broker/dealers and foreign banks;
(3) to requiring notations on and principal review of order tickets for sales to domestic banks and conduits for undisclosed principal (including registered investment advisers); and
(4) to written representations from attorneys and/or certified public accountants for sales to certain hedge funds or investment partnerships.
Second, the proposed rule modifies the exemption for sales of hot issues to immediate family members of an associated person to prevent sales to any immediate family members if the associated person directly or indirectly provides material support to, or receives material support from, the immediate family member. The decision to include the receipt of support from an immediate family member avoids situations where a broker, in exchange for money or other support from his or her parents, allocates hot issues to them.
NASD Regulation believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6)
NASD Regulation does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
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 is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-99-60 and should be submitted by February 8, 2000.
For the Commission, by the Division of Market Regulations, pursuant to delegated authority.
United States Sentencing Commission.
Notice of proposed permanent amendments to the sentencing guidelines, policy statements, and commentary. Request for comment. Notice of public hearing.
The Commission hereby gives notice of the following actions: (1) Two options for amending § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, Trafficking, or Possession) to increase the penalties for methamphetamine offenses in response to the increased mandatory minimum penalties made by the Methamphetamine Trafficking Penalty Enhancement Act of 1998, Pub. L. 105-277; and (2) two options for amending § 2F1.1 (Fraud and Deceit) to implement the directive in the Identity Theft and Assumption Deterrence Act of 1998, Pub. L. 105-318.
The proposed amendments are presented in one of two formats. First, the amendments are proposed as specific revisions to the relevant guidelines and accompanying commentary. Bracketed text within a proposed amendment indicates that the Commission invites comment and suggestions for alternative policy choices; for example, a proposed enhancement of [2] levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. Second, the Commission has highlighted certain issues for comment and invites suggestions for how the Commission should respond to those issues.
(1) Proposed amendments.—Comment on the proposed amendments and issues for comment should be received by the Commission not later than March 10, 2000. (2) Public hearing.—The Commission has scheduled a public hearing for March 23, 2000, at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E. Washington, D.C. 20002-8002 (time to be announced). The scope of the hearing is expected to include all permanent amendments that are proposed for action in this amendment cycle ending May 1, 2000, including the proposed re-promulgation of the temporary, emergency telemarketing fraud amendment described in 64 FR 72129 (1999). A person who desires to testify at the public hearing should notify Michael Courlander, Public Affairs Officer, at (202) 502-4590 not later than March 10, 2000. Written testimony for the hearing must be received by the Commission not later than March 16, 2000. Submission of written testimony is a requirement for testifying at the public hearing.
Send comments to: United States Sentencing Commission, One Columbus Circle, NE, Suite 2-500 South, Washington, DC 20002-8002, Attention: Public Information-Public Comment.
Michael Courlander, Public Affairs Officer, Telephone: (202) 502-4590.
Reports and other additional information pertaining to the proposed amendments described in this notice may be accessed through the Commission's website at www.ussc.gov.
28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 4.3, 4.4.
(1) Synopsis of Proposed Amendment: This proposed amendment responds to the Methamphetamine Trafficking Penalty Enhancement Act of 1998, Pub. L. 105-277. That Act effectively increased the mandatory minimum sentences for methamphetamine trafficking offenses by cutting in half the quantities of methamphetamine mixture and methamphetamine substance (
Option 1 changes the calculations in the Drug Quantity Table in § 2D1.1 for methamphetamine substance (
Option 2 generally proposes to eliminate the distinction between methamphetamine-actual and
An issue for comment follows the presentation of the options regarding whether the Commission should consider making changes to the Drug Equivalency Table in § 2D1.1, relating to Phenylacetone/P2P, when possessed for the purpose of manufacturing methamphetamine, and whether it should change the Chemical Quantity Table in § 2D1.11, relating to any chemical referenced in that table that is used to manufacture methamphetamine, in order to reflect the increased harm associated with methamphetamine offenses.
Section 2D1.1(c)(1) is amended by striking “3 KG or more” before “of Methamphetamine (actual)” and inserting “1.5 KG or more” and by striking “3 KG or more” before “of ‘Ice’ ” and inserting “1.5 KG or more”.
Section 2D1.1(c)(2) is amended by striking “at least 1 KG but less than 3 KG” before “of Methamphetamine (actual)” and inserting “at least 500 G but less than 1.5 KG” and by striking “at least 1 KG but less than 3 KG” before “of ‘Ice’ ” and inserting “at least 500 G but less than 1.5 KG”.
Section 2D1.1(c)(3) is amended by striking “at least 300 G but less than 1 KG” before “of Methamphetamine (actual)” and inserting “at least 150 G but less than 500 G” and by striking “at least 300 G but less than 1 KG” before “of ‘Ice’ ” and inserting “at least 150 G but less than 500 G”.
Section 2D1.1(c)(4) is amended by striking “at least 100 G but less than 300 G” before “of Methamphetamine (actual)” and inserting “at least 50 G but less than 150 G” and by striking “at least 100 G but less than 300 G” before “of ‘Ice’ ” and inserting “at least 50 G but less than 150 G”.
Section 2D1.1(c)(5) is amended by striking “at least 70 G but less than 100 G” before “of Methamphetamine (actual)” and inserting “at least 35 G but less than 50 G” and by striking “at least 70 G but less than 100 G” before “of ‘Ice’ ” and inserting “at least 35 G but less than 50 G”.
Section 2D1.1(c)(6) is amended by striking “at least 40 G but less than 70 G” before “of Methamphetamine (actual)” and inserting “at least 20 G but less than 35 G” and by striking “at least 40 G but less than 70 G” before “of ‘Ice’ ” and inserting “at least 20 G but less than 35 G”.
Section 2D1.1(c)(7) is amended by striking “at least 10 G but less than 40 G” before “of Methamphetamine (actual)” and inserting “at least 5 G but less than 20 G” and by striking “at least 10 G but less than 40 G” before “of ‘Ice’ ” and inserting “at least 5 G but less than 20 G”.
Section 2D1.1(c)(8) is amended by striking “at least 8 G but less than 10 G” before “of Methamphetamine (actual)” and inserting “at least 4 G but less than 5 G” and by striking “at least 8 G but less than 10 G” before “of ‘Ice’ ” and inserting “at least 4 G but less than 5 G”.
Section 2D1.1(c)(9) is amended by striking “at least 6 G but less than 8 G” before “of Methamphetamine (actual)” and inserting “at least 3 G but less than 4 G”; and by striking “at least 6 G but less than 8 G” before “of ‘Ice’ ” and inserting “at least 3 G but less than 4 G”.
Section 2D1.1(c)(10) is amended by striking “at least 4 G but less than 6 G” before “of Methamphetamine (actual)” and inserting “at least 2 G but less than 3 G” and by striking “at least 4 G but less than 6 G” before “of ‘Ice’ ” and inserting “at least 2 G but less than 3 G”.
Section 2D1.1(c)(11) is amended by striking “at least 2 G but less than 4 G” before “of Methamphetamine (actual)” and inserting “at least 1 G but less than 2 G”; and by striking “at least 2 G but less than 4 G” before “of ‘Ice’ ” and inserting “at least 1 G but less than 2 G”.
Section 2D1.1(c)(12) is amended by striking “at least 1 G but less than 2 G” before “of Methamphetamine (actual)” and inserting “at least 500 MG but less than 1 G”; and by striking “at least 1 G but less than 2 G” before “of “Ice” and inserting “at least 500 MG but less than 1 G”.
Section 2D1.1(c)(13) is amended by striking “at least 500 MG but less than 1 G” before “of Methamphetamine (actual)” and inserting “at least 250 MG but less than 500 MG”; and by striking “at least 500 MG but less than 1 G” before “of ‘Ice” ’ and inserting “at least 250 MG but less than 500 MG”.
Section 2D1.1(c)(14) is amended by striking “less than 500 MG” before “of Methamphetamine (actual)” and inserting “less than 250 MG”; and by striking “less than 500 MG” before “of ‘Ice” ’ and inserting “less than 250 MG”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the subdivision of the “Drug Equivalency Tables” captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” in the line referenced to “Methamphetamine (Actual)” by striking “10 kg” and inserting “20 kg”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the subdivision of the “Drug Equivalency Tables” captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” in the line referenced to “Ice” by striking “10 kg” and inserting “20 kg”.
Section 2D1.1(c)(1) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“1.5 KG or more of Methamphetamine, or 1.5 KG or more of ‘Ice’;”.
Section 2D1.1(c)(2) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 500 G but less than 1.5 KG of Methamphetamine, or at least 500 G but less than 1.5 KG of ‘Ice’;”.
Section 2D1.1(c)(3) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 150 G but less than 500 G of Methamphetamine, or at least 150 G but less than 500 G of ‘Ice’;”.
Section 2D1.1(c)(4) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 50 G but less than 150 G of Methamphetamine, or at least 50 G but less than 150 G of ‘Ice’;”.
Section 2D1.1(c)(5) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 35 G but less than 50 G of Methamphetamine, or at least 35 G but less than 50 G of ‘Ice’ ”
Section 2D1.1(c)(6) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 20 G but less than 35 G of Methamphetamine, or at least 20 G but less than 35 G of ‘Ice’ ”.
Section 2D1.1(c)(7) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 5 G but less than 20 G of Methamphetamine, or at least 5 G but less than 20 G of ‘Ice’;”.
Section 2D1.1(c)(8) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 4 G but less than 5 G of Methamphetamine, or at least 4 G but less than 5 G of ‘Ice‘Ice’;”.
Section 2D1.1(c)(9) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 3 G but less than 4 G of Methamphetamine, or at least 3 G but less than 4 G of ‘Ice’”;.
Section 2D1.1(c)(10) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 2 G but less than 3 G of Methamphetamine, or at least 2 G but less than 3 G of ‘Ice‘Ice’;”.
Section 2D1.1(c)(11) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 1 G but less than 2 G of Methamphetamine, or at least 1 G but less than 2 G of ‘Ice‘Ice’;”.
Section 2D1.1(c)(12) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 500 MG but less than 1 G of Methamphetamine, or at least 500 MG but less than 1 G of ‘Ice‘Ice’;”.
Section 2D1.1(c)(13) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“At least 250 MG but less than 500 MG of Methamphetamine, or at least 250 MG but less than 500 MG of “Ice‘Ice’;”.
Section 2D1.1(c)(14) is amended by striking the line referenced to “Methamphetamine” in its entirety and inserting:
“Less than 250 MG of Methamphetamine, or less than 250 MG of “Ice’”.
Subsection 2D1.1(c) is amended in the part captioned “Notes to the Drug Quantity Table” in Note (B) in the first sentence by striking “and “Methamphetamine (actual)’ ”; by striking “refer” and inserting “refers”; and by striking ”, itself,”; and in the third sentence by striking “or methamphetamine”; and by striking “or methamphetamine (actual)”.
Subsection 2D1.1(c) is amended in the part captioned “Notes to the Drug Quantity Table” by redesignating Notes (C) through (J), as Notes (D) through (K), respectively; and by inserting after Note (B) the following new Note (C):
“(C) The term ‘Methamphetamine’ refers to the weight of the controlled substance contained in the mixture or substance. For example, a mixture weighing 10 grams containing Methamphetamine at 50% purity contains 5 grams of Methamphetamine. In any case in which the purity of the Methamphetamine contained in a mixture or substance is not known, it shall be presumed that the purity of the mixture or substance is [10%][20%][30%][40%][50%]. To calculate the quantity used to determine the offense level, multiply the entire weight of the mixture or substance by [10%][20%][30%][40%][50%]. The resulting quantity shall be used to determine the offense level.”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the subdivision of the “Drug Equivalency Tables” captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” by striking the line referenced to “Methamphetamine” in its entirety.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the subdivision of the “Drug Equivalency Tables” captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” in the line referenced to “Methamphetamine (Actual)” by striking “(Actual)”; and by striking “10 kg” and inserting “20 kg”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the subdivision of the “Drug Equivalency Tables” captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” in the line referenced to “Ice” by striking “10 kg” and inserting “20 kg”.
Issue for Comment: The Commission invites comment on whether it should change the Drug Equivalency Table in § 2D1.1, relating to Phenylacetone/P2P, when possessed for the purpose of manufacturing Methamphetamine, and whether it should change the Chemical Quantity Table in § 2D1.11, relating to any chemical referenced in that table that is used to manufacture Methamphetamine, in order to reflect the increased harm associated with Methamphetamine offenses. If so, what should those equivalencies be?
(2) Synopsis of Proposed Amendment: The Identity Theft and Assumption Deterrence Act of 1998 (the “Act”), Pub. L. 105-318, amended 18 U.S.C. § 1028 to criminalize the unauthorized use or transfer of a means of identification with the intent to commit or aid or abet any federal violation or state felony. In addition, the Act directed the Commission to “provide an appropriate penalty for each offense under section 1028 of title 18, United States Code.” In carrying out this directive the Act instructed the Commission to consider the following factors:
(1) the extent to which the number of victims (as defined in section 3663A(a) of title 18, United States Code) involved in the offense, including harm to reputation, inconvenience, and other difficulties resulting from the offense, is an adequate measure for establishing penalties under the Federal sentencing guidelines;
(2) the number of means of identification, identification documents, or false identification documents involved in the offense is an adequate measure for establishing penalties under the Federal sentencing guidelines;
(3) the extent to which the value of loss to any individual caused by the offense is an adequate measure for establishing penalties under the Federal sentencing guidelines;
(4) the range of conduct covered by the offense;
(5) the extent to which sentencing enhancements within the Federal sentencing guidelines and the court's authority to sentence above the applicable guideline range are adequate to ensure punishment at or near the maximum penalty for the most egregious conduct covered by the offense;
(6) the extent to which Federal sentencing guidelines sentences for the offenses have been constrained by statutory maximum penalties;
(7) the extent to which Federal sentencing guidelines for the offenses adequately achieve the purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code; and
(8) any other factor that the United States Sentencing Commission considers to be appropriate.
There are two options to implement this directive. Option 1 provides a two-prong enhancement, with a two-level increase and a minimum offense level of [10][11][12][13], if the offense involved (A) the use of any identifying information of an individual victim to obtain or make any unauthorized identification means of that individual
Several issues for comment follow the presentation of the options.
Section 2F1.1(b) is amended by redesignating subdivisions (6) and (7) as subdivisions (7) and (8), respectively; and by inserting after subdivision (5) the following new subdivision (6):
(6) If the offense involved (A) the use of any identifying information of an individual victim to obtain or make any unauthorized identification means of that individual victim; or (B) the possession of [5] or more unauthorized identification means, increase by [2] levels. If the resulting offense level is less than level [10][11][12][13], increase to level [10][11][12][13].”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended by striking Note 8(c) in its entirety and inserting:
(c) Consequential Damages in Procurement Fraud Cases, Product Substitution Cases, and Cases Involving Unauthorized Identification Means
In contrast to other types of cases, loss in a case involving procurement fraud, product substitution, or unauthorized identification means includes not only direct damages, but also consequential damages that were reasonably foreseeable. For example, in a case involving a defense product substitution offense, the loss includes the government's reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered or retrofitting the product so that it can be used for its intended purpose, plus the government's reasonably foreseeable cost of rectifying the actual or potential disruption to government operations caused by the product substitution. In the case of fraud affecting a defense contract award, loss includes the reasonably foreseeable administrative cost to the government and other participants of repeating or correcting the procurement action affected, plus any increased cost to procure the product or service involved that was reasonably foreseeable. Similarly, in a case involving unauthorized identification means, loss includes any reasonably foreseeable, consequential damages incurred by the individual victim. For example, such damages include attorneys fees, travel expenses, costs of duplicating records, long distance phone calls, or any other costs incurred to repair a damaged credit record.
Inclusion of reasonably foreseeable consequential damages directly in the calculation of loss in procurement fraud and product substitution cases reflects that such damages frequently are substantial in such cases. Inclusion of such damages directly in the calculation of loss in an offense involving unauthorized identification means reflects the seriousness of the offense, particularly with respect to the individual victim, regardless of whether the loss to the individual victim is substantial.”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended by striking Note 12 in its entirety and inserting:
“12. Offenses involving access devices, in violation of 18 U.S.C. § 1029, are also covered by this guideline. In such a case, an upward departure may be warranted when the actual loss does not adequately reflect the seriousness of the conduct.”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended by redesignating Notes 16 through 20 as Notes 18 through 22, respectively; and by inserting after Note 15 the following new Notes 16 and 17:
“16. For purposes of subsection (b)(6) and Application Note 8(c)—
‘Identifying information’ means any ‘means of identification’ as that term is defined in 18 U.S.C. § 1028(d)(3).
‘Individual victim’ means an individual, other than the defendant or any individual involved in the jointly undertaken criminal activity, whose identifying information was used to obtain or make an unauthorized identification means. ‘Individual victim’ does not include a fictitious individual.
‘Unauthorized identification means’ means any identifying information that has been obtained or made from any other identifying information without the authorization of the individual victim whose identifying information appears on, or as part of, that unauthorized identification means. For example, in a case involving a credit card that had been obtained by using the name, date of birth, and social security number of an individual victim, the ‘unauthorized identification means’ would be the credit card and the ‘other identifying information’ would be the individual victim's name, date of birth, and social security number.
17. Offenses involving identification documents and means of identification, in violation of 18 U.S.C. § 1028, are covered by this guideline. If (A) the offense involved unauthorized identification means, or the unlawful production, transfer, possession, or use of an identification document; and (B) the primary purpose of the offense was to violate, or assist another to violate, the law pertaining to naturalization, citizenship, or legal resident status, apply § 2L2.1 or § 2L2.2, as appropriate, rather than § 2F1.1.
Subsection (b)(6)(A) provides an enhancement in any case in which any identifying information of an individual victim is used, without that individual's authorization, to obtain or make an unauthorized identification means. This subsection would apply, for example, when a defendant obtains another individual's name and social security number from a source (
Subsection (b)(6)(B) provides an enhancement in any case in which the offense involved the possession of [five] or more unauthorized identification means. The enhancement applies regardless of whether the possession is with respect to one individual victim or more than one individual victim. For example, the enhancement applies if the offense involved (A) the possession of
In a case involving unauthorized identification means, an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense. Examples may include the following:
(a) an individual victim is erroneously arrested because the defendant used an unauthorized identification means of the victim in connection with some criminal conduct, or the individual victim is denied a job because an arrest record has been made in the victim's name;
(b) the extent of the offense conduct is such that the defendant established or made numerous unauthorized identification means with respect to one individual victim, essentially assuming and living under that victim's identity.”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended in Note 20, as redesignated by this amendment (formerly Note 18), by striking “(7)” and inserting “(8)”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended in Note 22, as redesignated by this amendment (formerly Note 20), by striking “(b)(7)(A) or (B)” and inserting “(b)(6) or (b)(8)(A) or (B)”.
The Commentary to § 2F1.1 captioned “Background” is amended by inserting after the fifth paragraph the following new paragraphs:
“A minimum offense level of [10][11][12][13] is provided in subsection (b)(6) for offenses involving unauthorized identification means, in part, because of the seriousness of the offense. The minimum offense level accounts for the fact that the unauthorized identification means often are within the defendant's exclusive control, making it difficult for the individual victim to detect that his or her identity has been ‘stolen’ and used to obtain or make unauthorized identification means. Generally, the individual victim does not become aware of the offense until certain harms have already occurred (
Subsection (b)(6) implements the instruction to the Commission in section 4 of Public Law 105-318.”.
The Commentary to § 2F1.1 captioned “Background” is amended in the ninth paragraph (formerly the seventh paragraph) by striking “(6)” and inserting “(7)”.
The Commentary to § 2F1.1 captioned “Background” is amended in the tenth paragraph (formerly the eighth paragraph) by striking “(7)” and inserting “(8)”.
The Commentary to § 2F1.1 captioned “Background” is amended in the eleventh paragraph (formerly the ninth paragraph) by striking “(7)” and inserting “(8)”.
Section 2F1.1(b) is amended by redesignating subdivision (7) as subdivision (9); and by inserting after subdivision (6) the following new subdivisions (7) and (8):
(7) If the offense involved (A) harm to an individual's reputation or credit standing, inconvenience related to the correction of records or restoration of an individual's reputation or credit standing, or similar difficulties; and (B) such harm, inconvenience, or difficulties were more than minimal, increase by 2 levels. If the resulting offense level is less than level [10] [12], increase to level [10] [12].
(8) If the offense involved the production or transfer of 6 or more identification documents, false identification documents, or means of identification, increase by 2 levels. Do not apply this increase if the defendant's conduct also resulted in an increase under subdivision (1).”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended in Note 12 in the first sentence by inserting “, means of identification,” after “identification documents”; in the second sentence by inserting “or means of identification” after “identification documents”; and in the third sentence by striking “false identification documents or”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended by redesignating Notes 16 through 20 as Notes 17 through 21, respectively; and by inserting after Note 15 the following new Note 16:
“16. Subsection (b)(7) provides an upward adjustment of 2 levels and a floor of level [10] [12] for harm to an individual's reputation or credit standing, inconvenience related to the correction of records or restoration of an individual's reputation or credit standing, or similar difficulties. However, such harm, inconvenience, or similar difficulties must be more than minimal in order to qualify. Thus, for example, neither an individual's speculation about potential harm to his or her reputation or credit standing nor a single, negative credit entry that was corrected in a short time would qualify for the 2-level adjustment under this subsection, but a showing of multiple, negative credit entries or a poor credit rating would. If the offense involved a level of harm, inconvenience, or other difficulty not adequately addressed by subsection (b)(7) or by § 2F1.1 in general, an upward departure may be warranted. For example, if the wrong person were arrested because of the fraudulent use of such person's means of identification by another, or if an individual's identity were completely taken over by another, an upward departure would be warranted to recognize the extraordinary harm to the victim's reputation or the resulting inconvenience in the restoration of his or her reputation or the necessary correction of records. Moreover, harm of the type described in subsection (b)(7) to a significant number of individuals would also warrant an upward departure.”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended in Note 19, as redesignated by this amendment (formerly Note 18), by striking “(7)” and inserting “(9)”.
The Commentary to § 2F1.1 captioned “Application Notes” is amended in Note 21, as redesignated by this amendment (formerly Note 20), by striking “(7)” and inserting “(9)”.
The Commentary to § 2F1.1 captioned “Background” is amended in the eighth and ninth paragraphs by striking “(7)” and inserting “(9)” each place it appears.
The Commission invites comment on the following issues pertaining to identity theft:
1. The proposed amendment in Option 1 provides a two-level enhancement in the fraud guideline for the possession of [5] or more unauthorized identification means. The enhancement, as proposed, applies regardless of whether the offense involves the possession of unauthorized identification means of one individual victim or more than one individual victim as long as at least [5] unauthorized identification means were possessed. Should the Commission consider providing an additional part to the proposed enhancement that would increase sentences based on the number of individual victims involved in the offense? If so, on what number of
The Commission also invites comment on whether it should provide an additional increase, cumulative to the 2-level increase already proposed in Option 1, for cases involving specified numbers of individual victims or unauthorized identification means. For example, such an enhancement could provide an additional [4-level] enhancement if the offense involved more than [10-25] unauthorized identification means and/or more than [5-25] individual victims. Alternatively, should the Commission provide an upward departure for cases involving a large number of unauthorized identification means and/or a large number of individual victims?
2. The proposed amendment in Option 1 limits the enhancement for identity theft to the fraud guideline. Given the breadth of offense conduct covered by 18 U.S.C. § 1028, should the Commission also provide a similar sentencing increase (including, if appropriate, an enhancement that ties offense level increases to specified numbers of identification means) for identity theft conduct in [any or] all other economic crime guidelines (
3. Given the breadth of offense conduct covered by 18 U.S.C. § 1028, as an alternative to amending Chapter Two, should the Commission amend Chapter Three of the Guidelines Manual, relating to general adjustments, to provide a new adjustment that would apply in every case that involves the unauthorized use of an identification means? If so, how should that adjustment be structured (e.g., should there be a table or tiered adjustment based on the number of unauthorized identification means involved in the offense)? Should the adjustment also include the unauthorized use of any identification document or the use of any false identification document?
4. As an alternative to a Chapter Three adjustment, should the Commission amend Chapter Five, Part K, of the Guidelines Manual, relating to departures, to encourage a departure above the authorized guideline sentence in any case involving the unauthorized use of an identification means if the guideline range does not adequately reflect the seriousness of the offense conduct?
5. The Treasury Department has recommended that the Commission amend its current minimum loss amount rule for stolen credit card offenses in § 2B1.1 (a minimum loss amount of $100 per credit card) to include all access devices, and that the minimum loss amount be increased to $1000 per access device. Given that the Identity Theft and Assumption Deterrence Act of 1998 included access devices in the definition of “means of identification,” the Commission invites comment on whether it should consider amending that rule to include all access devices (such as debit cards, bank account numbers, electronic serial numbers, and mobile identification numbers) and to place that amended rule in § 2F1.1. Such a rule would have the effect of subjecting an offense that involves an unauthorized identification means that is a credit card number to the same minimum loss amount as an offense that involves the stolen credit card itself. If the Commission should consider such an amendment, should the Commission additionally amend the rule to increase the minimum loss amount per access device, for example [$500][$750][$1000] per access device? (Such an amendment may need to be coordinated with efforts to revise the theft guideline in connection with offenses involving access devices and cellular phone cloning.)
6. Commission data indicate that a high portion of offenders involved in identity theft conduct have previously been convicted of similar offense conduct at either the state or federal level. Although Chapter Four addresses criminal history, the Commission has provided enhancements in certain Chapter Two guidelines for prior similar conduct (e.g., §§ 2L2.1(b)(4) and 2L2.2(b)(2), which provide two- and four-level increases if “the defendant committed any part of the instant offense after sustaining one or more convictions for felony immigration and naturalization offenses”). Should the Commission provide an enhancement in the relevant Chapter Two guideline (§ 2F1.1, if the Commission adopts a limited approach to identity theft) or guidelines (the economic crime guidelines, if the Commission adopts a more expansive approach to identity theft) if the defendant had previously been convicted of conduct similar to identity theft? If so, what is the appropriate number of levels for the enhancement? Should such an enhancement require a minimum offense level?
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985, 22 U.S.C. 2459 ), the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of exhibit objects, contact Carol Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-619-6981). The address is U.S. Department of State, SA-44; 301-4th Street, S.W., Room 700, Washington, D.C. 20547-0001.
United States Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985, 22 U.S.C. 2459), the Foreign Affairs Reform and
For further information, including a list of exhibit objects, contact Carol Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-619-6981). The address is U.S. Department of State, SA-44; 301-4th Street, S.W., Room 700, Washington, D.C. 20547-0001.
The Working Group on Stability and Load Lines and on Fishing Vessels Safety of the Subcommittee on Safety of Life at Sea will conduct an open meeting at 9 a.m. on Monday, January 31, 2000, in Room 6103, at U.S. Coast Guard Headquarters, 2100 Second Street, SW, Washington, DC 20593-0001. This meeting will discuss the upcoming 43RD Session of the Subcommittee on Stability and Load Lines and on Fishing Vessels Safety (SLF) and associated bodies of the International Maritime Organization (IMO) which will be held on September 11-15, 2000, at the IMO Headquarters in London, England.
Items of discussion will include the following:
a. Review of results from last SLF meeting (SLF 42),
b. Harmonization of damage stability provisions in the IMO instruments,
c. Revision of technical regulations of the 1966 International Load Line Convention,
d. Revision of the High Speed Craft Code,
e. Development of the damage consequence diagrams for inclusion in damage control plan guidelines, and
f. Revisions to the Fishing Vessel Safety Code and Voluntary Guidelines
Members of the public may attend this meeting up to the seating capacity of the room. Interested persons may seek information by writing: Mr. Paul Cojeen, U.S. Coast Guard Headquarters, Commandant (G-MSE-2), Room 1308, 2100 Second Street, SW, Washington, DC 20593-0001 or by calling (202) 267-2988.
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Application.
The FAA proposes to rule and invites public comment on the application to use the revenue from a PFC at Hector International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received or before February 17, 2000.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Federal Aviation Administration, Bismarck Airports District Office, 2000 University Drive, Bismarck, North Dakota 58504.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Shawn Dobberstein, Executive Director, of the Municipal Airport Authority, Fargo, North Dakota at the following address: Municipal Airport Authority, P.O. Box 2845, Fargo, North Dakota 58108.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Municipal Airport Authority, Fargo, North Dakota under § 158.23 of Part 158.
Ms. Irene R. Porter, Manager, Bismarck Airports District Office, 2000 University Drive, Bismarck, North Dakota 58504, (701) 250-4385. The application may be reviewed in person at this same location.
The FAA proposes to rule and invite public comment on the application to use the revenue from a PFC at Hector International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
On December 29, 1999, the FAA determined that the application to use the revenue from a PFC submitted by the Municipal Airport Authority, Fargo, North Dakota was substantially complete within the requirements of § 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than March 29, 2000.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under “
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Municipal Airport Authority, Fargo, North Dakota—Executive Directors offices at the Hector International Airport.
Issued in Des Plaines, Illinois on January 5, 2000.
Federal Highway Administration (FHWA), DOT.
Withdrawal of Notice of Intent.
The FHWA is issuing this notice to advise the public that the Notice of Intent to prepare an environmental impact statement (EIS) for the proposed highway project in Jefferson Parish, Louisiana has been withdrawn. The Louisiana DOTD is not planning to pursue the project as proposed.
Mr. William C. Farr, Program Operations Manager, Federal Highway Administration, 5304 Flanders Drive, Suite A, Baton Rouge, Louisiana 70808 or Ms. Michele Deshotels, Environmental Impact Program Manager, Louisiana Department of Transportation and Development, Section 28, P.O. Box 94245, Baton Rouge, Louisiana 70804-9245, Telephone: (225) 929-9190.
A Notice of Intent was published (
Alternatives considered were: (1) No build; (2) a controlled access facility on structure; (3) a controlled access facility on embankment; and (4) upgrading LA-45 and a new bridge across Bayou Barataria between Jean Lafitte and Barataria.
There were no plans to hold a formal scoping meeting for the proposed actions. A public hearing would have been held at a convenient time and place for persons in the project area after the Draft Environmental Impact Statement had been circulated. The hearing would have been announced through the local news media.
Comments and suggestions concerning the proposed action and the EIS were invited to be directed to the FHWA or Louisiana Department of Transportation and Development.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Railroad Safety Advisory Committee (“RSAC”) meeting.
FRA announces the next meeting of the RSAC, a Federal Advisory Committee that develops railroad safety regulations through a consensus process. The meeting will address a wide range of topics, including possible adoption of specific recommendations for regulatory action.
The meeting of the RSAC is scheduled to commence at 9:30 a.m. and conclude at 4 p.m. on Friday, January 28, 2000.
The meeting of the RSAC will be held at The Wyndham Washington DC Hotel, 1400 M Street NW, Washington, DC, (202) 429-1700. The meeting is open to the public on a first-come, first-served basis and is accessible to individuals with disabilities. Sign language interpreters can be made available for individuals with hearing impediments.
Vicky McCully, RSAC Coordinator, FRA, 1120 Vermont Avenue, NW, Stop 25, Washington, DC 20590, (202) 493-6305 or Grady Cothen, Deputy Associate Administrator for Safety Standards and Program Development, FRA, 1120 Vermont Avenue, NW, Stop 25, Washington, DC 20590, (202) 493-6302.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), FRA is giving notice of a meeting of the Railroad Safety Advisory Committee (“RSAC”). The meeting is scheduled to begin at 9:30 a.m. and conclude at 4 p.m. on Wednesday, September 8, 1999. The meeting will be held at The Wyndham Hotel, 1400 M Street, NW, Washington, DC. All times noted are Eastern Standard Time.
RSAC was established to provide advice and recommendations to the FRA on railroad safety matters. The Committee consists of 48 individual representatives, drawn from among 27 organizations representing various rail industry perspectives, and 2 associate non-voting representatives from the agencies with railroad safety regulatory responsibility in Canada and Mexico. Staff of the National Transportation Safety Board and Federal Transit Administration also participate in an advisory capacity.
During this meeting, FRA may request the RSAC to accept tasks addressing safety issues related to rail operations on the Northeast Corridor and revising the regulations governing the protection of employees engaged in the inspection, testing, repair and servicing of rolling equipment (49 CFR part 218, subpart B). FRA intends to present a Planning Task examining the issue of qualification and certification of safety-critical employees to the RSAC for consideration and acceptance.
The RSAC will be briefed on the current status of activities of RSAC working groups and task forces responsible for carrying out tasks the RSAC has accepted involving locomotive cab working conditions, positive train control, the definition of reportable “train accident”, incorporation of provision for gage restraint measurement within the Track Safety Standards, and locomotive crashworthiness. The Committee may be asked to authorize mail ballot approval of one or more proposed rule documents involving these topics.
Informational briefings on general safety-related issues including Safety Assurance and Compliance Program initiatives, the findings and recommendations of the Switching Operations Fatality Analysis Working Group, Department of Transportation proposals for changes to alcohol and drug testing procedures, a recent National Transportation Safety Board recommendation on crew resource management training programs, and the proposed requirement concerning train horns at public highway-rail grade crossings, will be provided.
Please refer to the notice published in the
Issued in Washington, DC.
R.J. Corman Railroad Company/Memphis Line (RJCM), a Class III common carrier by rail, has filed a verified notice of exemption under 49 CFR 1150.31 to operate an abandoned rail line extending from former milepost LF-182.50, at Zinc, TN, to former milepost LF-199.08, at Cumberland City, TN, a distance of approximately 16.58 miles in Montgomery and Stewart Counties, TN.
The exemption became effective on December 30, 1999, 7 days after the exemption was filed.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 33841, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Thomas J. Litwiler, Oppenheimer Wolff & Donnelly (Illinois), Two Prudential Plaza, 45th Floor, 180 North Stetson Avenue, Chicago, IL 60601-6710.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
By the Board, David M. Konschnik, Director, Office of Proceedings.
Union Pacific Railroad Company (UP) has agreed to grant overhead trackage rights to The Burlington Northern and Santa Fe Railway Company (BNSF) over UP's rail line between Stockton, CA, in the vicinity of UP's milepost 82.3 (Fresno Subdivision), and Fresno, CA, in the vicinity of UP's milepost 207.0 (Fresno Subdivision). BNSF will operate its own trains with its own crews over UP's line under the trackage rights agreement.
The transaction is scheduled to be consummated on or shortly after January 15, 2000.
The purpose of the trackage rights is to allow BNSF to operate over an alternate line while BNSF's lines are undergoing maintenance and repair.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 33833, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, N.W., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Yolanda Grimes Brown, Esq., The Burlington Northern and Santa Fe Railway Company, P.O. Box 961039, Fort Worth, TX 76161-0039.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
By the Board, David M. Konschnik, Director, Office of Proceedings.
Department of the Treasury.
Notice of reporting requirements.
By this Notice, the Department of the Treasury is informing the public that it is conducting a mandatory survey of foreign holdings of United States securities as of March 31, 2000. This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, this survey. United States persons who meet the reporting requirements but who do not receive a set of the survey forms and instructions should contact the Federal Reserve Bank of New York, acting as fiscal agent for the Department of the Treasury, at (212) 720-8211 to obtain a copy.
DEFINITION: A U.S. person is any individual, branch, partnership, associated group, association, estate, trust, corporation, or other organization (whether or not organized under the laws of any State), and any government (including a foreign government, the United States Government, a state,
WHO MUST REPORT: The following U.S. persons must report on this survey:
WHAT TO REPORT: The survey will measure foreign holdings of all equity securities, and all debt securities with an original term-to-maturity in excess of one year.
HOW TO REPORT: Copies of the survey forms and instructions, which contain complete information on reporting procedures, can be obtained by contacting Mr. Tony Alvarez at (212) 720-8211 or the survey staff at (212) 720-6300, e-mail: tony.alvarez@ny.frb.org or inbound.help@ny.frb.org. The mailing address is: Federal Reserve Bank of New York, Foreign Portfolio Investment Unit, Second Floor, 33 Liberty Street, New York, NY 10045-0001. Inquiries can also be made to Mr. William L. Griever, Federal Reserve Board of Governors, at (202) 452-2924, e-mail: william.l.griever@frb.gov; or to Dwight Wolkow at (202) 622-1276, e-mail: wolkowd@do.treas.gov.
WHEN TO REPORT: Data should be submitted to the Federal Reserve Bank of New York, acting as fiscal agent for the Department of the Treasury, by June 30, 2000.
PAPERWORK REDUCTON ACT NOTICE: This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 1505-0123. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. The estimated average annual burden associated with this collection of information is 16 hours per respondent for exempt reporters, 40 hours per respondent for issuers of securities, and 160 hours per respondent for custodians of securities. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Department of the Treasury, Attention Administrator, International Portfolio Investment Data Systems, Room 5205 MT, Washington, D.C. 20220, and to OMB, Attention Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, D.C. 20503.
Environmental Protection Agency (EPA).
Final rule.
In accordance with section 126 of the Clean Air Act (CAA), EPA is taking final action on petitions filed by eight Northeastern States seeking to mitigate interstate transport of nitrogen oxides (NO
Based on affirmative technical determinations for the 1-hour ozone NAAQS made in the May 25 rule, today, EPA is making section 126 findings that a number of large electric generating units (EGUs) and large industrial boilers and turbines named in the petitions emit in violation of the CAA prohibition against significantly contributing to nonattainment or maintenance problems in the petitioning States. The EPA is staying indefinitely the affirmative technical determinations based on the 8-hour ozone NAAQS, pending further developments in the NAAQS litigation.
The EPA is also finalizing the Federal NO
The final rule is effective February 17, 2000.
Documents relevant to this action are available for inspection at the Air and Radiation Docket and Information Center (6102), Attention: Docket No. A-97-43, U.S. Environmental Protection Agency, 401 M Street SW, room M-1500, Washington, DC 20460, telephone (202) 260-7548 between 8:00 a.m. and 5:30 p.m., Monday though Friday, excluding legal holidays. A reasonable fee may be charged for copying.
General questions concerning today's action should be addressed to Carla Oldham, Office of Air Quality Planning and Standards, Air Quality Strategies and Standards Division, MD-15, Research Triangle Park, NC 27711, telephone (919) 541-3347, email at oldham.carla@epa.gov. Please refer to
The official record for this rulemaking, as well as the public version, has been established under docket number A-97-43 (including comments and data submitted electronically as described below). A public version of this record, including printed, paper versions of electronic comments, which does not include any information claimed as confidential business information, is available for inspection from 8:00 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays. The official rulemaking record is located at the address in
The EPA has issued a separate rule on NO
For additional information related to air quality analysis, please contact Carey Jang, Office of Air Quality Planning and Standards; Emissions, Monitoring, and Analysis Division, MD-14, Research Triangle Park, NC 27711, telephone (919) 541-5638. For questions regarding the NO
In a notice of final rulemaking (NFR) signed on April 30, 1999 and published on May 25, 1999 (May 25 NFR or May 25, 1999 final rule), EPA took action on eight ozone-related petitions submitted individually by eight northeastern States under section 126 of the CAA(64 FR 28250; May 25, 1999). As discussed in Section II.A. of the May 25 NFR, section 126 of the CAA authorizes a downwind State to petition EPA for a finding that any new (or modified) or existing major stationary source or group of stationary sources upwind of the State emits or would emit in violation of the prohibition of section 110(a)(2)(D)(i) because their emissions contribute significantly to nonattainment, or interfere with maintenance, of a NAAQS in the State. Sections 110(a)(2)(D)(i), 126(b)-(c). If EPA makes the requested finding, the sources must shut down within 3 months from the finding unless EPA directly regulates the sources by establishing emissions limitations and a compliance schedule, extending no later than 3 years from the date of the finding, to eliminate the prohibited interstate transport of pollutants as expeditiously as possible. See sections 110(a)(2)(D)(i) and 126(c).
The States that petitioned EPA under section 126 (addressed by today's final rule) are Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Pennsylvania, and Vermont. Each petition requests that EPA make a finding that certain major stationary sources or groups of sources in upwind States emit NO
In the May 25 NFR, EPA made final determinations that six of the eight petitions have technical merit. The EPA made affirmative determinations that existing and new large electric generating units (EGUs) and large industrial boilers and turbines (non-EGUs) located in certain States identified in the section 126 petitions are significantly contributing to nonattainment in, or interfering with maintenance by, one or more of the petitioning States with respect to the 1-hour and/or 8-hour ozone standards. Under the 1-hour standard, EPA made affirmative technical determinations of significant contribution for sources located in the District of Columbia and 12 States. Under the 8-hour standard, EPA made affirmative technical determinations of significant contribution for sources located in the same States and the District of Columbia as under the 1-hour standard plus seven additional States.
In the May 25 NFR, EPA also denied the portions of the petitions that did not have technical merit. Under the 1-hour standard, EPA fully denied the petitions from Rhode Island, Maine, New Hampshire, and Vermont because the States had clean air quality. The EPA fully denied the Vermont petition under the 8-hour standard because that State did not have any current or projected 8-hour air quality problems.
The EPA also provided that the portions of the petitions for which EPA made affirmative technical determinations would be automatically deemed granted (the section 126 findings made) or denied at certain later dates pending certain actions by the States and EPA regarding State submittals in response to the final NO
As discussed in Section IV of the May 25 NFR, EPA was required under a consent decree to take final action on the eight petitions by April 30, 1999, including promulgating a control remedy for sources that would be subject to an affirmative finding under section 126. In a proposal published on October 21, 1998 (63 FR 56292), EPA proposed a NO
On January 13, 1999 (64 FR 2416), EPA reopened the comment period on the section 126 proposal, to take further comment on source-specific emission inventory data. This comment period was established in conjunction with the extended period for the public to submit emissions inventory revisions for the purpose of the NO
The EPA finalized a default remedy in the May 25 NFR that would apply to affected sources in the event that EPA failed to finalize the trading program prior to any section 126 findings being triggered. The EPA emphasized that it did not expect that the default remedy would ever be applied, because EPA fully intended to complete the trading program and delete the default remedy by the time any findings were made.
After EPA signed the section 126 final rule on April 30, 1999 (published on May 25, 1999), the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued two rulings related to the 8-hour ozone standard and the NO
In response to these rulings, EPA stayed the effectiveness of the May 25 NFR until November 30, 1999 while it conducted a parallel rulemaking to address issues raised by the court rulings (64 FR 33956; June 24, 1999).
On June 24, 1999 (64 FR 33962), EPA proposed to amend two aspects of the May 25 NFR. The EPA proposed to stay indefinitely the affirmative technical determinations based on the 8-hour standard pending further developments in the NAAQS litigation. The EPA also proposed to remove the trigger mechanism for making section 126 findings that was based on the NO
The EPA notes it received several comments on the June 24, 1999 proposal that the Agency considers to be outside the scope of that proposal. These comments relate primarily to issues that have been addressed previously either in the NO
On August 9, 1999 (64 FR 43124), EPA issued a notice of data availability and request for comment on three sets of data related to the proposed Federal NO
In today's rule, EPA is finalizing the modifications to the May 25 NFR that were proposed on June 24, 1999. The EPA is also finalizing the Federal NO
In Section II, EPA discusses the delinking of the section 126 rule from the NO
The sources for which EPA is making section 126 findings must comply with the control requirements of the Federal NO
In a separate action, EPA extended the stay of the May 25, 1999 rule until January 10, 2000. (See 64 FR 67781; December 3, 1999.) EPA will publish a further stay to ensure that the May 25, 1999 rule remains stayed until today's rule becomes effective.
One factor of the significant-contribution analysis that EPA applied in the May 25, 1999 final rule is the extent to which “highly cost-effective” NO
For purposes of the May 25, 1999 final rule, EPA used cost-effectiveness values developed for the final NO
Some commenters have argued that EPA must redo its analysis of the cost-effectiveness of controls to reflect the modified scope of the section 126 rule due to the stay of the 8-hour affirmative technical determinations. Commenters argued that EPA has underestimated the costs for utility NO
As discussed below, EPA has now revised the cost-effectiveness numbers based on the revised inventories to reflect the 13 jurisdictions covered by today's section 126 final action under the 1-hour standard. Even with the reduced scope of the section 126 rule, the cost-effectiveness numbers are similar to those presented in the May 25, 1999 final rule and support the technical determinations EPA made in that rule. In addition, EPA continues to use the same cost-effectiveness methodology for today's rule as it used in the May 25, 1999 final rule, the October 21, 1998 section 126 proposed rule, and the NO
In determining what, if any, highly cost-effective mix of controls is available for each subcategory named by the petitioning Sates (
The average cost effectiveness of the controls was calculated from a baseline level that included all currently applicable Federal or State NO
Table I-1 summarizes the control options investigated for the subcategories covered by today's rule and the resulting average, regionwide cost effectiveness estimates based on the revised inventories. Additionally, the cost-effectiveness analysis includes a consideration of each subcategory's growth, including new sources. The cost-effectiveness numbers are similar to those presented in the May 25, 1999 final rule (64 FR at 28300). Therefore, based on this component of the significant contribution test, there is no reason to revise any of the significant contribution determinations.
The following discussion explains the control levels determined by EPA to be highly cost effective for each subcategory.
As discussed in the May 25, 1999 final rule (64 FR at 28300), in determining the cost of NO
In the May 25, 1999 final rule (64 FR at 28300-1), EPA discussed the reasons the Agency has decided to base the emission reduction requirements for EGUs on a 0.15 lb/mmBtu trading level of control. Because the average cost-effectiveness for the three levels analyzed has not changed significantly, EPA maintains that a 0.15 lb/mmBtu trading level of control is appropriate for the reasons identified in the May 25, 1999 rule. This control level has an average cost effectiveness of $1,720 per ozone season ton removed in 1997 dollars ($1,432 per ozone season ton removed in 1990 dollars). This amount is consistent with the range for cost effectiveness that EPA has derived from recently adopted (or proposed to be adopted) control measures. See 64 FR at 28299.
As discussed in the May 25, 1999 final rule (64 FR at 28301), EPA determined a highly cost-effective control level for large non-EGUs by evaluating a uniform percent reduction in increments of 10 percent. Details regarding the methodologies used are in the Regulatory Impact Analysis. Table I-1 summarizes the control levels and resulting cost effectiveness for these non-EGUs based on the revised inventories for sources covered by the 1-hour findings.
For non-EGU sources, EPA used a least-cost method which is equivalent to an assumption of an interstate trading program. Under this method, the least costly controls, in terms of total annual cost per ozone season ton removed, across the entire set of feasible source-control measure combinations are selected in order of increasing annual compliance costs per ton, consistent with the above-described range for cost effectiveness.
For large non-EGUs, the cost-effectiveness analysis includes estimates of the additional emissions monitoring costs that sources would incur in order to participate in a trading program. Some non-EGUs already monitor their emissions. These costs are defined in terms of dollars per ton of NO
The average cost effectiveness for the three levels analyzed has not changed significantly from the May 25, 1999 final rule (64 FR at 28301). Therefore, based on this component of the significant contribution test, there is no reason to revise any of the significant contribution determinations. As determined in the May 25, 1999 final rule, a control level corresponding to 60 percent reduction from baseline levels is highly cost effective. This percent reduction corresponds to a regionwide average control level of about 0.17 lb/mmBtu.
As noted above, section 110(a)(2)(D) prohibits sources from emitting air pollutants in amounts that will, “contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to [any] national * * * ambient air quality standard” [emphasis added]. Each of the petitions requested that EPA make findings with respect to both nonattainment and maintenance of the 1-hour and/or 8-hour ozone standards in the petitioning State. In the May 25 final rule, EPA determined that a State may petition under section 126 for both the 1-hour standard, to the extent that it still applied in the petitioning State, and the 8-hour standard. The EPA indicated that in areas for which EPA had determined that the 1-hour standard no longer applies, there would no longer be a basis for EPA to make section 126(b) findings with respect to nonattainment or maintenance of that standard. In light of recent court action discussed below, EPA has proposed to reinstate the 1-hour standard. Thus, if EPA finalizes the rule as proposed, all areas would be subject to that standard along with the requirements to meet and maintain it.
Once EPA finalizes its action to reinstate the 1-hour standard, the “interfere with maintenance” test could be applied under both the 1-hour and 8-hour standards. The areas in the petitioning States that are currently subject to and violating the 1-hour standard need not only achieve the 1-hour standard, but would also need to maintain it. Upwind NO
In April through June of 1999, EPA received four new ozone-related section 126 petitions submitted individually by the District of Columbia, Delaware, Maryland, and New Jersey (see docket number A-99-21). All four of the petitions requested that EPA make findings that NO
The EPA is making final section 126 findings on the eight petitions under the 1-hour standard based on the affirmative technical determinations made in the May 25 NFR. The EPA is removing the automatic trigger mechanism for making the findings that was established in the May 25 NFR, and instead is simply making the findings in today's rule. EPA evaluated the petitions independently under the 1-hour and 8-hour standards where a State requested a finding under both standards. The EPA is staying the affirmative technical determinations with respect to the 8-hour standard in light of the recent court decision on that standard. Sources subject to findings under the 1-hour standard will be required to implement controls beginning in May 2003. Each of these actions is described below.
Because it is no longer appropriate to link the section 126 action to the NO
In the May 25 NFR, EPA made affirmative technical determinations as to which of the new (or modified
In the May 25 final rule, EPA had linked its findings under section 126 to the compliance schedule for the NO
In the June 24 proposal, EPA proposed to delete this automatic trigger mechanism for making findings and instead simply take final action making findings and granting or denying the petitions. For those sources for which it had made affirmative technical determinations, EPA proposed to find that the sources are emitting in violation of section 110(a)(2)(D)(i) and to grant those portions of the petitions. Consistent with these proposed findings, EPA also proposed to remove the automatic trigger mechanism.
In today's action, EPA is finalizing this portion of the rule largely as proposed. However, under this final rule, instead of making the findings based on the 8-hour standard, EPA is indefinitely staying the affirmative technical determinations based on the 8-hour standard, as discussed below. The affirmative technical determinations under the 1-hour standard were based
The EPA believes that the circumstances under which the linkage between action on the section 126 petitions and the NO
EPA's actions in the May 25 NFR and today's rule are driven by a consistent interpretation and application of the relevant statutory provisions. Section 110(a)(2)(D)(i) (combined with EPA's SIP call authority under section 110(k)(5)) and section 126 are two independent statutory tools to address the problem of interstate pollution transport (64 FR 28263-28267). The purpose of each provision is to control upwind emissions that contribute significantly to downwind States' nonattainment or maintenance problems (64 FR 28263-28267). The two provisions differ in that one relies, in the first instance, on State regulation and the other relies on Federal regulation, but Congress provided both provisions without indicating any preference for one over the other. Thus, Congress must have viewed either approach as a legitimate means to produce the desired result. This drives the conclusion that EPA should use, in a particular situation, whichever of these provisions will achieve the purpose of both of them—to reduce interstate pollutant transport.
Promulgation of the NO
Throughout the section 126 rulemaking, EPA has been confronted with an unusual factual situation. EPA had previously proposed and then promulgated a SIP call to address interstate transport through State action, and in roughly the same time frame, EPA was required to act on petitions from downwind States to address the same problem under section 126. Because section 126 refers to the prohibition of section 110(a)(2)(D)(i),
Under section 126, a State may petition EPA to find that any major source or group of stationary sources emits “in violation of the prohibition” of section 110(a)(2)(D)(i). In the May 25 NFR, EPA stated:
Thus, in the May 25 NFR, EPA found that the upwind States could remedy the problem targeted by the section 126 petitions through timely submission of SIP revisions required by the NO
The statute did not explicitly contemplate EPA's approach in the May 25 NFR. However, EPA believed its approach was based on a reasonable interpretation of the statutory provisions at issue and provided a reasonable way to give meaning to both statutory provisions, without sacrificing the purpose of either. EPA did not suggest that section 126 is subordinate to section 110(a)(2)(D) or that the statute required EPA to provide States time to revise their SIPs before taking action under section 126. As explained at length in May 25 NFR, EPA believes these are two independent provisions under the CAA. EPA stated that its coordinated approach was a “practical” and “reasonable” way “to implement both of these provisions in the same time period, as the timing of the SIP call and the consent decree *** required EPA to do” (64 FR 28275). EPA believes
Certain commenters assert that the CAA required EPA to defer action under section 126 until States had failed to act under the NO
EPA disagrees with these comments. First, there is simply no statutory basis for EPA to indefinitely deny relief to downwind States harmed by pollution transported from upwind States. Congress provided section 126 to downwind States as a critical remedy to address pollution problems affecting their citizens that are otherwise beyond their control, and EPA has no authority to refuse to act under this section. To the contrary, section 126 provides explicit tight deadlines for EPA to act on a petition and for sources to achieve the reductions. EPA must make a finding or deny a petition within 60 days of its receipt. Section 126(b). Further, sources must shut down within 3 months of a finding, unless EPA allows them more time, but no longer than 3 years, to reduce emissions as expeditiously as practicable. (Section 126(c)). Moreover, commenters point to no statutory provisions supporting their argument that EPA may disregard the plain language of section 126 in favor of proceeding first under section 110(k)(5), and the lack of statutory support for their position is particularly troublesome where there is no certain or near-term date for compliance with a SIP call that would satisfy the timing requirements of section 126. The statutory language, structure and legislative history indicate far more Congressional concern for protecting downwind States' interest in ensuring clean air for their citizens than for protecting upwind States' interest in controlling their own sources of emissions. (See 64 FR 28258-28267, 28271-28277.) In particular, the structure of section 126, including the relatively short time frame for implementing the remedy it provides, strongly supports EPA's view of Congressional intent.
In the May 25 NFR, EPA explicitly rejected the suggestion that the Agency has discretionary authority to grant petitions under section 126 only after EPA has promulgated a SIP call under section 110(k)(5) to require States to comply with section 110(a)(2)(D)(i) and States have failed to comply with that SIP call. First, such an interpretation would make section 126 redundant with section 110(c), which already allows EPA to control sources directly through FIPs when a State has been required to submit an adequate SIP and fails to do so. Second, such an interpretation negates the purpose of section 126, “which is designed to provide recourse to downwind states” (64 FR 28274). EPA continued:
As discussed [earlier in the May 25 Rule], no progress had been made on interstate transport problems at the time of enactment of both the 1977 and 1990 Amendments. Section 126 provides a tool for downwind states, the entities with most at stake, to force EPA to confront the issue directly. It also sets up an abbreviated, and hence potentially faster, process to achieve emission reductions. Under the SIP process, EPA must direct a state to revise its SIP to comply with 110(a)(2)(D), and then perhaps find that the state has failed to comply, impose sanctions, and finally promulgate a Federal implementation plan, all of which could potentially stretch out for many years. In contrast Congress required very expeditious EPA action on a petition and from 3 months up to three years for sources to comply. It is perfectly reasonable for Congress to have established section 126 as an alternative mechanism under the Clean Air Act to address the interstate pollution problem, just as it did again in adopting sections 176A and 184. To provide alternatives, the various interstate transport provisions are necessarily different from each other and from other provisions of the Act, but that does not make them inconsistent with other provisions of the Act.
The cooperative federalism principles in the CAA also do not support a different reading of these provisions, as certain commenters suggest. Title I of the CAA, which contains the provisions for EPA air quality standards and State implementation provisions, is primarily based on a cooperative federalism approach. Under this approach, air pollution planning and control at the State level is complemented by Federal regulation and enforcement to achieve clean air goals. Congress has demonstrated no reluctance to mandate Federal action wherever it is useful in addressing air pollution problems. See,
In addition, deferring action on the section 126 petitions until resolution of the NO
As there are now no explicit and expeditious deadlines for State action to address this interstate transport problem under the NO
Commenters also claim that EPA may not now move forward under section 126 because such action would improperly pressure upwind States in at least two ways. Specifically, these commenters claim that EPA's action under section 126 forces upwind States to select control measures identical to those on the section 126 sources, which they claim is contrary to the court's decision in
Applying section 126 independent of an upwind State's failure to act under section 110(a)(2)(D) does not impermissibly pressure upwind States to select certain control measures. EPA acknowledges that because the section 126 findings precede any required State action under the NO
Such an effect on the regulatory environment cannot override the requirement that EPA act on State petitions under section 126. It is simply unreasonable to argue that EPA can take no action under an independent provision of the statute to respond to petitions submitted by downwind States facing their own time constraints and pressures to meet air quality standards, just to preserve the relative attractiveness of a variety of options for control of NO
The commenters are essentially arguing that not only the clock for SIP revisions, but the entire regulatory setting, must stop for the duration of the litigation on the NO
In addition, a State will still have the option of preempting the section 126 remedy and selecting a different set of controls to address the interstate pollution transported from the State. The May 25 NFR provided that if a State submits and EPA approves a SIP revision meeting the requirements of the NO
In support of their assertion that EPA may not proceed with action under section 126 before States have failed to comply with the NO
Other commenters on the section 126 proposal of October 21, 1998 had opposed EPA's proposal to deny petitions under section 126 where a State had complied with the NO
EPA rejected this suggestion on several grounds, some of which were the practical problems raised by subjecting sources in the same State to two contemporaneous, but potentially different, sets of control requirements. The commenters had suggested that if the sources controlled by the State failed to implement the reductions by May 1, 2003, the section 126 remedy should apply to the sources covered by EPA's rule. However, as EPA noted in the May 25 rule, if the State chose to obtain the reductions in a manner different from the section 126 remedy (imposing looser or no controls on the section 126 sources), the commenters' suggested approach could increase the overall control burden because in practice, the sources controlled by the State and the section 126 sources might both reduce emissions. Only the State-controlled sources would initially be under a legal obligation to control. But if those sources did not meet the May 1, 2003 control deadline, under the commenters' suggested approach, the section 126 sources would suddenly become liable for violations of the CAA. To avoid such a risk, the section 126 sources would also implement controls. Yet full implementation of the set of controls either mandated by the State and approved by EPA under section 110, or mandated by EPA under section 126, would be sufficient to eliminate the emissions that contribute significantly to downwind nonattainment or maintenance problems. Thus, the overall burden of achieving the emission reductions could be higher than necessary, depending upon the degree to which the two sets of control requirements were non-identical. (64 FR 28275-28276.)
Thus, in the May 25 NFR, EPA rejected the suggestion that the section 126 remedy should apply as a backstop to sources in a State even after that State had complied with the NO
Today's rule would not create the situation discussed in the May 25 NFR. EPA is implementing the requirements of section 126 of the CAA in the absence of any currently effective requirement for upwind States to address the interstate pollution transport problem themselves. EPA is not making sources potentially subject to two contemporaneous, potentially conflicting, regulatory regimes. Depending upon the timing of a State's eventual compliance with the NO
EPA has not included in today's rule a provision to automatically withdraw the section 126 findings upon EPA approval of a later SIP revision that complies with the NO
EPA's regulation of sources under section 126 also does not practically or legally coerce upwind States to comply with the NO
EPA disagrees that taking action under section 126 pressures States to comply with the NO
Commenters also argue that the similarity between the remedy under section 126 and the proposed FIP for failure to comply with the NO
EPA is using section 126 to reduce interstate transport, as required by section 126, not to pressure States to comply with the NO
Certain commenters also point to EPA's retention of the provision for automatic withdrawal of the section 126 findings upon approval of a SIP revision complying with the NO
As EPA has done no more than retain a pre-existing regulatory provision where there was no reason to remove it, this should not be misconstrued as demonstrating an intent to pressure States into complying with the NO
In the May 25 NFR, EPA determined that the petitions from Connecticut, Massachusetts, New York, and Pennsylvania are partially approvable under the 1-hour standard based on technical considerations. In aggregate for these four petitions, EPA made affirmative technical determinations of significant contribution under the 1-hour standard for large EGUs and large non-EGUs located in the District of Columbia and the following 12 States: Delaware, Indiana, Kentucky, Maryland, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia. In today's rule, EPA is making findings under section 126(b) that each of the new or existing sources, for which EPA made an affirmative technical determination, emits or would emit NO
For the District of Columbia and eight of the affected States, the combined findings apply throughout the entire jurisdiction. However, the findings cover only parts of Indiana, Kentucky, Michigan, and New York. The findings for sources located in these States are being made with respect to the petitions from Connecticut and/or New York. In the NO
Five of the eight petitioning States (Maine, Massachusetts, New Hampshire, Pennsylvania, and Vermont) requested that EPA evaluate their petitions under the 8-hour standard. In the May 25 NFR, EPA determined that all but the Vermont petition are partially approvable under the 8-hour standard based on technical considerations. In aggregate for the four approvable petitions, EPA made affirmative technical determinations of significant contribution under the 8-hour standard for large EGUs and large non-EGUs located in the District of Columbia and the following 19 States: Alabama, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Virginia, and West Virginia. There are seven whole States and portions of four other States that are covered only under the 8-hour standard.
EPA continues to evaluate the effect of the D.C. Circuit's decision on the 8-hour NAAQS in
In light of this uncertainty, EPA believes that EPA should not continue implementation efforts under section 126 under the 8-hour standard that could be construed as inconsistent with the court's ruling. Therefore, EPA is staying indefinitely the section 126 affirmative technical determinations based on the 8-hour standard, pending further developments in the NAAQS litigation. This stay affects the affirmative technical determinations under the 8-hour petitions filed by the States of Maine, Massachusetts, Pennsylvania, and New Hampshire. The State of Vermont also submitted an 8-hour petition; however, EPA fully denied that petition in the May 25 NFR. In aggregate for the 8-hour petitions, the stay affects the 8-hour affirmative technical determinations made for sources located in District of Columbia and the 19 States listed above in Section II.D.1. However, EPA is making findings under the 1-hour standard for sources located in the District of Columbia and at least portions of 12 of these States. The 1-hour findings are not affected by the 8-hour stay and therefore sources in these States (or portions thereof) are still subject to the control requirements in today's rule. The EPA made section 126 affirmative technical determinations only under the 8-hour NAAQS, and not under the 1-hour NAAQS, for sources located in the following seven States: Alabama, Connecticut, Illinois, Massachusetts, Missouri, Rhode Island, and Tennessee. In addition, EPA made section 126 affirmative technical determinations under the 8-hour standard, and not under the 1-hour NAAQS for sources located in portions of Indiana, Kentucky, Michigan, and New York. Sources located in the seven States and portions of the four other States listed above are not required to implement section 126 controls under this rule for so long as the 8-hour stay is in place. (See Section II.C. for a description of the portions of the four States that are covered by the 1-hour findings.)
Commenters generally supported the indefinite stay of the affirmative technical determinations based on the 8-hour NAAQS pending further developments in the NAAQS litigation. However, a number of commenters suggested that it would be better for EPA to deny the portions of the petitions based on the 8-hour standard, rather than just staying the affirmative technical determinations. EPA promulgated the affirmative technical determinations based on the 8-hour standard in a final rule. EPA has neither moved forward based on the 8-hour standard, nor revisited the May 25 rule, but has simply stayed this portion of the May 25 rule for the interim. As discussed above, the status of the 8-hour standard is still uncertain and the litigation may well continue. Given this uncertainty, EPA believes that it would not be appropriate for the Agency at this time to address the question of whether to grant or deny the portions of the section 126 petitions based on the 8-hour standard. Staying the affirmative technical determinations based on the 8-hour standard assures that the section 126 rule will impose no compliance burdens based on the 8-hour standard. Also, EPA would engage in a rulemaking to lift the stay and make findings based on the 8-hour standard, and in that rulemaking any issues on using the 8-hour standard as a basis for action under section 126 would be open for public comment.
The control requirements for sources for which EPA is making effective section 126(b) findings are discussed in Section III below. As discussed above, currently the control requirements would only apply to sources for which a finding is being made under the 1-hour standard.
Section 126(c) states, in relevant part, that: it shall be a violation of this section and the applicable implementation plan in such State
(1) for any major proposed new (or modified) source with respect to which a finding has been made under subsection (b) to be constructed or to operate in violation of this section and the prohibition of section 110(a)(2)(D)([i]) or this section or
(2) for any major existing source to operate more than three months after such finding has been made with respect to it.
The remedial requirements that EPA is finalizing in today's action for sources for which a section 126(b) finding is ultimately made would satisfy the requirements just quoted. First, EPA is requiring that sources for which a section 126(b) finding is ultimately made must comply with the requirements described in Section III to ensure that they do not emit in violation of the section 110(a)(2)(D)(i) prohibition. Second, the program EPA is finalizing serves as the alternative set of requirements that the Administrator may apply for the purpose of allowing existing sources subject to a section 126(b) finding to operate for more than 3 months after the finding is made.
In the October 21, 1998 section 126 proposal, EPA proposed a cap-and-trade program as a highly cost-effective approach to achieving necessary emissions reductions from large stationary sources. This remedy would apply to any new or existing major source or group of stationary sources for which a finding is made under section 126.
The cap-and-trade program is a proven method for achieving air quality objectives, while simultaneously providing compliance flexibility to sources. The freedom to pursue various compliance strategies (
As explained in the October 21, 1998 section 126 proposal (63 FR 56309-56320), under a cap-and-trade system the Administrator sets both an emission limitation and compliance schedule for each unit subject to the program. The emission limitation for each unit is the requirement that the quantity of the unit's emissions during a specified period (here, the tonnage of NO
For purposes of complying with section 126, EPA translates emission limits into allowance requirements. Since EPA has the authority to establish emission limits under section 126, and since allowance requirements are equivalent to emission limits, EPA has the authority to promulgate allowance requirements and allocate allowances for purposes of section 126. The cap-and-trade program is a compliance mechanism that enables sources to make cost-effective decisions to meet their allowance requirements (which are their emission limits). Therefore, EPA adopted such a program as a cost-effective means of implementing the requirements of section 126.
Section 52.34(j) of the May 25, 1999 final rule established the cap-and-trade program as the general remedy for sources that will be subject to any future finding under section 126. In § 52.34(j), the EPA promulgated general parameters for the remedy, including the identification of the categories of sources that would be subject to the trading program, the specification of basic emission limitations for covered sources, total emissions reductions to be achieved by the program, and the compliance schedule. Section 52.34(j) also identified the methodology used to determine the NO
The regulatory language finalized in the May 25, 1999 section 126 final rule delineated the following general elements of the trading program, listed here:
• All large EGUs and large non-EGUs for which EPA makes a final finding under section 126(b) will be covered by and subject to the Federal NO
• Beginning May 1, 2003, the owner or operator of each source subject to the Federal NO
• The total tons of NO
(a) The total tons of NO
(b) The total tons of NO
• Compliance supplement pool credits will be available for distribution to affected sources, subject to specific State-by-State tonnage limits as established in the NO
In the May 25, 1999 section 126 final rule, EPA did not promulgate either the part 97 rule provisions providing the specific details of the trading program for the section 126 remedy or the unit-specific allocations (as explained in Section IV.C.2. of the preamble to the May 25, 1999 final rule). Under § 52.34(k), EPA specified the interim final emissions limitations that would be imposed in the event that the Administrator made a finding under section 126 pursuant to provisions of § 52.34(h), without first promulgating regulations setting forth the details of the NO
In light of the two court decisions by the U.S. Court of Appeals detailed in Section I.A.1., EPA subsequently proposed to amend certain aspects of the section 126 final rule. In the June 24, 1999 “Proposal to Amend Two Respects of May 25, 1999 Final Rule”, the Agency proposed to remove the link between the NO
Today's section 126 final rule amends the regulatory language that established the elements of the control remedy promulgated in the May 25, 1999 section 126 final rule (listed above). Specifically, today's rule replaces four of the elements from the May 25, 1999 final rule with related provisions under part 97, while one of the elements remains essentially unchanged. The replacements are substitutions, that are essentially equivalent to the May 25, 1999 section 126 regulations. First, the allowance-holding requirements in part 97 (
By specifying the details of the Federal NO
As noted earlier in this section, two decisions by the U.S. Court of Appeals in the District of Columbia have led the EPA to amend certain provisions of the May 25, 1999 section 126 final rule. The Court decision on the 8-hour ozone non-attainment standard has reduced the total number of States subject to the Federal NO
As in the October 21, 1998 section 126 proposal, today's Federal NO
Under part 97, the program elements described below are essentially the same as the corresponding sections in part 96, which set forth the State NO
The following list identifies the sections of part 97 that are essentially the same as the corresponding sections in part 96 and in the October 21, 1998 section 126 proposed rule. Additional information on the following subparts
Section 97.5 sets forth the retired unit exemption and includes a few minor changes from part 96 and the section 126 proposed rule. First, § 97.5(c) is revised concerning NO
Under the Federal NO
Since today's rule is being promulgated under title I (
Sections 97.20(a), 97.21(b), and 97.23(a) include a few minor word changes from part 96 and the October 21, 1998 section 126 proposal that clarify, but do not alter the substance of, the provisions. For example, minor word changes in § 97.20(a)(1) and (2) remove superfluous language listing the subjects that title V and non-title V regulations may address. By further example, in § 97.20(b), the phrase “including any draft or proposed NO
One section, proposed § 97.24 addressing the effective date of the initial NO
With regard to accounts, the NO
The compliance provisions in §§ 97.54(a) through (e) are essentially the same as the provisions under the part 96 and the October 21, 1998 section 126 proposed rule. The procedure for deducting NO
EPA has included banking as a feature in the Federal NO
Today's rule relocates the flow control provisions from proposed § 97.55(b) to final § 97.54(f), and the references in the flow control provisions to other provisions in § 97.54 are corrected to reflect this relocation. The proposed § 97.55(b) stated explicitly that the flow control provisions modify the provisions for compliance deductions under § 97.54. However, the relocation in § 97.54 and the accompanying minor wording changes make it clearer that flow control is part of the compliance process and that, for example, the 2-for-1 deductions under flow control can result in excess emissions under § 97.54(e). The wording changes also clarify that the 2-for-1 deduction requirement does not apply to the 3-for-1 deduction for excess emissions in § 97.54(e). As part of this clarification, parallel changes are made to the definitions of “NO
Further, as described in the preamble to the May 25, 1999 final rule, commenters expressed concern that some sources may encounter unexpected problems installing controls by the May 1, 2003 deadline and that this could cause unacceptable risk for a source and its associated industry. While EPA continues to believe that this is not a valid concern, the Agency finalized the creation of a compliance supplement pool in the May 25, 1999 section 126 final rule. The pool increases compliance flexibility by providing additional allowances for compliance during the 2003 and 2004 ozone seasons. As described in section III.B.3.c., today's rule establishes the specific methodology for the distribution of NO
Sections 97.61(a) and 97.62(a) and (b) include a few minor word changes from part 96 and the October 21, 1998 section 126 proposed rule that clarify, but do not alter the substance of, the provisions. For example, paragraph (a)(3) in § 97.61 requiring that NO
Subpart I of today's rule includes a few minor changes from part 96 and the October 21, 1998 section 126 proposal that reflect the Federal (rather than State) administration of the part 97 trading program, or that either clarify or streamline the opt-in provisions. Also, under §§ 97.84(a) through (c) of today's rule, NO
Subpart I also includes a number of minor word changes from part 96 and the October 21, 1998 section 126 proposed rule that clarify, but do not alter the substance of, the provisions. For example, the statements in proposed § 97.80 that a “NO
The following sections in part 97 incorporate certain differences from the corresponding sections in part 96 and in the October 21, 1998 section 126 proposed rule. Additional information on the following subparts can be found in the preamble accompanying the proposed part 97 (63 FR 56313-56321).
EPA uses essentially the same definitions for part 97 as those that apply in part 96 and the section 126 proposed rule, with several exceptions. The definitions for the terms “allocate”, “NO
Some definitions (“electricity for sale under firm contract”, “fossil-fuel fired”, “potential electric output capacity”) are revised or added, and thus differ from those in both part 96 and the section 126 proposed rule, in order to be consistent with the inventories used in the NO
As described in the preamble to the May 25, 1999 section 126 final rule and the October 21, 1998 section 126 proposal, the Federal NO
In the NO
As noted in the May 25, 1999 section 126 final rule, the sources or groups of sources identified in the section 126 petitions are also sources for which EPA recommended that States adopt emission limitations and control strategies in response to the NO
In the NO
Based on the view that the SIP call and section 126 petitions rely on the same threshold criteria and are both designed to achieve the same goal, the EPA has sought to coordinate the two actions to the maximum extent possible (see the preamble to the final NO
Therefore, trading among sources in States with a State NO
For the reasons stated above, today's rule allows sources in States or portions of States that are not subject to a finding under the section 126 to participate in trading with sources in States or portions of States covered by the rule, provided that the States or portions of States not covered by the rule meet the following conditions. Any State or portion of a State that voluntarily chooses to enter the section 126 trading system must be subject to the NO
In order to allow trading between sources in States or portions of States subject to the section 126 and sources in States or portions of States subject to EPA-approved and administered State NO
Sources subject to the emission limitations and compliance schedule in the Federal NO
Section 97.4(a)(1) describes a category of units, corresponding to “large electric generating units” under § 52.34(a)(2), that is covered by the Federal NO
Section 97.4(a)(2) describes a second category of units, corresponding to “large non-electric generating units” under § 52.34(a)(3), that are covered by the Federal NO
In order to clarify which units are covered by the categories in § 97.4(a) and so are subject to the trading program, today's rule includes two new definitions. First, “electricity for sale under firm contract to the electric grid” is defined as where “the capacity involved is intended to be available at all times during the period covered by the guaranteed commitment to deliver, even under adverse conditions.” This definition is based on language from the
Second, “potential electrical output capacity” is defined as 33 percent of a unit's maximum design heat input capacity. This definition is the same as the definition in § 52.34(a) and is based on longstanding definitions of this same phrase in part 72 of the Acid Rain Program regulations (40 CFR 72.2 and 40 CFR part 72, Appendix D) and in the subpart D of the New Source Performance Standards (40 CFR 60.41a).
EPA notes that the EGU and non-EGU categories in § 97.4 differ from the corresponding categories in § 96.4 in part 96 of the model trading rule. In future guidance, EPA intends to clarify that it will accept the use in State trading program rules of the EGU and non-EGU categories in § 97.4 and that EPA will administer such a State program.
Under the proposed definitions in § 97.2, boilers, combustion turbines, and combined cycle systems that operated but did not combust more than 50 percent fossil fuel in 1995 were generally not considered “fossil fuel-fired”, and thus were not “NO
In addition, EPA received comment that the definition of fossil fuel-fired was open-ended, allowing sources to jump in and out of the NO
EPA maintains that it is appropriate to define fossil fuel-fired in a manner consistent with the way EPA developed the State trading program inventories and budgets. These State trading program inventories and budgets are based on the universe of sources that existed in 1995-1996 and were fossil fuel-fired at that time. These State trading program budgets allow for the inclusion of new units (units commencing operation after 1996) through the use of growth rates. However, the growth rates do not account for the expansion of that universe of sources as the result of existing units increasing their consumption of fossil fuel to over 50 percent after 1996.
The EPA is finalizing a fossil fuel-fired definition in § 97.2 that is revised as follows to be consistent with the way EPA developed the State trading program inventories and budgets. Paragraphs (1) and (2) of the definition reflect how EPA determined whether boilers, turbines, and combined cycle systems commencing operation during or before 1995 and 1996 were fossil fuel-fired and thus included in the State trading program inventories and budgets. Paragraph (3) reflects the fact that boilers, turbines, and combined cycle systems commencing operation after 1996 and combusting more than 50 percent fossil fuel were reflected in the State trading program budgets through growth rates.
For purposes of today's final rule, fossil fuel-fired is defined as follows:
(1) For units that commenced operation before January 1, 1996, the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1995, or, if a unit had no heat input in 1995, during the last year of operation of the unit prior to 1995.
(2) For units that commenced operation on or after January 1, 1996 and before January 1, 1997, the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1996.
(3) For units that commence operation on or after January 1, 1997: (i) The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year; or (ii) the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during any year, provided that the unit shall be “fossil fuel-fired” as of the date, during such year, on which the unit begins combusting fossil fuel.
EPA notes that today's definition of fossil fuel-fired differs from the one in § 96.2 in part 96. In future guidance, EPA intends to clarify that it will accept the use of today's definition in State trading program rules and that EPA will administer such a State program.
The vast majority of commenters expressed support for the 25-ton exemption. One commenter did not support the exemption because, in aggregate, such units contribute to non-attainment in other areas. Some commenters supported the exemption provided that State trading program budgets are reduced by the full amount allowed for in an enforceable permit. Several of the small entity representatives argued that all units at small entity-owned facilities should be exempt regardless of the size of the unit.
Based on the comments and EPA's own analysis, EPA maintains that it is appropriate to adopt a 25-ton exemption. This provision exempts units that meet the requirements described below from the requirements to hold allowances, monitor emissions, and report quarterly emissions. Thus, the 25-ton exemption increases cost effectiveness of the control program, by reducing monitoring and reporting costs, but still limits the unit's emissions through a low, federally enforceable permit limitation. Furthermore, small entity impacts are reduced since many potentially exempted units are owned by small entities.
In addition, exempt units will not have any significant adverse impact on regional air quality. First, consistent with comment on the proposed rule, NO
With regard to exempting all small entity-owned units, EPA maintains that an across-the-board exemption, regardless of the units' emissions, could not be supported because the cost and administrative burdens of the rule will not affect a significant number of small businesses nor will it significantly or disproportionately impact these small businesses. See section IV.B and EIA for discussion of economic impact on small entities. Furthermore, the trading program already allows expensive-to-control units the option to buy allowances and not install controls and provides for simplified, less expensive monitoring of oil or gas-fired units with low emissions. Therefore, EPA is basing the exemption on the unit's allowed emissions.
Thus, for today's final rule, EPA is allowing electric generating units with a 25-ton ozone season enforceable permit limitation to be exempt from the trading program. However, today's final rule revises the language in § 97.4(b), which sets forth the exemption, by reorganizing the section to resemble the order of provisions in the retired unit exemption (§ 97.8) and by adding some provisions to make the section clear and complete. Section 97.4(b)(1) states a unit that has a federally enforceable permit with a NO
Section 97.4(b)(2) explains when the exemption takes effect. This is not clearly addressed in the proposal. Since the exemption is based on the unit having a federally enforceable permit with a specific NO
Sections 97.4(b)(3) and (4) are, for the most part, restatements of provisions in the proposed exemption provisions. The § 97.4(b)(3) requirement to notify the Administrator of the issuance of the federally enforceable permit is set forth in proposed § 97.4(b). The § 97.4(b)(4)(i) and (iii) special provisions are reflected in proposed §§ 97.4(b) and (b)(2). The recordkeeping provision in § 97.4(b)(4)(iv) is like the one in proposed § 97.4(b)(1) but adds a 5-year limit on the recordkeeping requirement unless otherwise requested by the permitting authority or the Administrator. The provision also explicitly states that the owners and operators bear the burden of proving that they meet the operating hours restriction. This provision is similar to the recordkeeping requirement for the retired unit exemption. A parallel change is made in § 97.4(b)(4)(vi). Under the change a unit loses its exemption on the first date on which the unit does not comply with the operating hours restriction or with or with regard to which the owner and operators fail to meet their burden of proving compliance.
The § 97.4(b)(4)(ii) provisions (along with provisions in § 97.40(b) and § 97.42(d)(5)(ii)) address the treatment of exempt units in the State trading program budgets. As discussed above, an existing, exempt unit that qualifies for NO
Further, the § 97.4(b)(4)(v) provision makes explicit the implicit requirement that a unit comply with part 97 requirements for any period when the unit is not exempt. If a unit loses the exemption with respect to a given control period, § 97.4(b)(4)(ii) sets the date on which the unit loses the exemption as the date deemed to be the unit's commencement of operation or commercial operation for purposes of permitting, allowance allocation, and
In addition to the revisions to § 97.4(b), references to the exemption under that section are added in various places in part 97 where the other exemption from the trading program, i.e., the retired unit exemption, is already referenced. See, e.g., § 97.6(c)(6), (f)(1), and (g), § 97.22 (d)(1), and § 97.70(d)(4)(i).
A few commenters noted that there should not be a voluntary opt-in program. However, most commenters expressed support for an opt-in program. One commenter supported adding mobile and area sources through provisions for credit-based programs. However, another commenter expressed opposition to including mobile sources unless a firm cap is established for that sector. Some commenters expressed support for allowing smaller sources to opt-in but noted that part 75 CEMS requirements should not be imposed on these sources.
After considering the comments received, EPA maintains that it is appropriate to allow individual units the opportunity to opt-in to the Federal program for purposes of the section 126 remedy if the units meet certain conditions. The units must not be covered by § 97.4(a) or an exemption under § 97.4(b) or § 97.5. This prevents units from obtaining an exemption from the program and then re-entering the program as opt-ins, which would impose a significant administrative burden on the Administrator and permitting authorities and provide opportunities for gaming, i.e., to obtain allowances based on a different, more advantageous baseline. The units also must be located in a “State”, which is defined as a State or portion of a State for which a section 126 remedy is promulgated under § 52.34, must be operating, and must vent to a stack and be able to monitor NO
For the same reasons discussed in the final NO
The EPA does not agree that there should be special, less expensive monitoring methods for opt-in units than for other, similar NO
However, EPA agrees that it is appropriate to have monitoring methods other than CEMS for smaller and less frequently operated units, whether or not they are opt-in units. All units participating in the Federal NO
In the October 21, 1998 section 126 proposal, EPA discussed the calculation of State specific aggregate emission levels, proposed that the section 126 trading program budget in each State would equal the State specific aggregate
As discussed in Section III.A.1. of this preamble, in the May 25, 1999 section 126 final rule, EPA finalized the methodology used to determine the NO
(a) The total tons of NO
(b) The total tons of NO
The number of tons in each State or partial State trading program budget can be found in Appendix C of the final part 97. The emission levels for each State reflected in Appendix C are consistent with the revised inventories and State budgets described in the December, 1999 SIP call inventory notice. Where only partial portions of States are covered by this rulemaking, the State trading program budgets reflect only the portions of the States that are covered. This is because each State trading program budget includes emissions only from the sources affected by the control remedy in this section 126 rulemaking.
The State trading program budgets are also addressed in § 97.40 of today's rule. Section 97.40 includes some changes from part 96 and the October 21, 1998 section 126 proposal. Under § 96.40, the State trading program budget is determined by the State in the SIP. In contrast, § 97.40 reflects the fact that part 97 creates a federally administered trading program where the State trading program budgets are determined by the Administrator and are reflected in Appendix C of part 97. Moreover, § 97.40(b) provides that a State trading program budget for a control period may be reduced, before the budget is allocated, by the permit limit of each unit exempt under § 97.4(b) in the State. The reduction is required if allowances equal to the permit limit are not already being withdrawn either by deducting allowances equal to the permit limit from the general account of the unit's owners and operators after the unit is allocated allowances as an existing unit or by reducing the new unit allocation set-aside for the control period. As discussed above in Section III.B.1.c. of this preamble, this ensures that exempt units do not have any significant adverse impact on air quality. In addition, today's rule eliminates, as redundant, the definition of “trading program budget” in § 97.2 and instead explains in § 97.40 that the Administrator will allocate each State trading program budget in accordance with §§ 97.41 and 97.42. In light of the provisions in § 97.40 and Appendix C, the language in the existing § 52.34(j)(3) describing the calculation of the State trading program budgets is redundant and is therefore removed. The State trading program budgets reflected in Appendix C and referenced in § 97.40 are calculated in a manner consistent with the calculation description in § 52.34(j)(3).
While the May 25, 1999 section 126 rule finalized the methodology for determining the State aggregate emission levels, the Agency did not finalize the methodology for determining the NO
Sections III.B.3.a. (electric generating units) and III.B.3.b. (non-electric generating units) describe the specific allocation methodologies included with today's rule.
(1)
Therefore, as proposed, the Administrator will record NO
As stated above, the EPA will determine allocations and record them in the NATS on an annual basis 3 years prior to the relevant control period. This
(2)
The Agency received numerous comments arguing against the proposed schedule and supporting longer-term or permanent allowance allocations. Several commenters suggested that the proposed schedule would be administratively cumbersome and would create uncertainty and risk for sources regarding investments in control technologies. Two commenters stated that annually updating allocations would provide incentives to generate more electricity and create market distortions and that EPA has not fully evaluated all of the implications of updating the allocations. These commenters (as well as others) expressed support for 5- to 10-year allowance allocations.
Other commenters favored some form of updating of allocations, provided the updates were done based on output data rather than heat input data. Another commenter noted that EPA should periodically re-allocate NO
The Agency agrees with the commenters who suggested that updating output-based allowance systems for electric generating units reward and encourage efficiency, but also agrees with the commenters who stated that updating allocations, whether input or output-based, provide incentives to generate more electricity. The Agency commissioned an analysis of the impacts of permanent allocations versus updated allocations in order to respond to the comments received on the proposal and to assist in determining the most appropriate method for distributing NO
After reviewing the comments and looking at the results of the allocation report (Docket A 97-43, Category XI-B-01), the Agency has decided to include an updating allocation approach in the Federal NO
Some of these benefits of updating resulted from the fact that updating provides a mechanism for incorporating new sources into the program, rather than requiring new sources to purchase all the allowances they need for operation from the market. With updating allocations, new sources can be incorporated into the allocations for existing units once the system is updated. Prior to the update, new sources can receive allocations from a new source set-aside. Under a permanent system any new source set-aside would be exhausted at some point, resulting in new sources having to purchase all of the allowances they need to operate.
The Agency believes that new sources should be allocated allowances, rather than being required to purchase allowances. The analysis described in the allocation report (Docket A 97-43, Category XI-B-01) indicates that an updating system can achieve ancillary environmental benefits relative to a permanent system in part because new, more efficient sources locate in the section 126 region if allowances are available to them. Requiring new sources to purchase all the allowances they need to operate, as opposed to making them available through an updating mechanism, would raise the cost of locating within the section 126 region for new sources. If new sources are built within the section 126 control region, generation from new sources can replace some generation from existing sources, resulting in ancillary environmental benefits within the section 126 region. New sources tend to be more efficient and emit at lower emission rates. Additionally, allocating to new sources through an updating mechanism could limit the potential leakage of emissions outside of the section 126 region.
However, rather than an annually updating approach as proposed, the Agency will update the allocations every 5 years. Updating the allocations every 5 years provides a reasonable balance between two important, but countervailing factors: (i) accommodating changing electricity market conditions (by incorporating new sources and reflecting generation changes) and encouraging generation efficiency that can result in ancillary environmental benefits, and; (ii) giving sources more certainty for their compliance planning. The first factor tends to support more frequent updating, while the second factor tends to support less frequent updating.
Most of the commenters suggested that EPA issue allocations for a longer time period (at least 5 years). The Agency agrees with the commenters that an annually updating system could
Therefore, the final rule provides that while the Agency will not record the allocations in the unit accounts until April 1 of the year 3 years preceding each relevant control period, the allocations for 2004, 2005, 2006, and 2007 will be the same as the allocations for the 2003 control period. After this initial five year period, EPA will update the allocations every 5 years while still ensuring that sources know their allocations 3 years prior to the relevant control season. For example, by April 1, 2005, sources will know their allocations for the control periods 2008-2012. By April 1, 2010, sources will know their allocations for the control periods 2013-2017.
(3)
A few commenters supported the Agency's proposed approach of using data from the average of the highest two ozone season values from the period 1995, 1996 and 1997. However, several commenters requested variations on the baselines used for their particular allocations. A number of commenters noted that due to exceptional circumstances (generally in 1995 and 1996), such as mothballing, construction, repairs, etc., the data for certain units are too low and as a result the affected utilities would be denied a fair and adequate level or amount of allocations for these units. Other commenters noted generally that EPA should consider claims of atypical baseline years in developing allocations. Several commenters suggested that EPA should allow sources to use 1998 data (in addition to data from the previous years) in determining the allocations. The majority of commenters suggested using multiple years of data rather than a single year for both the initial and subsequent allocations.
The Agency proposed using data from 1995, 1996, and 1997 (the average of the data from the 2 highest years) in determining the initial allocations for electric generating units so that the initial allocations would better represent the operation of particular units. The Agency believes that an average of data from more than one year provides a more representative baseline than basing an allocation on data from one year which may not reflect representative operating conditions at a particular unit. The Agency used the most recent data available that had been through a public review process and, at the time of the proposal, 1998 data was not yet available. With the publication of the Notice of Data Availability on August 9, 1999, EPA now has 1998 data that has been publicly reviewed (See Section III.B.3.a.ii.(3) below about the sources of data used for allocations). EPA agrees with the commenters that sources should be able to use data from 1998 in determining their allocations. Therefore, the Agency is finalizing an initial allocation approach that bases the allocations on the average of the highest of 2 out of the
The Agency is making data from this additional year (1998) available for use in the 2003-2007 allocations to incorporate the most recent data available, but also to address comments received from sources who cited exceptional circumstances in more than 1 of the 3 years originally proposed as the basis for the initial allocation. The Agency believes that this adequately addresses exceptional circumstances since it allows sources to pick the 2 highest years out of a 4-year range. Thus, if a source faced exceptional circumstances in either 1 or 2 years between 1995 and 1998, data from the year(s) in which the exceptional circumstances occurred would not be used in the initial allocation. If circumstances occurred that reduced heat input for more than half of the years 1995-1998, it is highly questionable whether they should be considered “exceptional” and therefore not reflected in the allocations.
In the proposal, the Agency stated that after the initial allocation period, companies would be able to better accommodate variations in single year allocations through the trading market and company-wide compliance strategies and therefore the Agency proposed basing the annual updates on one year of data. However, because the Agency has moved from an annually updating allocation system (as described in the proposal) to a system that updates every 5 years, variations in allocations could have a more lasting effect. An unusually low year of operation could affect allocations for 5 years if only one year of data is used as the basis for the update. Therefore, the Agency is finalizing an updating allocation approach for EGUs that bases the updated allocations on an average of the data from the 5 most recent years. The Agency is using all 5 of the most recent years to ensure that data from each year contributes to the eventual allocation level. If the Agency only selected one, or a couple of years as a baseline, sources could potentially have an incentive to operate more in the 1 or 2 years on which their allocation would be based because it would give them a higher baseline used in setting allocations. Using data from a larger number of years (
However, for the period 2008-2012, data from the 5 years immediately preceding the year in which the allocations will be determined may not be available for all sources. Allocations will be based on an average of data from the years immediately preceding 2005 (the year in which the 2008-2012 allocations will be determined) for which data is available. The Agency expects sources to begin monitoring in 2002, and data should be available for the 2002, 2003, and 2004 control periods. Therefore, the 2008 through 2012 allocations will be based on the average of the data from the 2002, 2003, and 2004 control periods. For all subsequent updates, 5 years of data will be available and will be used in the allocations. For example, the 2013-2017 allocations will be based on the average of the data from the 2005, 2006, 2007, 2008 and 2009 control seasons.
Section III.B.3.a.(ii)(1) explains that the allocations finalized with this rule replace the default emission limitation methodology finalized with the May 25, 1999 final section 126 rule. Section III.B.3.a.(ii)(2) summarizes the comments the Agency received on the three proposed allocation options, describes the Agency's commitment to adopting an output-based allocation approach, lays out the technical reasons why the Agency is issuing heat-input based allocations for the 2003-2007 control periods, and explains why the Agency can not issue output-based allocations until the 2008 control period. Section III.B.3.a.(ii)(3) discusses the sources of data used in determining the allocations, and Section III.B.3.a.(ii)(4) describes the final allocation approach for new sources. Finally, Section III.B.3.a.(ii)(5) summarizes the rule language included in the final part 97.
(1)
As discussed in the May 25, 1999 final rule, EPA entered into a consent decree with the petitioning States that committed the Agency to developing a final section 126 remedy by April 30, 1999. However, the regulations setting forth the Federal NO
For similar reasons, the provisions in § 52.34(j)(1) and (2) that describe generally, and require promulgation of, the Federal NO
(2)
Comments were also received on the potential effectiveness of an output-based system to improve efficiency. One of the commenters that expressed support for an output methodology applicable only to fossil fuel units noted that improvements in the efficiency of the energy system will come from the overall stringency of the emissions cap, instead of the allocation methodology. One commenter noted that output-based allocations will provide little incentive for energy efficiency. Another commenter noted that an output-based allocation system has the potential to reward and encourage efficiency, but that it is difficult to evaluate the effectiveness and potential benefits until the details of this allocation system are finalized.
Others noted that there are difficulties and uncertainties associated with an output-based allocation procedure that should be resolved prior to implementation. However, a few of these commenters expressed support for an output-based allocation method that would incorporate non-fossil sources, and some added that an output-based, generation-neutral approach would result in greater air quality benefits.
One commenter generally opposed an output-based approach and noted that EPA does not have the legal authority to implement a section 126 regulatory scheme that includes fossil fuel and non-fossil fuel-fired units. This commenter added that output-based allocations would provide no air quality benefit, could hinder attainment of the NAAQS in some areas, would increase compliance costs, and would be difficult to implement. According to the commenter, output-based allocations would create tracking and administrative problems and would involve the added complications of obtaining steam output data and determining how it should be combined with the electricity output information.
The Agency agrees with the commenter who stated that improvements in the efficiency of the energy system will result from the overall stringency of the emissions cap. The ability for sources to sell surplus allowances provides an incentive for efficiency improvements in any given year, regardless of how the allowances are distributed.
However, the Agency believes, based on a review of the comments and the results of the allocation report (Docket A 97-43, Category XI-B-01), that allocation methods can have an impact on electricity generation decisions. The Agency has carefully weighed the comments, considered the results of the report, and considered technical feasibility and data availability factors in making its allocation decision.
The Agency has concluded that an updating output-based approach is likely to result in more ancillary environmental benefits, lower emission control costs and lower fuel use than an updating heat input-based system. Therefore, the Agency has committed to adopting an output-based allocation system for the updated allocations in the section 126 control remedy.
However, the Agency has determined that a heat input based allocation is the most appropriate approach to use for the initial 2003-2007 allocation. Section 97.42 of today's rule describes this heat input methodology used to calculate the initial allocations. Appendix A contains the specific unit allocations that will be issued each year during the initial five-year period (2003-2007) for all the units affected by the control remedy under this section 126 rulemaking.
The Agency has decided to allocate on a heat input basis for the initial allocation period for a number of reasons. First, although the Agency has now put out for public comment data on electric generation from affected sources, the heat input data for the initial baseline period has undergone more extensive public review than the output data. In addition, the set of heat input data is more complete in that EPA has available measured heat input data, but not output data, for each affected unit. The heat input numbers also reflect the actual operation of each unit. The output data EPA has available to it is, in many cases, plant data that is apportioned to the unit level based on heat input. The EPA agrees with commenters that directly measured output data is more accurate than apportioned output data based on heat input. The accuracy of output apportionment based on heat input depends on whether the units at the plant actually have the same efficiencies. Any differences in the design of the units or their fuels makes it less likely for the efficiencies to be the same. Further, in order for a cogenerator to receive a NO
Additionally, as pointed out by several commenters and based on the allocation report (Docket A 97-43, Category XI-B-01), the updating aspect of the allocations (not the initial allocation nor the input or output basis of the allocations) provides the incentives for behavior changes and thus, only differences between an input and output-based updating approach will yield a difference in expected behavior. Because the initial allocation is based on historical data and so reflects only actions already taken, it would not provide any incentives (either the potential negative or positive incentives pointed out by commenters) for future actions. In other words, basing the initial allocation on output as opposed to input would not result in any additional air quality benefits (or costs), changes in emissions control costs, or market distortions.
However, EPA's allocation report (Docket A 97-43, Category XI-B-01), as well as the commenters, project differences in environmental and emissions control costs between an output-based allocation system on an updating basis and a heat input-based allocation system on an updating basis. As discussed above, updating allocations provides a mechanism to allocate to new sources and can encourage generation efficiency. The allocation report indicates that an updating output system is likely to result in more generation efficiency and ancillary environmental benefits, relative to the updating heat input systems proposed in the October 21, 1998 section 126 proposal or the permanent allocation systems suggested by commenters. The analysis also shows that updating on the basis of fuel input rather than electricity output would result in higher emissions control costs and higher fuel use. Therefore, the Agency is committing to issuing future regulations that adopt an updating allocation system based on output that will be used to determine allocations starting in the 2008 control period.
The Agency disagrees with commenters who suggest that an updating output system would provide no air quality benefit and could hinder attainment of the NAAQS in some areas. The Agency believes that a permanent allocation based on, output-based and input-based systems would result in the same air quality impacts, and that, on an updating basis, differences would likely exist. However, those differences would only be in ancillary environmental impacts and in emission control costs, not in the overall level or impact of ozone season NO
The Agency reiterates that it is strongly committed to moving to an updating output-based allocation system as soon as practicable. However, 2008 is the first year for which output-based allocations can be determined.
For the reasons discussed above, EPA must obtain reliable and complete output data before issuing future allocations based on output. The monitoring and reporting requirements that are necessary to provide EPA with the appropriate output data are not yet in place. Questions related to the specific provisions of part 97 regarding output-based allocations have not yet been addressed as well.
Further, in today's rule, the Agency is providing sources their allocations three years prior to the relevant control season. The Agency proposed this approach in both the NO
In addition, the Agency believes that allocations for multiple control periods should be calculated based on an average of multiple years of data when available. The Agency originally proposed to base the updated annual allocations on one year's worth of data. The Agency received comments that uniformly criticized basing updated allocations on only one year's worth of data. Most commenters suggested using several years of data in the baseline for determining future allocations in order to provide a more representative baseline. In today's rule, the Agency revised the proposed approach in response to these comments and in order to accommodate other changes the Agency has made to the proposed allocation method (see preamble section III.B.3.a.i.(2)). In the final allocation provisions, the Agency is issuing multiple years of allocations, rather than issuing annual updates, in order to provide sources greater certainty for compliance planning and to provide for the development of markets for NO
In general, the Agency believes that the longer the baseline period, the more representative the data. However, for determining the appropriate baseline period for the initial update, the Agency must balance the benefits of having a longer baseline period with its commitment to move to an output allocation system as soon as practicable. On balance, the Agency has decided that basing the first update on three years of data (2002-2004) would be sufficient time to provide for a representative baseline without unduly delaying implementation of an output allocation approach.
Therefore, since the Agency cannot start collecting output data until 2002 at the earliest and the Agency believes that about three years of data are appropriate for setting the baseline for allocations, the Agency cannot issue output allocations until 2005. The allocations issued in 2005 allocations will be based on data from 2002, 2003, and 2004. Because the Agency has decided that sources shall receive their allocations three years prior to the relevant control season and the Agency can not calculate output allocations until 2005, 2008 is the first year for which output-based allocations can be determined.
While the Agency has committed to finalizing an output-based allocation method for the subsequent updates, the Agency has not yet determined to what sources it should allocate based on output,
The EPA notes that whatever decision is made in the context of the Federal NO
(3)
In the future, EPA will allocate NO
The EPA provided unit-specific allocations along with the October 21, 1998 proposed section 126 rule to solicit comment on the underlying data used in the proposed allocations and the methodologies employed in determining the allocations. There were three sets of allocations that accompanied the three allocation bases that EPA proposed: heat input, output from fossil fuel-fired units, and output from all electricity generators. All three sets of allocations were based upon information for the highest two ozone season values during the years 1995 through 1997. EPA developed generation estimates for fossil fuel-fired units by multiplying the unit heat rate
Some commenters raised specific concerns regarding the data and methodology that were used in the context of output-based allocations. In particular, commenters noted that output-based allocations should be based on actual “measured” data and not “computed” data. Commenters suggested using the generation data on EIA forms 767 and 759. Another commenter suggested using the gross generation data that sources report under the Acid Rain Program. In general, commenters thought that these sources of data would be more accurate than using calculated values based on heat input and heat rate.
Commenters acknowledged that determining output-based allocations for non-utility generators is more difficult than for utility sources. Commenters suggested the following alternative sources of data:
• IPM heat rate values for specific units (instead of generic values);
• IPM generation values;
• data from States that currently require non-utility generators to provide data on heat-input;
• actual output data from 1995-97 that has been previously reported on EIA Form 860; or
• data from EIA form 867.
In response to these comments, EPA requested comment on a different set of supporting data that could be used for allocations on August 9, 1999 and again on September 15, 1999 (See 64 FR 43124 and 64 FR 50041). EPA made available heat input data for the 1997 and 1998 ozone seasons for large EGUs and net electric generation data from EIA form 759 for the 1995-1998 ozone seasons for large EGUs and for electric generators that do not combust fuel. The Agency specifically requested comment on those data where either: (1) EPA used data from a different source than it used in the proposed allocations (such as electric generation data, 1998 heat input data, and data provided based upon public comments) or (2) EPA found that entire categories of data were lacking (
The sources of the data are described in detail in the August 9, 1999 Notice of Data Availability. Heat input data for 1997 and 1998 were from the sources described above, primarily from data reported under the Acid Rain Program. EPA obtained net electric generation data in megawatt hours (MWh) for the ozone season (May through September) during the years 1995 through 1998 for each utility power plant that submitted EIA form 759. The Agency then apportioned the plant-level net electric generation data in EIA Form 759 to each unit at the plant. For fossil-fuel fired EGUs, EPA used heat input data (where available) to apportion the generation data. For electric generators that did not burn fuel, the Agency generally divided the plant-level generation using each generator's portion of the total nameplate capacity of all generators at the plant. EPA described the specific methods used to apportion electric generation more fully in the August 9, 1999 Notice of Data Availability and in the supporting documentation file “outmethd.txt” included with the data files. For non-utility generators, EPA found it necessary to provide calculated electric output data based upon heat rate and heat input data where commenters did not provide output data, because electric generation data for 1995 through 1998 were not publically available.
The public also commented on the data and the sources of the data that the Agency made available on August 9, 1999. Some commenters suggested that it would be better to use directly measured generation values for each unit, where these data are available on EIA form 767. Commenters stated that this would be more accurate than apportioning plant-level generation from EIA form 759 to individual units. In particular, comments stated that apportioning output-based allocations based upon heat input data does not recognize and reward efficiency differences. These commenters suggested that unit level accounting of output is necessary because, at some plants, different units have different owners.
The EPA will not be using output data (for the reasons discussed in section III.B.3.a.ii.(2)) for the initial allocation of NO
A number of commenters noted that the proposed output-based allocation methodology would penalize cogeneration facilities because it distributes the same amount of allocations to these sources as simple electric generators, even though cogenerators must consume more energy in order to provide useful thermal energy. The commenters stated that EPA should allocate allowances to cogeneration facilities for both thermal and electric output (or, as proposed by one commenter, use an option based on output sold). Commenters provided specific information and recommendations as to how EPA should calculate the thermal output of cogeneration facilities by using generic power-to-heat ratios or obtaining the necessary data directly from facilities. As the Agency works toward developing the infrastructure for an updating output allocation method, these comments will be considered.
The EPA agrees that using measured electric and thermal output from a cogeneration unit is likely to be more
(4)
The Agency received numerous comments on the new source set-aside proposal. One commenter noted that there should not be a set-aside for new sources and that existing sources should not have their NO
Some commenters raised specific concerns regarding the allocation of allowances to new sources. One commenter noted that initial allocation for new units should be based on the unit's applicable SIP NO
The Agency agrees with the commenters who suggested that a new source set-aside is an effective mechanism for integrating new sources into the Federal NO
Based on the analysis conducted for the NO
In the October 21, 1998 section 126 proposal, the Agency solicited comment
The Agency agrees with the commenters who suggested that new sources are unlikely to need allocations based on an emission rate of 0.15 lb/mmBtu. One commenter pointed out that allocating at that level would allocate an unrealistic level of allowances and could potentially quickly use up the new source set-aside. Therefore, in order to avoid over-subscription, the set-aside for the initial allocation period in today's rule allocates to new sources based on the lesser of 0.15 lb/mmBtu or the permitted level multiplied by the source's utilization at maximum operating capacity (see docket A-97-43, Category IV-A-06 for a discussion of emission rates of new sources). As proposed, the Agency has retained the procedure at the end of the control period for adjusting allocations based on actual utilization (
The EPA is concerned that under a first-come, first-served system, some new sources may not receive allowances from the set-aside. Therefore, the Agency agrees with the commenter that suggested that allowances from the new source set-aside should be distributed in the spring before the relevant control period to all sources that have submitted approved applications for allowances from the set-aside. If the number of approved allowances to be distributed exceeds the number in the set-aside, the allowances will be distributed proportionally to those sources with approved applications. In that way, all new sources will know before the control season that they will have access to allowances and will be able to estimate the amount that will remain after adjusting for actual heat input. In the unlikely event that the number of allowances needed by new sources for compliance exceeds the supply, new units can purchase the needed balance of allowances from the market.
To accommodate this change, part 97 has been revised to require all applications for allowances from the new source set-aside to be received by January 1 of the year for which the unit is applying for allowances from the set-aside. The Agency will review all the allowance requests and determine by order the allowance allocations from the set-aside as described above by April 1. The final part 97 also includes revised language which describes how the Agency will allocate the available allowances if, in total, new NO
(5)
The final part 97 includes provisions for calculating an initial unadjusted allocation amount for each unit as well as provisions for adjusting that initial amount to ensure that the total allowances issued matches the portion of each State (or partial State) trading program budget that is available for distribution to existing sources. Initial unadjusted allocations to existing NO
While the Agency has committed to using output data to determine the allocations for each five year block following 2007, specific rule provisions have not yet been developed. Until the measurement and reporting methods have been developed, the Agency can not include rule language for an output based allocation method in part 97. Therefore, part 97 includes rule language for allocations based on heat input, rather than output, for the initial allocations and for future allocations. This provides a default emission limitation methodology for the control periods starting in 2008 in the event that the Agency does not develop an updating output-based methodology in
Proposed (and final) §§ 97.42(b), (c), and (d) provide for the allocation of NO
Therefore, as proposed, the Administrator will determine NO
As stated above, the EPA will determine allocations and record them in the NATS on an annual basis 3 years prior to the relevant control period. This will allow a State, as part of an approved SIP, to submit allocations up to 3 years prior to the relevant control period and have those allocations replace the allocations EPA was planning to determine as part of the Federal NO
(2)
The Agency did not receive comment specific to non-EGUs on the schedule for updating allocations. Rather, the Agency received numerous comments with respect to the general proposal for updating the allocations annually after the initial three year period for all sources subject to the section 126 control remedy. These comments are summarized in section III.B.3.a.i.(2).
After reviewing the comments, the Agency has determined that an allocation system that updates every 5 years provides an appropriate balance between accommodating changing market conditions (by incorporating new sources and excluding sources that shutdown) and providing more certainty (by fixing the allocation amount for 5 years) for sources in their compliance planning. The Agency agrees with the commenters that an annually updating system could create a level of uncertainty for sources, even though that uncertainty is reduced by issuing the allowances at least 3 years prior to the relevant control period, that may interfere unduly with compliance planning and cause market distortions. Most of the commenters suggested that EPA issue allocations for a longer time period (at least 5 years).
Updating can provide a mechanism for incorporating new sources into the program. As stated in the October 27, 1998 final NO
EPA recognizes that an updating heat input methodology can create some disincentive for increased efficiency. However, the cap on total NO
Therefore, as with EGU allocations, while the Agency will not record the non-EGU allocations in the unit accounts until April 1 of the year 3 years preceding each relevant control period, the allocations for 2004, 2005, 2006, and 2007 will be the same as the allocations for the 2003 control period. After this initial five year period, EPA will update the allocations every 5 years while still ensuring that sources know their allocations 3 years prior to the relevant control season. For example, by April 1, 2005, sources will know their allocations for the control periods 2008-2012. By April 1, 2010, sources will know their allocations for the control periods 2013-2017.
(3)
One commenter noted that it is inappropriate to determine the NO
In response to these comments, in the August 9, 1999 Notice of Data Availability, the Agency requested that non-EGUs provide heat input data from May through September for the years 1996, 1997, and/or 1998 where the heat input from May through September for the year 1995 is not representative of a non-EGU's operation over the last several years. The Agency will continue to use 1995 data for determining the initial allocations for non-EGUs because the 1995 data are the most recent data the Agency knows are currently available for non-electric generating units, and the 1995 data has been through several rounds of public review. However, where commenters provided data for non-EGUs for additional years (1996-1998), EPA used the average of the two highest ozone seasons of heat input to calculate unadjusted allocations, as the Agency does for all EGUs. (See section III.B.3.b.ii.(3), below, regarding the sources of data used for allocations.)
For the subsequent allocations, the Agency will use the same approach as that adopted for EGUs. Today's final rule adopts an updating allocation approach for non-EGUs that bases the updated allocations on an average of the data from the 5 most recent years. As stated in Section III.B.3.a.i., because the Agency has moved from an annually updating allocation system (as described in the proposal) to a system that updates every 5 years, variations in allocations could have a more lasting effect. An unusually low year of operation could affect allocations for 5 years if only one year of data is used as the basis for the update. Therefore, the Agency is using all 5 of the most recent years to ensure that data from each year contributes equally to the eventual allocation level.
However, as is the case for EGUs, for the period 2008-2012, data from the 5 years immediately preceding the year in which the allocations will be determined may not be available. Therefore, allocations will be based on an average of data from the years immediately preceding 2005 (the year in which the 2008-2012 allocations will be determined) for which data is available. The Agency expects sources to begin monitoring in 2002, and therefore data should be available for the 2002, 2003, and 2004 control periods. Consequently, the 2008 through 2012 allocations will be based on the average of the data from the 2002, 2003, and 2004 control seasons. For all subsequent updates, 5 years of data will be available and will be used in the allocations. For example, the 2013-2017 allocations will be based on the average of the data from the 2005, 2006, 2007, 2008 and 2009 control seasons.
ii. Basis for non-EGU Allocations. (1)
Some commenters disagreed with a heat-input based approach for non-EGUs. One commenter noted that non-EGU allocations should not be based on the regional average controlled emission rate of 0.17 lb/mmBtu. According to the commenter, EPA should base the allocation emission rate on the uncontrolled emission rate used to develop the State budgets and the reduction percentage found to be cost-effective in determining the State's non-EGU budget. Another commenter added that the use of the 0.17 lb/mmBtu rate requires reductions greater than the 60 percent EPA found to be cost effective. One commenter noted that the use of heat input as the basis for determining allocations for large non-EGUs in the trading program is questionable and that this “fuel-neutral” approach is arbitrary and capricious because it favors natural gas usage at the expense of coal, oil, wood, and other fuels.
The Agency has decided to maintain the heat input-based approach used in the proposal for allocating NO
The Agency agrees with commenters that on an individual unit basis, the heat input-based approach described above could result in individual unit allocations that differ from a 60 percent reduction at that unit (a 60 percent control level would result in a range of emission rates). The heat input approach is a fuel neutral approach that encourages higher emitting plants to control more. However, the Agency disagrees with the commenter that asserted that the use of the 0.17 lb/mmBtu emission rate requires greater reductions across the control region than the 60 percent used in determining the overall budgets. As discussed in the final NO
The Agency plans to issue each subsequent update of the non-EGU allocations based on heat input. This differs from the approach adopted for EGUs because unlike for EGUs, the Agency is not confident yet that output-based allocations for all non-EGUs are justified or that a reasonable approach for collecting accurate output data can be developed for all non-EGUs. The Agency acknowledges the commenters' suggestions for approaches that may be used to calculate output-based allocations for non-EGUs but maintains that it currently does not have sufficient information or basis for justifying output-based allocations for large non-EGUs. EPA does not have access to thermal (steam) output data for non-EGUs. Since the issuance of the proposal, the Agency has held meetings with the Updating Output Emission Limitation Workgroup, a stakeholder group concerning output-based allocations. Some workgroup members have raised a number of issues and concerns that they believe may make it undesirable and perhaps difficult or impossible to monitor thermal output data and use it as the basis for updated NO
Industrial boiler owners also questioned whether output-based allocations are appropriate for non-EGUs, even if they are technically feasible. Workgroup members raised several issues that do not exist for power plants. For example, currently thermal output from industrial boilers is monitored primarily for boiler control and safety, rather than for sale or for determining unit efficiency, and so the available monitoring systems may be less accurate than available for measuring power plant output. Additionally, there does not exist an industrial boiler equivalent of the interstate electricity “grid” that allows more efficient EGUs to be dispatched more frequently. This may affect whether output-based allocations for non-EGUs would have the same potentially beneficial effects on efficiency and the environment as output-based allocations. Because of the lack of data and the issues raised by these workgroup members, the Agency maintains that further discussion and further rulemakings are necessary to address these issues. Therefore, at this time the Agency is deciding to use heat input as the basis for allocating initial NO
(2)
As discussed above in section III.B.3.a.i.(3), some commenters expressed support for a non-EGU allocation methodology that would be similar to the methodology used for EGUs. One commenter suggested that operators should be allowed to propose a typical year or series of years if 1995 was not typical for their operations. Other commenters suggested that the Agency request steam output data and use this data to establish output-based allocations for non-EGUs.
EPA proposed unit-specific allocations for non-EGUs in Appendix B of proposed part 97 (63 FR 56292). The Agency based these allocations upon 1995 unit heat input data. EPA developed these heat input data in the process of developing the emission inventories used to establish State budgets. EPA solicited comment on the underlying data used in those allocations and the methodology used in determining the allocations. In particular, EPA requested comment on supporting data that could be used for allocations on August 9, 1999 and again on September 15, 1999 (See 64 FR 43124 and 64 FR 50041). In the August 9, 1999 Notice of Data Availability, EPA made available data files that, among other things, contained heat input data for large non-EGUs for the ozone season during the year 1995 (
In general, EPA agrees that using more years of baseline data for non-EGUs could be more representative of unit operation over longer periods of time. However, EPA is aware of no complete databases of heat input data or NO
(3)
The Agency did not receive any comment specific to the treatment of new non-EGUs. Commenters generally addressed their comments as summarized in section III.2.B.ii.d. to the treatment of new sources in general or new EGUs specifically. Therefore, for the reasons discussed in section III.2.B.ii.d., the Agency is establishing a new source set-aside for non-EGUs consistent with the new source set-aside for EGUs. The Agency believes that a new source set-aside of 5 percent is appropriate for the first five year period of the program. Likewise, for the updated allocation periods, the new source set-aside will have to cover 10 years of new source growth (as compared to 5 years in the proposal)
The Agency is finalizing the following approach to distributing the allowances from the new source set-aside to new non-EGUs. A new non-EGU can apply to receive allowances from the new source set-aside at the lower of 0.17 lb/mmBtu or its permitted rate multiplied by the heat input the unit would be projected to use if it operated at maximum capacity. After the control period, the allocation is subject to a deduction to reflect the unit's actual heat input, and any allowances deducted for this reason are transferred back to the new source set-aside from which they were allocated. At the end of each relevant control period, EPA will return any allowances remaining in the set-aside on a pro-rata basis to the existing units, i.e., the units that received an original allocation that was adjusted to create the new source set-aside in the State.
As was indicated in section III.2.B.ii.d., the EPA is concerned that under a first-come, first-served system, it is possible that some new sources may not receive allowances from the set-aside. Therefore, the Agency will determine by order the allowance allocations from the new source set-aside by April 1 of the relevant control period to all sources that have submitted approved requests for allowances from the set-aside. If the number of approved allowances to be distributed exceeds the number in the set-aside, the allowances will be distributed proportionally to those sources with approved applications. In that way, all new sources will know prior to the control season that they will have access to allowances. Those new sources receiving allowances from the set-aside will still be subject to reduction based on actual heat input at the end of the control period. In the unlikely event that the number of allowances needed by new sources for compliance exceeds the supply, new units can purchase the needed balance of allowances from the market.
To accommodate this change (consistent with the change made for new EGUs), part 97 has been revised to require all non-EGU applications for allowances from the new source set-aside to be received by January 1 of the year for which the unit is applying for allowances from the set-aside. The Agency will review all the allowance requests and determine the allowance allocations from the set-aside as described above by April 1. The final part 97 also includes revised language which describes how the Agency will allocate the available allowances if, in total, new NO
(4)
For each five year block following 2007, the heat input used in the allocation calculation for large non-electric generating units will equal the average of the heat input data from the 5 years preceding the year in which the update is calculated except for the
New non-EGUs may apply to receive allowances from the 5 percent set-aside. New sources with approved set-aside allowance requests will receive allowances based on the lower of either 0.17 lb/mmBtu or their permitted rate multiplied by their utilization at maximum designed heat input. If approved allowance requests exceed the number of allowances available in the set-aside, the Agency will distribute the allowances on a pro-rata basis. Each unit would be subject to a reduction in their allocation at the end of the season (if necessary) so that they only keep an allocation based on their actual heat input. Remaining allowances in the new source set-aside will be redistributed back to existing sources.
As described in section III.B.3.a.ii.(5) of this preamble, proposed (and final) §§ 97.42(b), (c), and (d) provide for the allocation of NO
The EPA received comments in response to the proposals for the NO
In the October 21, 1998 section 126 rule, EPA proposed to include a compliance supplement pool which was analogous to the pool in the NO
In today's rule, EPA is finalizing the method by which EPA will distribute the allowances in the compliance supplement pool to individual units. The October 21, 1998 action proposed two options for distributing the pool allowances. Under the first option, EPA would distribute pool allowances for early reduction credits only. Under the second option, EPA would distribute a portion of the pool allowances as early reduction credits and would reserve some remaining portion for sources that demonstrate a need for a “direct” distribution method. (See 63 FR 56319-20). Today's part 97 provides for the distribution of the compliance supplement pool allowances for early reduction credits only. Sources may request early reduction credits for reductions made during the 2001 and 2002 ozone seasons equal to the difference between 0.25 lb/mmBtu and the unit's NO
Today's final rule adopts the early reduction distribution method proposed on October 21, 1998 with one exception. Under the proposal, the credits were distributed on a first come, first served basis with requests due by October 31 of the year for which early reduction credits are requested. Under today's final rule, sources must submit all requests for early reduction credits by February 1, 2003. (Please see below for a detailed discussion of why EPA changed the early reduction credit request deadline).
EPA notes that recent information reinforces EPA's initial determination that there is very little or no risk to the electricity industry and electricity reliability from compliance with the section 126 action. First recent reports from the North American Electric Reliability Council (NERC) and the Mid Atlantic Area Council found that compliance with the NO
Despite this recent information further suggesting that a compliance supplement pool may not be needed, the Federal NO
EPA received numerous comments on its proposal for a compliance supplement pool under the section 126 control remedy. Included in the comments were several advocating for allowing unlimited generation of early reduction credits,
Aside from the comments advocating for unlimited generation of early reduction credits, EPA received no other comments on its proposal to use the same compliance supplement pool in both its NO
The State distribution of the compliance supplement pool listed in table III-1 is identical to the distribution promulgated in the December 1999 “Technical Amendment to the Finding of Significant Contribution and Rulemaking for Certain States for Purposes of Reducing Regional Transport of Ozone” with the exception of the seven States no longer covered by the section 126 action and the four partial states (Indiana, Kentucky, Michigan and New York).
As delineated in § 97.43, any NO
In addition, under today's final rule, sources located in States in the OTC region that are subject to this section 126 action will be allowed to bring their banked 2001 and 2002 vintage OTC allowances into the NO
Under both the NO
In the October 21, 1998 proposed section 126 rule (63 FR 56292), EPA solicited comment on other alternatives for distributing the compliance supplement pool including distributing the pool to States and allowing States to distribute their pool to their respective sources. The EPA also proposed another alternative for distribution of the pool by the Agency to sources. Using this method, EPA would first allocate NO
Commenters from electric utilities and other industries commented in favor of letting the States distribute the compliance supplement pool, citing increased flexibility for the States and concerns about logistical delay if EPA awards them. One commenter suggested that the responsibility be given to States with the stipulation that if a State fails to inform EPA of how it will distribute the pool, EPA will distribute it under a default procedure.
Under the assumption that EPA would distribute the compliance supplement pool, nearly all of the commenters agreed that at least a portion of the compliance supplement pool should be distributed for early reduction credits. Commenters from industries, environmental organizations and State agencies argued that distribution exclusively as early reduction credits would stimulate the market and encourage early reductions. The remaining commenters, all from electric utility or other industries, argued in favor of a combination of early reduction credits and direct distribution. These commenters asserted that since the credits must be accepted by EPA and are subject to a ratcheting down if there is over-subscription to the pool, companies have no guarantee that they will receive early reduction credits and therefore cannot rely on them in their compliance strategies. The commenters further asserted that only direct distribution guarantees that sources who actually need the additional allowances will receive them.
One commenter who supported flow control argued that allowances carried over into the Federal NO
The EPA also received comment on the proposed requirements for early reduction credits. Numerous commenters argued that reductions in 2000 should be eligible. Commenters proposed that sources should only be required to reduce their NO
One commenter argued that in the case of over-subscription to the compliance supplement pool,
Part 97 is a federal program designed to be implemented and administered directly by EPA in accordance with section 126 of the Clean Air Act. For this reason, EPA decided to retain the responsibility of distributing the pool to sources and finalized today's rule accordingly. This is consistent with the fact that EPA is already allocating the NO
The Agency disagrees with commenters who argued that distribution by EPA would cause delay. The EPA has committed, in today's final rule, to issuing, allocating and recording all NO
Under the Federal NO
While EPA acknowledges that there may be some degree of uncertainty regarding the number of credits a source will receive, it disagrees with the commenters' assertion that EPA's approach to distributing compliance supplement pool allowances for early reduction credits gives sources no certainty that they will receive allowances and that sources therefore cannot rely on them when developing compliance strategies. EPA's approach provides assurance that some NO
Today's final rule provides that, if there is over-subscription of the compliance supplement pool, NO
As finalized, part 97 also allows banked 2001 and 2002 vintage OTC allowances to be carried over into the NO
The EPA disagrees with the comment that early reduction credits should be considered “banked” at the start of the control period in 2003 and therefore subject to flow control if applicable. EPA included the compliance supplement pool as an additional flexibility mechanism for sources during the first 2 years (2003 and 2004) during which they are required to comply. To the extent compliance flexibility is needed, it is most likely to be needed in the first two control periods of the program. The EPA is granting sources the full flexibility provided by the pool in the 2003 and 2004 control periods by not implementing flow control, regardless of the number of banked allowances, until 2005. (For a discussion of why EPA delayed implementation of flow control from 2004 to 2005 see below, section III.B.5)
Today's rule finalizes early emissions reduction requirements for credits aimed at ensuring that the reductions are: (1) Real, surplus and quantifiable and (2) achieving full subscription of the pool. Under-subscription would mean that sources did not have access to all of the allowances available to them. Over-subscription might encourage sources to turn off NO
Under the NO
The year 2000 marks the earliest opportunity for a verified baseline. Today's rule requires units applying for early reduction credits to report their NO
In addition, today's final rule requires that units for which early reduction credits are requested must be in full compliance with State or federal NO
To further ensure that early reductions are real and surplus, today's rule also requires sources to reduce their NO
Requiring a unit to reduce its NO
At less stringent emission control level requirements such as 0.30 lbs/mmBtu or 0.35 lbs/mmBtu, the analysis showed units with SCR installed in 2001 and 2002 could generate enough early reduction credits to oversubscribe the compliance supplement pool by
However, EPA expects units with SNCR also to earn early reduction credits and conducted an similar analysis to estimate the number of credits units with SNCR could generate. For this analysis, EPA made the same assumption as it did for SCR installation,
Although this analysis projects the amount of potential early reduction credits on a region wide bases, EPA maintains that the analysis is also indicative of the potential amount of early reduction credits at the statewide level. The basic assumptions underlying the region-wide analysis also apply on a State-wide basis. In its region-wide analysis, EPA assumed that units would install a range of controls (specifically SCR and SNCR) throughout the region. Based on IPM projections, EPA believes that there will be a range of controls installed, including SCR and SNCR, in most individual States. Similarly, EPA believes that its assumption of the frequency of installation (
Banking is generally defined as allowing sources that make emissions reductions beyond current requirements to save and to use these excess reductions to exceed requirements in a later control period. Today's final rule allows banking consistent with the October 21, 1998 proposed section 126 rule (63 FR 56312). Allowances not used for compliance may be “banked,”
Allowances are valid until used for compliance or deducted from an account for other purposes. With one exception (
Citing it as a mechanism for increased flexibility and cost savings, the commenters unanimously supported banking. The EPA agrees with the commenters that banking provides flexibility to sources. It allows them to make reductions beyond required levels and “bank” the unused portion for use or sale later. Banking has several advantages: It can encourage earlier or greater reductions than are required from sources, stimulate the market, and encourage efficient use of the market. Banking can also provide flexibility in achieving emissions reduction goals,
The EPA is finalizing the proposed regionwide flow control mechanism to control the use of banked allowances when a significant percentage of all allowances are banked with one exception. Under the October 21, 1998 section 126 proposal, flow control, if applicable, would have begun in 2004 (
The majority of the commenters disagreed with restricting the use of banked allowances. Commenters asserted that flow control will decrease sources' flexibility and discourage both the use of the market and early emissions reductions. Numerous commenters pointed to unrestricted banking in the Title IV Acid Rain Program as a key reason that the Acid Rain Program is cost effective. A few commenters suggested modified flow control mechanisms, such as setting the trigger level for flow control at 20 percent rather than 10 percent of the allowable NO
The Agency received several comments that supported flow control. Commenters stated that banking restricted by flow control still provides flexibility for sources while limiting the potential for “excessive use” of banked allowances in a given control period leading to increased ozone.
Today's rule aims to achieve specified limits on ozone season NO
The EPA changed the first year in which flow control may be triggered from 2004 under the proposal, to 2005 under final part 97. The EPA delayed flow control's implementation date in response to commenter's concerns regarding the feasibility of installing the NO
However, the Agency does not believe it is appropriate to delay implementation of flow control beyond 2005. Section 126 requires named sources to eliminate their significant contribution to downwind non-attainment as expeditiously as practicable. Further, any delay beyond 2005 would potentially interfere with the attainment needs of downwind petitioning States. Downwind petitioning states generally must demonstrate attainment by 2007, and to do so they will have to rely on three years of air quality data, from 2005 through 2007. Were flow control delayed beyond 2005 there is a risk that excessive use of banked allowances in 2005 would allow continued significant contribution in that year, which would in turn jeopardize the attainment goals of the downwind States. The EPA believes that delaying the implementation of flow control by just one year, from 2004 to 2005, together with adopting the compliance supplement pool, strikes an appropriate balance between commenters' concerns and the environmental goal of 126,
EPA notes that the fact that the Acid Rain regulations provide for unlimited banking of sulfur dioxide allowances is not relevant to the treatment of banking here. In developing the Acid Rain regulations, EPA did not adopt any limitation on banking because title IV itself provides for unlimited banking. See 42 U.S.C. 7651a(3) (definition of “allowances”) and 7651b(b) (stating that an allowance authorizes emissions of 1 ton of sulfur dioxide in the current or any later year). No similar statutory provision applies to the NO
Commenters also raised concerns that flow control will discourage early emissions reductions. While EPA agrees that flow control may lessen the incentive to make early reductions, the Agency disagrees with the assertion that it removes all incentives for early emissions reductions. Flow control has a limited effect because it does not prohibit a source from banking or selling excess NO
The EPA disagrees with the commenters' assertions that flow control will discourage the use of the market and limit sources' flexibility. As discussed above, flow control has limited effects and does not significantly reduce the benefits
When EPA proposed the part 96 NO
By delaying the implementation of flow control under the section 126 control remedy until 2005, EPA is giving sources trading under the Federal NO
Today's final rule finalizes monitoring provisions in subpart H of part 97. This subpart references the monitoring and reporting requirements of subpart H of part 75. The provisions of subpart H of part 75 were finalized on October 27, 1998 and revised on May 26, 1999 (See 63 FR 57498-57514 and 64 FR 28624-28630).
In general, EPA has retained essentially the same monitoring provisions in part 97 that it proposed. Sources subject to the Federal NO
• Fuel sampling and analysis and fuel usage to determine heat input rate for all gas-fired and oil-fired units (Appendix D of part 75);
• Unit-specific correlations of NO
• The less rigorous monitoring procedures in § 75.19, for gas-fired and oil-fired units that emit less than a certain tonnage
Today's final rule includes some revisions to subpart H of part 97 to be consistent with the May 26, 1999 revisions to part 75. For example, EPA has revised the language of § 97.70(c) to allow for conditional validation of data before certification testing is completed. See 64 FR 28564 and 28575, May 26, 1999. Similarly, § 97.72 is revised to provide that data are considered invalid and must be replaced by substitute data when monitors do not meet quality assurance or data validation requirements for certification, recertification, or quality assurance testing, as set forth in part 75. See 64 FR 28575-28577. By further example, in § 97.71(b)(2), the Agency revised language concerning changes to a monitoring system that require recertification to be consistent with recent changes to § 75.20(b). See 64 FR 28582 and 28594. In addition, EPA revised the deadlines in § 97.74(d)(2) for submission of quarterly reports for units not subject to the Acid Rain Program. The Agency made these revisions to be consistent with changes in § 75.74(c) concerning reporting for the ozone season, instead of the entire year. See 64 FR 28581-28583. Further, throughout subpart H of part 97, the Agency uses the terms “heat input rate” and “stack flow rate” instead of “heat input” or “flow” to clarify the value that monitoring equipment measures on an hourly basis during unit operation and that must be reported for each hour of unit operation. This is consistent with the use of these terms in the revisions to part 75. See 64 FR 28664-28665 and 28668-28671. In order to clarify the distinction between “heat input” and “heat input rate,” the Agency added a definition for “heat input rate” in § 97.2. Further, the “heat input” definition itself is revised to state clearly the units of measure (
Today's final rule also revises subpart H to reflect the approach that EPA is adopting for allocating NO
In today's final rule, EPA also adopted some substantive changes from subpart H of part 96 and the October 21, 1998 proposed section 126 rule in order to simplify certain monitoring provisions. For example, the final rule reflects the following changes. First, language is added to § 97.71(b)(3)(iv)(D) to make it clear that the procedures for lost certification apply either to notices of disapproval of certification applications or to notices of disapproval of certification status through audit decertification. Second, the various dates in proposed § 97.71(c) for provisional certification of the low mass emissions excepted methodology under § 75.19 are removed and replaced by a few more general dates. For units that do not have certified monitoring equipment when the NO
In today's final rule, EPA also adopted some minor word changes from subpart H of part 96 and the October 21, 1998 proposed section 126 rule that clarify, but do not alter the substance of, the provisions. First, § 97.70(b) includes minor word changes that restate the compliance deadlines in proposed § 97.70(b) to distinguish more clearly among the deadlines based on whether the unit is under § 97.4(a)(1) or § 97.4(a)(2) (
Under subpart H of part 97, EPA requires sources in the Federal NO
Subpart H of part 97 addresses monitoring and reporting requirements including general requirements, initial certification and recertification procedures, out of control periods, notifications, recordkeeping and reporting, and petitions. The provisions are essentially the same as the monitoring-related provisions in subpart H of part 96, with cross references to the appropriate sections of parts 75 and 97.
Some of the differences between the provisions reflect the fact that administration of the monitoring requirements will be overseen by only EPA under part 97, rather than by both EPA and the permitting authority under part 96. As a result, for example, monitoring certification applications under part 97 will be submitted to the Administrator and the appropriate EPA Regional Office in addition to the permitting authority, and the Administrator, not the permitting authority, will act on the applications. Further, the Administrator will process all audit decertifications and all petitions for alternatives to the monitoring requirements.
A number of commenters expressed support for the proposed monitoring requirements in part 75, subpart H. A few commenters agreed that part 75, subpart H should be used as the basis for monitoring requirements for sources participating in the trading program. Commenters agreed that the ability to accurately and consistently account for all emissions should be included as one of the criteria for including sources in the trading program.
However, some commenters raised specific concerns regarding the monitoring requirements as proposed. In particular, these commenters raised concerns about the potential burden of
The EPA agrees with commenters who stated that it is appropriate to require sources to monitor and report emissions to demonstrate compliance with the requirements of the trading program using the provisions set forth in subpart H of part 75. Electric generating units serving generators of 25 MWe or less are not required to make emission reductions or to participate in the Federal NO
Many of the commenters who expressed concern about the use of CEMS specifically stated their concerns about requiring CEMS on relatively small or infrequently operated units. The EPA believes that this concern is addressed through two provisions in part 75 that allow reduced monitoring for these types of sources. Specifically, there are provisions in § 75.19 and Appendix E of part 75 that allow less expensive monitoring and exceptions to the use of NO
As explained in section VII.D.3. of the preamble to the final NO
Under subpart E of part 75, a source could use a predictive emission monitoring system (PEMS) if the NO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The EPA believes that today's action is a “significant regulatory action.” The adoption of the Federal NO
However, this action will not impose any additional costs or burdens on regulated entities beyond the costs that would have been associated with the requirements imposed by the May 25 NFR. This action is limited to changing the mechanism for making the findings under section 126, staying the affirmative technical determinations based on the 8-hour ozone NAAQS, and replacing the default control requirements for sources with the Federal NO
Removing the automatic triggering mechanism for making findings and instead making findings based on the 1-hour standard directly through this action simply changes the mechanism for making the section 126 findings. Those section 126 findings would have been made with or without today's action. Nor does this rule change the scope or substance of the findings. With the stay of the NO
Today's rule also stays the affirmative technical determinations based on the 8-hour ozone NAAQS. This action stays requirements that would otherwise have
For the May 25 NFR, EPA relied for purposes of Executive Order 12866 on analyses prepared for the NO
The RIA for the final section 126 regulations addresses the costs and benefits associated with reducing emissions at sources covered by the petitions submitted to EPA. The RIA concludes that the national annual cost of actions by affected sources to comply with the section 126 rule is approximately $1.0 billion (1990 dollars) and $1.2 billion (1997 dollars). The RIA also concludes that by using EPA's preferred approach to monetizing reductions in PM-related premature mortality—the Value of Statistical Life (VSL) approach—total monetized benefits (from reductions in ozone and PM concentrations) of the final section 126 rule are projected to be around $1.4 billion (1997 dollars). Any comparison of benefits and costs for this rule will provide limited information, given the incomplete estimate of benefits. However, even with the limited set of benefit categories we were able to monetize, monetized net benefits (
The adoption of a value for the projected reduction in the risk of premature mortality is the subject of continuing discussion within the economic and public policy analysis community within and outside the Administration. In response to the sensitivity on this issue, we provide estimates reflecting two alternative approaches. The first approach—supported by some in the above community and preferred by EPA—uses a Value of a Statistical Life (VSL) approach developed for the Clean Air Act Section 812 benefit-cost studies. This VSL estimate of $5.9 million (1997$) was derived from a set of 26 studies identified by EPA using criteria established in Viscusi (1992), as those most appropriate for environmental policy analysis applications.
An alternative, age-adjusted approach is preferred by some others in the above community both within and outside the Administration. This approach was also developed for the Section 812 studies and addresses concerns with applying the VSL estimate—reflecting a valuation derived mostly from labor market studies involving healthy working-age manual laborers—to PM-related mortality risks that are primarily associated with older populations and those with impaired health status. This alternative approach leads to an estimate of the value of a statistical life year (VSLY), which is derived directly from the VSL estimate. It differs only in incorporating an explicit assumption about the number of life years saved and an implicit assumption that the valuation of each life year is not affected by age.
Both approaches are imperfect, and raise difficult methodological issues which are discussed in depth in the recently published Section 812 Prospective Study, the draft EPA Economic Guidelines, and the peer-review commentaries prepared in support of each of these documents. For example, both methodologies embed assumptions (explicit or implicit) about which there is little or no definitive scientific guidance. In particular, both methods adopt the assumption that the risk versus dollars trade-offs revealed by available labor market studies are applicable to the risk versus dollar trade-offs the general population would make in an air pollution context.
EPA currently prefers the VSL approach because, essentially, the method reflects the direct, application of what EPA considers to be the most reliable estimates for valuation of premature mortality available in the current economic literature. While there are several differences between the labor market studies EPA uses to derive a VSL estimate and the particulate matter air pollution context addressed here, those differences in the affected populations and the nature of the risks imply both upward and downward adjustments. For example, adjusting for age differences may imply the need to adjust the $5.9 million VSL downward as would adjusting for health differences, but the involuntary nature of air pollution-related risks and the lower level of risk-aversion of the manual laborers in the labor market studies may imply the need for upward adjustments. In the absence of a comprehensive and balanced set of adjustment factors, EPA believes it is reasonable to continue to use the $5.9 million value while acknowledging the significant limitations and uncertainties in the available literature. Furthermore, EPA prefers not to draw distinctions in the monetary value assigned to the lives saved even if they differ in age, health status, socioeconomic status, gender or other characteristic of the adult population.
Those who favor the alternative, age-adjusted approach (
Using an alternative, age-adjusted approach to value reductions in premature mortality—the Value of Statistical Life Year (VSLY) approach—total monetized benefits are projected to be around $0.9 billion (1997$). The total monetized net benefits using this approach are approximately $−0.3 billion (1997$). Due to practical analytical limitations, EPA is not able to quantify and/or monetize all potential benefits of the section 126 rule.
The EPA submitted this action to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record. The docket is available for public inspection at the EPA's Air Docket Section, which is listed in the
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. The EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
As discussed above in section IV.A., today's action does not create any new requirements that would impose costs beyond those that would have been imposed under the May 25 NFR. Thus, this rule will not have a significant economic impact on a substantial number of small entities.
For the May 25 NFR, EPA prepared a Regulatory Flexibility Analysis, but noted that it would update the analysis upon promulgation of the final Federal NO
For purposes of assessing the impacts of the section 126 regulations at 40 CFR 52.34, as modified by today's rule, on small entities, small entity is defined as: (1) a small business that meets the criteria published in 13 CFR section 121, as shown in the following table:
(2) A small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently-owned and operated and is not dominant in its field.
We have determined that small entities will experience impacts under the section 126 regulations as described below.
The EPA estimates that the total number of small entities in the section 126 region owning one or more sources in the source categories covered by the rule under the now narrower scope of the effective section 126 requirements in 40 CFR 52.34 is approximately 379. The number of entities actually affected by the section 126 rule, presented by source category, is as follows: Electric Generating Units—80 small entities. This represents 45 percent of the potentially affected small entities (
This represents 4 percent of the potentially affected small entities owning these non-EGU sources in the final section 126 region (200).
The total number of small entities that will be affected by the effective section 126 requirements under 40 CFR 52.34 is therefore 88, or 25 percent of small entities that own sources in the final section 126 region that may be affected by this rule.
The EPA estimates that 16 small entities affected by the effective section 126 requirements under 40 CFR 52.34 have compliance costs of 1 percent or greater of their sales or revenues, and 8 have compliance costs of 3 percent or greater of their sales or revenues.
The EPA has tried to reduce the impact of the section 126 rule on small entities. The EPA has reduced the applicability of regulatory requirements based on several factors including input from the Small Business Regulatory Enforcement Fairness Act panel convened for the proposed section 126 rule (63 FR 56292, October 21, 1998), considerations of overall cost effectiveness, and administrative efficiency. A detailed description of the panel recommendations for reducing the impact of the final rule on small entities
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, 2 U.S.C. 1532, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rules with “Federal mandates” that may 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. A “Federal mandate” is defined to include a “Federal intergovernmental mandate” and a “Federal private sector mandate” (2 U.S.C. 658(6)). A “Federal intergovernmental mandate,” in turn, is defined to include a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” (2 U.S.C. 658(5)(A)(i)), except for, among other things, a duty that is “a condition of Federal assistance (2 U.S.C. 658(5)(A)(I)). A “Federal private sector mandate” includes a regulation that would impose an enforceable duty upon the private sector,” with certain exceptions (2 U.S.C. 658 (7)(A)).
The EPA has determined that this action does not include a Federal mandate that may result in estimated costs of $100 million or more for either State, local, or tribal governments in the aggregate, or for the private sector. This Federal action does not create any new requirements that would impose costs beyond those that would otherwise be imposed under the May 25 NFR, as discussed above in section IV.A. Accordingly, no additional costs to State, local or tribal governments, or to the private sector, would result from this action.
In the May 25 NFR, EPA relied upon an Unfunded Mandates Analysis prepared for the proposed section 126 rule. The EPA has updated this analysis to account for the now narrower scope of the effective section 126 requirements in 40 CFR 52.34. This “Government Entity Analysis For the Final Section 126 Petitions Under the Clean Air Act Amendments Title I,” is contained in the docket for this action and is summarized below.
This analysis examines the impacts of the section 126 requirements in 40 CFR 52.34 (excluding the stayed affirmative technical determinations based on the 8-hour ozone NAAQS) on both EGUs and non-EGUs that are owned by State, local, and tribal governments, as well as sources owned by private entities. These requirements affect 16 entities that own EGUs, and these EGUs are owned by 1 State and 15 municipalities. These requirements also affect 7 entities that own non-EGUs, and these non-EGUs are owned by 1 State and 5 municipalities. The overall costs are dominated by the 16 affected EGUs and are about $15 million per year. The EPA has not identified any units on Tribal lands that would be subject to the requirements. The cost impacts are only slightly higher than their production share, in comparison to all units in the region.
The EPA has determined that today's action contains no regulatory requirements that might significantly or uniquely affect small governments because today's action imposes no new additional requirements as discussed above. Moreover, the final section 126 requirements contained in 40 CFR 52.34 (the requirements of the May 25 NFR as modified by today's action) also do not significantly or uniquely affect small governments. The regulatory requirements do not distinguish between EGUs based on ownership. Consequently, the final section 126 rule contained in 40 CFR 52.34 has no requirements that uniquely affect small governments that own or operate EGUs within the affected region.
In the May 25 NFR, EPA relied upon an Information Collection Request (ICR) prepared for the proposed section 126 rule. For today's rule, EPA has updated the estimates contained in the ICR to account for the now narrower scope of the effective section 126 requirements in 40 CFR 52.34. These estimates of administrative burden costs are contained in the docket for this action and are summarized below.
Respondents/Affected Entities: Large fossil fuel boilers, turbines and combined cycle units that are subject to the current scope of section 126 requirements of 40 CFR 52.34.
Note that these are average estimates for the first 3 years of the program. The EPA estimates lower costs in the first 2 years of the program because fewer units will be participating at that time. The units that will be participating at that time are units that are applying for early reduction credits. The EPA also estimates that the highest compliance costs will occur in 2002, when the majority of the units that have to install and certify new monitors to comply with the program will do so. The EPA believes that the year 2003 will be more representative of the actual ongoing costs of the program. At that time, EPA estimates a burden of 120 hours per source and a cost of $15,785 per source.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Executive Order 13045 applies to any rule that (1) is determined to be “economically significant” as defined
This rule is not subject to Executive Order 13045, because this rule is not “economically significant” as defined under Executive Order 12866 and the Agency does not have reason to believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.
Nonetheless, we have evaluated the environmental health or safety effects of the affected pollutants on children, and found that there are no effects from changes in ozone and PM levels resulting from applying these regulatory requirements that are particular to children that are not found in other age groups. In conjunction with the final NO
Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. In conjunction with the final NO
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.
This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As discussed above, today's rule imposes no new requirements that impose compliance burdens beyond those that would already apply under the May 25 NFR. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. Nevertheless, EPA did consult with State and local officials throughout the section 126 rulemaking. (See 64 FR 28253-28254; 63 FR 57362-57363). Most fundamentally, the section 126 rulemaking is EPA's response to State petitions for EPA action. In addition, States were extensively involved in the Ozone Transport Assessment Group (OTAG), which was established to undertake an assessment of the regional transport problem in the eastern half of the United States and to develop solutions. The OTAG process included representatives of both upwind and downwind States. In the section 126 rulemaking, EPA has acted on section 126 petitions submitted by States that were involved in the OTAG process. All eight submitted petitions rely, in part, on the OTAG analyses for technical justification.
Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that
Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. As discussed above, today's action imposes no new requirements that would impose compliance burdens beyond those that would already apply under the May 25 NFR. Moreover, the final section 126 rule as modified by today's action will not impose substantial direct compliance costs on such communities. The EPA is not aware of sources located on tribal lands that could be subject to the requirements in 40 CFR 52.34. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply.
Section 12(d) of the National Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113 section 12(d) 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This rulemaking would require all sources that participate in the trading program under part 97 to meet the applicable monitoring requirements of part 75. Part 75 already incorporates a number of voluntary consensus standards. In addition, EPA's proposed revisions to part 75 proposed to add two more voluntary consensus standards to the rule (see 63 FR 28116-28117, discussing ASTM D5373-93 “Standard Methods for Instrumental Determination of Carbon, Hydrogen and Nitrogen in laboratory samples of Coal and Coke,” and American Petroleum Institute Section 2 “Conventional Pipe Provers” from Chapter 4 of the Manual of Petroleum Measurement Standards, October 1988 edition). The EPA's proposed part 75 revisions also requested comments on the inclusion of additional voluntary consensus standards. The EPA has recently finalized revisions to part 75 addressing some of the topics raised in EPA's proposed revisions to part 75. As part of this rule finalization, EPA incorporated two new voluntary consensus standards:
(1) American Petroleum Institute Petroleum Measurement Standards, Chapter 3, Tank Gauging: Section 1A, Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, December 1994; Section 1B, Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Tanks by Automatic Tank Gauging, April 1992 (reaffirmed January 1997); Section 2, Standard Practice for Gauging Petroleum and Petroleum Products in Tank Cars, September 1995; Section 3, Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Pressurized Storage Tanks by Automatic Tank Gauging, June 1996; Section 4, Standard Practice for Level Measurement of Liquid Hydrocarbons on Marine Vessels by Automatic Tank Gauging, April 1995; and Section 5, Standard Practice for Level Measurement of Light Hydrocarbon Liquids Onboard Marine Vessels by Automatic Tank Gauging, March 1997; and
(2) Shop Testing of Automatic Liquid Level Gages, Bulletin 2509 B, December 1961 (Reaffirmed October 1992), for § 75.19.
This rulemaking involves environmental monitoring or measurement. Sources that participate in the trading program are required to meet the monitoring requirements under part 75. Consistent with the Agency's Performance Based Measurement System (PBMS), part 75 sets forth performance criteria that allow the use of alternative methods to the ones set forth in part 75. The PBMS approach is intended to be more flexible and cost effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. The EPA is not precluding the use of any method, whether it constitutes a voluntary standard or not, as long as it meets the performance criteria specified. However, any alternative methods must be approved in advance before they may be used under part 75.
Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
This rulemaking to modify the May 25 NFR on several section 126 petitions is “nationally applicable” within the meaning of section 307(b)(1). At the core of the complete section 126 rulemaking (both the May 25 NFR and today's modification to that rule) is EPA's interpretation of sections 126 and 110(a)(2)(D)(i)(I). The EPA applied these interpretations uniformly to each section 126 petition.
For these reasons, the Administrator also is determining that this final action modifying the May 25 NFR regarding the section 126 petitions is of nationwide scope and effect for purposes of section 307(b)(1). This is particularly appropriate because in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has “scope or effect beyond a single judicial circuit.” H.R. Rep. No. 95-294 at 323, 324,
Thus, any petitions for review of final actions regarding today's section 126 rule must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Emissions trading, Intergovernmental relations, Nitrogen oxides, Ozone, Ozone transport, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Emissions trading, Intergovernmental relations, Nitrogen oxides, Ozone, Ozone transport, Reporting and recordkeeping requirements.
1. The authority citation for part 52 continues to read as follows:
42 U.S.C. 7401
2. Section 52.34 is amended by:
a. Removing paragraph (a)(6);
b. Redesignating paragraphs (a)(7) through (a)(10) as paragraphs (a)(6) through (a)(9), respectively;
c. Revising paragraph (b) introductory text;
d. Revising the heading of paragraph (c);
e. Revising the headings and introductory text of paragraphs (c)(1) and (c)(2);
f. Revising the heading of paragraph (e);
g. Revising the headings and introductory text of paragraphs (e)(1) and (e)(2);
h. Revising the heading of paragraph (g);
i. Revising the headings and introductory text of paragraphs (g)(1) and (g)(2);
j. Revising the heading of paragraph (h);
k. Revising the headings and introductory text of paragraphs (h)(1) and (h)(2); and
l. Revising paragraphs (i), (j), and (k).
The revisions read as follows:
(b)
(c)
(2)
(e)
(2)
(g)
(2)
(h)
(2)
(i)
(j)
(k)
3. Part 97 is added to subchapter C to read as follows:
42 U.S.C. 7401, 7403, 7426, and 7601.
This part establishes general provisions and the applicability, permitting, allowance, excess emissions, monitoring, and opt-in provisions for the federal NO
The terms used in this part shall have the meanings set forth in this section as follows:
(1) Flow monitor;
(2) Nitrogen oxides pollutant concentration monitors;
(3) Diluent gas monitor (oxygen or carbon dioxide);
(4) A continuous moisture monitor; and
(5) An automated data acquisition and handling system.
(1) For units that commenced operation before January 1, 1996, the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1995, or, if a unit had no heat input in 1995, during the last year of operation of the unit prior to 1995;
(2) For units that commenced operation on or after January 1, 1996 and before January 1, 1997, the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1996; or
(3) For units that commence operation on or after January 1, 1997:
(i) The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year; or
(ii) The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during
(1) For the life of the unit;
(2) For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or
(3) For a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.
(1) Any holder of any portion of the legal or equitable title in a NO
(2) Any holder of a leasehold interest in a NO
(3) Any purchaser of power from a NO
(4) With respect to any general account, any person who has an ownership interest with respect to the NO
(1) In person;
(2) By United States Postal Service; or
(3) By other means of dispatch or transmission and delivery. Compliance with any “submission,” “service,” or “mailing” deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.
Measurements, abbreviations, and acronyms used in this part are defined as follows:
(a) The following units in a State (as defined in § 97.2) shall be NO
(1)(i) For units that commenced operation before January 1, 1997, a unit serving during 1995 or 1996 a generator that had a nameplate capacity greater than 25 MWe and produced electricity for sale under a firm contract to the electric grid.
(ii) For units that commenced operation on or after January 1, 1997 and before January 1, 1999, a unit serving during 1997 or 1998 a generator that had a nameplate capacity greater than 25 MWe and produced electricity for sale under a firm contract to the electric grid.
(iii) For units that commence operation on or after January 1, 1999, a unit serving at any time a generator that has a nameplate capacity greater than 25 MWe and produces electricity for sale.
(2)(i) For units that commenced operation before January 1, 1997, a unit that has a maximum design heat input greater than 250 mmBtu/hr and that did not serve during 1995 or 1996 a generator producing electricity for sale under a firm contract to the electric grid.
(ii) For units that commenced operation on or after January 1, 1997 and before January 1, 1999, a unit that has a maximum design heat input greater than 250 mmBtu/hr and that did not serve during 1997 or 1998 a generator producing electricity for sale under a firm contract to the electric grid.
(iii) For units that commence operation on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr that:
(A) At no time serves a generator producing electricity for sale; or
(B) At any time serves a generator producing electricity for sale, if any such generator has a nameplate capacity of 25 MWe or less and has the potential to use no more than 50 percent of the potential electrical output capacity of the unit.
(b)(1) Notwithstanding paragraph (a) of this section, a unit under paragraph (a)(1) or (a)(2) of this section that has a federally enforceable permit that includes a NO
(2) The exemption under paragraph (b)(1) of this section shall become effective as follows:
(i) The exemption shall become effective on the date on which the NO
(ii) If the NO
(3) The permitting authority that issues a federally enforceable permit under paragraph (b)(1) of this section for a unit under paragraph (a)(1) or (a)(2) of this section will provide the Administrator written notice of the issuance of such permit and, upon request, a copy of the permit.
(4)
(ii) The Administrator will allocate NO
(A) The owners and operators of the unit must specify a general account, in which the Administrator will record the NO
(B) After the Administrator records a NO
(iii) A unit exempt under this paragraph (b) shall report hours of unit operation during the control period in each year to the permitting authority by November 1 of that year.
(iv) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under paragraph (b)(1) of this section shall retain, at the source that includes the unit, records demonstrating that the conditions of the federally enforceable permit under paragraph (b)(1) of this section were met, including the restriction on unit operating hours. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit met the restriction on unit operating hours.
(v) The owners and operators and, to the extent applicable, the NO
(vi) On the earlier of the following dates, a unit exempt under paragraph (b)(1) of this section shall lose its exemption:
(A) The date on which the restriction on unit operating hours described in paragraph (b)(1) of this section is removed from the unit's federally enforceable permit or otherwise becomes no longer applicable to any control period starting in 2003; or
(B) The first date on which the unit fails to comply, or with regard to which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on unit operating hours described in paragraph (b)(1) of this section during any control period starting in 2003.
(vii) A unit that loses its exemption in accordance with paragraph (b)(4)(vi) of this section shall be subject to the requirements of this part. For the purpose of applying permitting requirements under subpart C of this part, allocating allowances under subpart E of this part, and applying monitoring requirements under subpart H of this part, the unit shall be treated as commencing operation and, if the unit is covered by paragraph (a)(1) of this section, commencing commercial operation on the date the unit loses its exemption.
(viii) A unit that is exempt under paragraph (b)(1) of this section is not eligible to be a NO
(a) This section applies to any NO
(b)(1) Any NO
(2) The exemption under paragraph (b)(1) of this section shall become effective the day on which the unit is permanently retired. Within 30 days of permanent retirement, the NO
(3) After receipt of the notice under paragraph (b)(2) of this section, the permitting authority will amend any permit covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraphs (b)(1) and (c) of this section.
(c)
(2) The Administrator will allocate NO
(3) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit, records demonstrating that the unit is permanently retired. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit is permanently retired.
(4) The owners and operators and, to the extent applicable, the NO
(5)(i) A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the NO
(ii) A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a non-title V permit shall not resume operation unless the NO
(6) On the earlier of the following dates, a unit exempt under paragraph (b) of this section shall lose its exemption:
(i) The date on which the NO
(ii) The date on which the NO
(7) For the purpose of applying monitoring requirements under subpart H of this part, a unit that loses its
(8) A unit that is exempt under this section is not eligible to be a NO
(a)
(i) Submit to the permitting authority a complete NO
(ii) Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a NO
(2) The owners and operators of each NO
(3) The owners and operators of a NO
(b)
(2) The emissions measurements recorded and reported in accordance with subpart H of this part shall be used to determine compliance by the unit with the NO
(c)
(2) Each ton of nitrogen oxides emitted in excess of the NO
(3) A NO
(4) NO
(5) A NO
(6) A NO
(7) A NO
(8) Upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of a NO
(d)
(i) Surrender the NO
(ii) Pay any fine, penalty, or assessment or comply with any other remedy imposed under § 97.54(d)(3).
(e)
(i) The account certificate of representation under § 97.13 for the NO
(ii) All emissions monitoring information, in accordance with subpart H of this part; provided that to the extent that subpart H of this part provides for a 3-year period for recordkeeping, the 3-year period shall apply.
(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the NO
(iv) Copies of all documents used to complete a NO
(2) The NO
(f)
(2) Any person who knowingly makes a false material statement in any record, submission, or report under the NO
(3) No permit revision shall excuse any violation of the requirements of the NO
(4) Each NO
(5) Any provision of the NO
(6) Any provision of the NO
(g)
(a) Unless otherwise stated, any time period scheduled, under the NO
(b) Unless otherwise stated, any time period scheduled, under the NO
(c) Unless otherwise stated, if the final day of any time period, under the NO
(a) Except as provided under § 97.11, each NO
(b) The NO
(c) Upon receipt by the Administrator of a complete account certificate of representation under § 97.13, the NO
(d) No NO
(e) (1) Each submission under the NO
(2) The permitting authority and the Administrator will accept or act on a submission made on behalf of owner or operators of a NO
(a) An account certificate of representation may designate one and only one alternate NO
(b) Upon receipt by the Administrator of a complete account certificate of representation under § 97.13, any representation, action, inaction, or submission by the alternate NO
(c) Except in this section and §§ 97.10(a), 97.12, 97.13, and 97.51, whenever the term “NO
(a)
(b)
(c)
(2) Within 30 days following any change in the owners and operators of a NO
(a) A complete account certificate of representation for a NO
(1) Identification of the NO
(2) The name, address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NO
(3) A list of the owners and operators of the NO
(4) The following certification statement by the NO
(5) The signature of the NO
(b) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the account certificate of representation shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.
(a) Once a complete account certificate of representation under § 97.13 has been submitted and received, the permitting authority and the Administrator will rely on the account certificate of representation unless and until a superseding complete account certificate of representation under § 97.13 is received by the Administrator.
(b) Except as provided in § 97.12 (a) or (b), no objection or other communication submitted to the permitting authority or the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NO
(c) Neither the permitting authority nor the Administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any NO
(a) For each NO
(1) For NO
(2) For NO
(b) Each NO
(a)
(b)(1) For NO
(i) For any source, with one or more NO
(ii) For any source, with any NO
(2) For NO
(i) For any source, with one or more NO
(ii) For any source, with any NO
(c)
(2) For a NO
A complete NO
(a) Identification of the NO
(b) Identification of each NO
(c) The standard requirements under § 97.6; and
(d) For each NO
(1) “I certify that each unit for which this permit application is submitted under subpart I of this part is not a NO
(2) If the application is for an initial NO
(a) Each NO
(b) Each NO
(a) For a NO
(b) For a NO
(a)
(b)
(1) Identification of each NO
(2) At the NO
(3) At the NO
(4) The compliance certification under paragraph (c) of this section.
(c)
(1) Whether the unit was operated in compliance with the NO
(2) Whether the monitoring plan that governs the unit has been maintained to reflect the actual operation and
(3) Whether all the NO
(4) Whether the facts that form the basis for certification under subpart H of this part of each monitor at the unit or a group of units (including the unit) using a common stack, or for using an excepted monitoring method or alternative monitoring method approved under subpart H of this part, if any, have changed; and
(5) If a change is required to be reported under paragraph (c)(4) of this section, specify the nature of the change, the reason for the change, when the change occurred, and how the unit's compliance status was determined subsequent to the change, including what method was used to determine emissions when a change mandated the need for monitor recertification.
(a) The Administrator may review and conduct independent audits concerning any compliance certification or any other submission under the NO
(b) The Administrator may deduct NO
In accordance with §§ 97.41 and 97.42, the Administrator will allocate to the NO
(a) The NO
(b) By April 1, 2005, the Administrator will determine by order the NO
(c) By April 1, 2010, by April 1 of 2015, and thereafter by April 1 of the year that is 5 years after the last year for which NO
(d) By April 1, 2003 and April 1 of each year thereafter, the Administrator will determine by order the NO
(e) The Administrator will make available to the public each determination of NO
(a)(1) The heat input (in mmBtu) used for calculating NO
(i) For a NO
(A) For a unit under § 97.4(a)(1), the average of the two highest amounts of the unit's heat input for the control periods in 1995 through 1998; or
(B) For a unit under § 97.4(a)(2), the control period in 1995 or, if the Administrator determines that reasonably reliable data are available for control periods in 1996 through 1998, the average of the two highest amounts of the unit's heat input for the control periods in 1995 through 1998.
(ii) For a NO
(iii) For a NO
(2) The unit's heat input for the control period in each year specified under paragraph (a)(1) of this section will be determined in accordance with part 75 of this chapter. Notwithstanding the first sentence of this paragraph (a)(2):
(i) For a NO
(ii) For a NO
(b) For each group of five control periods specified in § 97.41(a) through (c), the Administrator will allocate to all NO
(1) The Administrator will allocate NO
(2) If the initial total number of NO
(c) For each group of five control periods specified in § 97.41(a) through (c), the Administrator will allocate to all NO
(1) The Administrator will allocate NO
(2) If the initial total number of NO
(d) For each control period specified in § 97.41(d), the Administrator will allocate NO
(1) The Administrator will establish one allocation set-aside for each control period. Each allocation set-aside will be allocated NO
(2) The NO
(3) In a NO
(i) 0.15 lb/mmBtu multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO
(ii) The unit's most stringent State or Federal NO
(4) In a NO
(i) 0.17 lb/mmBtu multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO
(ii) The unit's most stringent State or Federal NO
(5) The Administrator will review each NO
(i) Upon receipt of the NO
(ii) The Administrator will determine the following amounts:
(A) The sum of the NO
(B) For units exempt under § 97.4(b) in the State that commenced operation, or are projected to commence operation, on or after May 1, 1997 (for control periods under § 97.41(a)); May 1, 2003, (for control periods under § 97.41(b)); and May 1 of the year 5 years before beginning of the group of 5 years that includes the control period (for control periods under § 97.41(c)), the sum of the NO
(iii) If the number of NO
(iv) If the number of NO
(e)(1) For a NO
“Unit's NO
“Unit's actual control period heat input” is the heat input (in mmBtu) of the unit during the control period.
(2) The Administrator will transfer any NO
(f) After making the deductions for compliance under § 97.54(b), (e), or (f) for a control period, the Administrator will determine whether any NO
“Total NO
“Unit's NO
“State's trading program budget excluding allocation set-aside” is the State's trading program budget under § 97.40 for the control period to which the allocation set-aside applies multiplied by 95 percent, rounded to the nearest whole number of NO
(g) If the Administrator determines that NO
(1)(i) The Administrator will not record such NO
(ii) If the Administrator already recorded such NO
(iii) If the Administrator already recorded such NO
(2) The Administrator will transfer the NO
(a) For any NO
(1) Each NO
(2) NO
(3) Each NO
(4) The NO
(i) In the early reduction credit request, the NO
(ii) The early reduction credit request must be submitted, in a format specified by the Administrator, by February 1, 2003.
(b) For any NO
(1) The NO
(2) The early reduction credit request under paragraph (b)(1) must be submitted, in a format specified by the Administrator, by February 1, 2003.
(3) The NO
(c) The Administrator will review each early reduction credit request submitted in accordance with paragraph (a) or (b) of this section and will allocate NO
(1) Upon receipt of each early reduction credit request, the Administrator will make any necessary adjustments to the request to ensure that the amount of the early reduction credits requested meets the requirements of paragraph (a) or (b) of this section.
(2) After February 1, 2003, the Administrator will make available to the public a statement of the total number of early reduction credits requested by NO
(3) If the State's compliance supplement pool set forth in appendix D of this part has a number of NO
(4) If the State's compliance supplement pool set forth in appendix D of this part has a smaller number of NO
“Unit's allocation for early reduction credits” is the number of NO
“Unit's adjusted early reduction credits” is the amount of early reduction credits requested for the unit for 2001 and 2002 in early reduction credit requests under paragraph (a) or (b) of this section, as adjusted under paragraph (c)(1) of this section.
“State's compliance supplement pool” is the number of NO
“Total adjusted early reduction credits for all units” is the amount of early reduction credits requested for all units for 2001 and 2002 in early reduction credit requests under paragraph (a) or (b) of this section, as adjusted under paragraph (c)(1) of this section.
(5) By April 1, 2003, the Administrator will determine by order the allocations under paragraph (c)(3) or (4) of this section. The Administrator will make available to the public each determination of NO
(6) By May 1, 2003, the Administrator will record the allocations under paragraph (c)(3) or (4) of this section.
(7) NO
(8) NO
(a)
(b)
(a)
(1) A compliance account for each NO
(2) An overdraft account for each source for which the account certificate of representation was submitted and that has two or more NO
(b)
(A) Name, mailing address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NO
(B) At the option of the NO
(C) A list of all persons subject to a binding agreement for the NO
(D) The following certification statement by the NO
(E) The signature of the NO
(ii) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the application for a general account shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.
(2)
(i) The Administrator will establish a general account for the person or persons for whom the application is submitted.
(ii) The NO
(iii) Any representation, action, inaction, or submission by any alternate NO
(iv) Each submission concerning the general account shall be submitted, signed, and certified by the NO
(v) The Administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with paragraph (b)(2)(iv) of this section.
(3)
(ii) The alternate NO
(iii)(A) In the event a new person having an ownership interest with respect to NO
(B) Within 30 days following any change in the persons having an ownership interest with respect to NO
(4)
(ii) Except as provided in paragraph (b)(3)(i) or (ii) of this section, no objection or other communication submitted to the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NO
(iii) The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the NO
(c)
(a) Following the establishment of a NO
(b)
(a) The Administrator will record the NO
(b) By May 1, 2001, the Administrator will record the NO
(c) By May 1, 2002, the Administrator will record the NO
(d) By May 1, 2003, the Administrator will record the NO
(e) Each year starting with 2004, after the Administrator has made all deductions from a NO
(1) NO
(2) NO
(3) NO
(f)
(a) NO
(1) Were allocated for a control period in a prior year or the same year; and
(2) Are held in the unit's compliance account, or the overdraft account of the source where the unit is located, as of the NO
(b)
(i) From the compliance account; and
(ii) Only if no more NO
(2) The Administrator will deduct NO
(i) Until the number of NO
(ii) Until no more NO
(c)(1)
(2)
(i) Those NO
(ii) Those NO
(iii) Those NO
(iv) Those NO
(d)
(2) If the compliance account or overdraft account does not contain sufficient NO
(3) Any allowance deduction required under paragraph (d) of this section shall not affect the liability of the owners and operators of the NO
(i) For purposes of determining the number of days of violation, if a NO
(ii) Each ton of excess emissions is a separate violation.
(e)
(1) The NO
(2) Notwithstanding paragraph (b)(2)(i) of this section, the Administrator will deduct NO
(f)
(1) The Administrator will determine the total number of banked NO
(2) If the total number of banked NO
(3) If the total number of banked NO
(i) The Administrator will determine the following ratio: 0.10 multiplied by the sum of the trading program budgets under § 97.40 for all States for the control period and divided by the total number of banked NO
(ii) The Administrator will multiply the number of banked NO
(g)
NO
(a) Any NO
(b) The Administrator will designate, as a “banked” NO
The Administrator may, at his or her sole discretion and on his or her own motion, correct any error in any NO
(a) The NO
(b) If a general account shows no activity for a period of a year or more and does not contain any NO
The NO
(a) The numbers identifying both the transferor and transferee accounts;
(b) A specification by serial number of each NO
(c) The printed name and signature of the NO
(a) Within 5 business days of receiving a NO
(1) The transfer is correctly submitted under § 97.60; and
(2) The transferor account includes each NO
(b) A NO
(c) Where a NO
(a)
(b)
(1) A decision not to record the transfer; and
(2) The reasons for such non-recordation.
(c) Nothing in this section shall preclude the submission of a NO
The owners and operators, and to the extent applicable, the NO
(a)
(1) Install all monitoring systems required under this subpart for monitoring NO
(2) Install all monitoring systems for monitoring heat input rate.
(3) Successfully complete all certification tests required under § 97.71 and meet all other requirements of this subpart and part 75 of this chapter applicable to the monitoring systems under paragraphs (a)(1) and (2) of this section.
(4) Record, report, and quality-assure the data from the monitoring systems under paragraphs (a)(1) and (2) of this section.
(b)
(1) For the owner or operator of a NO
(2) For the owner or operator of a NO
(3) For the owner or operator of a NO
(i) May 1, 2002; or
(ii) 90 days after the date on which the unit commences commercial operation.
(4) For the owner or operator of a NO
(5) For the owner or operator of a NO
(i) May 1, 2002; or
(ii) 180 days after the date on which the unit commences operation.
(6) For the owner or operator of a NO
(7) For the owner or operator of a NO
(8) For the owner or operator of a NO
(9) For the owner or operator of a unit for which an application for a NO
(c)
(d)
(2) No owner or operator of a NO
(3) No owner or operator of a NO
(4) No owner or operator of a NO
(i) During the period that the unit is covered by an exemption under § 97.4(b) or § 97.5 that is in effect;
(ii) The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this subpart and part 75 of this chapter, by the permitting authority for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or
(iii) The NO
(a) The owner or operator of a NO
(1) If, prior to January 1, 1998, the Administrator approved a petition under § 75.17(a) or (b) of this chapter for apportioning the NO
(2) For any additional CEMS required under the common stack provisions in § 75.72 of this chapter or for any NO
(b) The owner or operator of a NO
(1)
(2)
(3)
(ii)
(iii) Except for units using the low mass emission excepted methodology under § 75.19 of this chapter, the provisional certification date for a monitor shall be determined in accordance with § 75.20(a)(3) of this chapter. A provisionally certified monitor may be used under the NO
(iv)
(A)
(B)
(C)
(D)
(v)
(A) The owner or operator shall substitute the following values, for each hour of unit operation during the period of invalid data specified under § 75.20(a)(4)(iii), § 75.20(b)(5), § 75.20(h)(4), or § 75.21(e) and continuing until the date and hour specified under § 75.20(a)(5)(i) of this chapter:
(
(
(B) The NO
(C) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the Administrator's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.
(c)
(i) For a unit that does not have monitoring equipment initially certified or recertified for the NO
(ii) For a unit that has monitoring equipment initially certified or recertified for the NO
(iii) For a unit that has monitoring equipment initially certified or recertified for the NO
(d)
(a) Whenever any monitoring system fails to meet the quality assurance or data validation requirements of part 75 of this chapter, data shall be substituted using the applicable procedures in subpart D, appendix D, or appendix E of part 75 of this chapter.
(b)
(a) The NO
(b) For any unit that does not have an Acid Rain emissions limitation, the permitting authority may waive the requirement to notify the permitting authority in paragraph (a) of this section.
(a)
(2) If the NO
(b)
(2) The owner or operator of a unit that is not subject to an Acid Rain emissions limitation shall comply with requirements of § 75.62 of this chapter, except that the monitoring plan is only required to include the information required by subpart H of part 75 of this chapter.
(c)
(d)
(1) If a unit is subject to an Acid Rain emission limitation or if the owner or operator of the NO
(i) For a unit for which the owner or operator intends to apply or applies for the early reduction credits under § 97.43, the calendar quarter that includes the date of initial provisional certification under § 97.71(b)(3)(iii) or § 97.71(c). Data shall be recorded and reported from the date and hour corresponding to the date and hour of provisional certification; or
(ii) For a unit that commences operation on or before May 1, 2002 and that is not subject to paragraph (d)(1)(i) of this section, the earlier of the calender quarter that includes the date of initial provisional certification under § 97.71(b)(3)(iii) or § 97.71(c) or, if the certification tests are not completed by May 1, 2002, the calendar quarter covering May 1, 2002 through June 30, 2002. Data shall be recorded and reported from the earlier of the date and hour corresponding to the date and hour of provisional certification or the first hour on May 1, 2002; or
(iii) For a unit that commences operation after May 1, 2002, the calendar quarter in which the unit commences operation. Data shall be recorded and reported from the date and hour corresponding to when the unit commences operation.
(2) If a NO
(i) Meet all of the requirements of part 75 related to monitoring and reporting NO
(ii) Submit quarterly reports covering the period May 1 through September 30 of each year and including the data described in § 75.74(c)(6) of this chapter. The NO
(A) For a unit for which the owner or operator intends to apply or applies for early reduction credits under § 97.43, the calendar quarter that includes the date of initial provisional certification under § 97.71(b)(3)(iii) or § 97.71(c). Data shall be recorded and reported from the date and hour corresponding to the date and hour of provisional certification; or
(B) For a unit that commences operation on or before May 1, 2002 and that is not subject to paragraph (d)(2)(i) of this section, the calendar quarter covering May 1 through June 30, 2002. Data shall be recorded and reported from the earlier of the date and hour corresponding to the date and hour of initial provisional certification under § 97.71(b)(3)(iii) or § 97.71(c) or the first hour of May 1, 2002; or
(C) For a unit that commences operation after May 1, 2002 and during a control period, the calendar quarter in which the unit commences operation. Data shall be reported from the date and hour corresponding to when the unit commences operation; or
(D) For a unit that commences operation after May 1, 2002 and not during a control period, the calendar quarter covering the first control period after the unit commences operation. Data shall be recorded and reported from the earlier of the date and hour corresponding to the date and hour of initial provisional certification under § 97.71(b)(3)(iii) or § 97.71(c) or the first hour of May 1 of the first control period after the unit commences operation.
(3) The NO
(i) For units subject to an Acid Rain emissions limitation, quarterly reports shall include all of the data and information required in subpart H of part 75 of this chapter for each NO
(ii) For units not subject to an Acid Rain emissions limitation, quarterly reports are only required to include all of the data and information required in subpart H of part 75 of this chapter for each NO
(4)
(i) The monitoring data submitted were recorded in accordance with the applicable requirements of this subpart and part 75 of this chapter, including the quality assurance procedures and specifications;
(ii) For a unit with add-on NO
(iii) For a unit that is reporting on a control period basis under paragraph (d)(2)(ii) of this section, the NO
(a) The NO
(b) Application of an alternative to any requirement of this subpart is in accordance with this subpart only to the extent that the petition is approved by the Administrator under § 75.66 of this chapter.
The owner or operator of a NO
A unit that is in a State (as defined in § 97.2), is not a NO
Except otherwise as provided in this part, a NO
A unit for which an application for a NO
(a)
(1) A complete NO
(2) A monitoring plan submitted in accordance with subpart H of this part; and
(3) A complete account certificate of representation under § 97.13, if no NO
(b)
The permitting authority will issue or deny an initial NO
(a)
(b) If the Administrator determines that the unit's monitoring plan is sufficient under paragraph (a) of this section and after completion of monitoring system certification under subpart H of this part, the NO
(c) Based on the information monitored and reported under paragraph (b) of this section, the Administrator will calculate the unit's baseline heat input, which will equal the unit's total heat input (in mmBtu) for the control period, and the unit's baseline NO
(d)
(e) Not withstanding paragraphs (a) through (d) of this section, if at any time before issuance of a draft NO
(f)
(g) The unit shall be a NO
(a) Each NO
(b) Each NO
(a)
(b)
(1) For the control period immediately before the withdrawal is to be effective, the NO
(2) If the NO
(3) After the requirements for withdrawal under paragraphs (b)(1) and (2) of this section are met, the Administrator will deduct from the NO
(c) A NO
(d)
(2) If the requirements for withdrawal under paragraphs (a) and (b) of this section are not met, the Administrator will issue a notification to the permitting authority and the NO
(e)
(f)
(g)
(a)
(b)
(ii)(A) The Administrator will deduct from the compliance account for the NO
(
(
(B) The NO
(iii)(A) For every control period during which the NO
(B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, if the effective date of the NO
(2)(i) When the NO
(ii) After the deduction under paragraph (b)(2)(i) of this section is completed, the Administrator will close the NO
(a)
(2) By no later than April 1, after the first control period for which the NO
(3) The Administrator will make available to the public each determination of NO
(b) For each control period for which the NO
(1) The heat input (in mmBtu) used for calculating NO
(i) The unit's baseline heat input determined pursuant to § 97.84(c); or
(ii) The unit's heat input, as determined in accordance with subpart H of this part, for the control period in the year prior to the year of the control period for which the NO
(2) The Administrator will allocate NO
Department of Education.
Correction Notice.
On November 10, 1999 a notice inviting applications for a new award for a RRTC on rehabilitation of Minorities with Disabilities for Fiscal Year (FY) 2000 was published in the
February 18, 2000.
Grants and Contracts Service Team, 400 Maryland Avenue, SW, Room 3317, Switzer Building, Washington, DC 20202-2641. Telephone: (202) 260-9182. Individuals who use a telecommunications device for the deaf (TDD) may call the TDD number: (202) 205-8953. Internet: Delores_Watkins@ed.gov
Individuals with disabilities may obtain a copy of this notice in an alternate format (
You may view this document, as well as all other Department of Education documents published in the
The official version of this document is the document published in the
29 U.S.C. 760-762.
Federal Transit Administration (FTA), DOT.
Notice of Availability of Funds; Solicitation of Grant Applications.
The U.S. Department of Transportation (DOT) Federal Transit Administration (FTA) announces the availability of funds in fiscal year (FY) 2000 for the Over-the-road Bus (OTRB) Accessibility Program, authorized by section 3038 of the Transportation Equity Act for the 21st Century (TEA-21). The OTRB Accessibility Program makes funds available to private operators of over-the-road buses to finance the incremental capital and training costs of complying with DOT's over-the-road bus accessibility final rule, published in the
A total of $24.3 million is available for the program over the life of TEA-21. The guaranteed level of funding available for intercity fixed-route service was $2 million in FY 1999, and is $2 million in FY 2000, $3 million in FY 2001, and $5.3 million in FY 2002 and FY 2003, for a total of $17.5 million. The guaranteed level of funding for other over-the-road bus services, including charter and tour bus, is $1.7 million per year from FY 2000 to 2003, for a total of $6.8 million.
The FY 2000 Appropriation Act changed the Federal match ratio for intercity fixed route providers from up to 50 percent of the project cost to up to 90 percent of the project cost. All other over-the-road bus accessibility program projects will be funded at up to 50 percent of the project cost.
For FY 2000, $2 million was appropriated for intercity fixed-route service providers and $1.7 million was appropriated for other over-the-road service providers.
This announcement describes application procedures for the OTRB Accessibility Program and the procedures FTA will use to determine which projects it will fund. It includes all of the information needed to apply for an OTRB Accessibility Program grant.
This announcement is available on the Internet on the FTA website at: [http://www.fta.dot.gov/library/legal/fr00toc.htm]. FTA will announce final selections on the website and in the
Complete applications for OTRB Accessibility Program grants must be submitted to the appropriate FTA regional office (see Appendix A) by the close of business April 28, 2000. The appropriate FTA regional office is that office which serves the state in which an applicant's headquarters office is located. FTA intends to announce grant selections in July 2000, and it is anticipated that grants will be made by September 30, 2000, the end of the Federal fiscal year. FTA will accept comments on this notice until (30 days after date published). Based on input, FTA may provide amending or clarifying program information.
Comments and questions related to this notice can be mailed, faxed, or electronically submitted to the following: Sue Masselink, Federal Transit Administration, Room 9315, 400 7th Street, SW, Washington, DC 20590 (FAX (202) 366-7951, e-mail address: sue.masselink@fta.dot.gov).
Contact the appropriate FTA Regional Administrator (Appendix A) for application-specific information and issues. For general program information, contact Sue Masselink, Office of Program Management, (202) 366-2053, e-mail: sue.masselink@fta.dot.gov. A TDD is available at 1-800-877-8339 (TDD/FIRS).
The program is authorized under Section 3038 of the Transportation Equity Act for the 21st Century (TEA-21). Funds have been appropriated for this program under the Department of Transportation and Related Agencies Appropriations Act, 2000.
Over-the-road buses are used in intercity fixed-route service as well as other services, such as charter and tour bus services. These services are an important element of the U.S. transportation system. TEA-21 authorizes FTA's new Over-the-road Bus Accessibility Program to assist over-the-road bus operators in complying with the Department's Over-the-road Bus Accessibility rule, “Transportation for Individuals with Disabilities” (49 CFR Part 37) published in a
Small carriers who provide mostly charter or tour service and also provide a small amount of fixed-route service can meet all requirements through 48-hour advance-reservation service. Small carriers have an extra year to begin complying with the requirements which apply to them starting in October 2001, compared to October 2000 for large carriers.
Specifications describing the design features that an over-the-road bus must have to be readily accessible to and usable by persons who use wheelchairs or other mobility aids required by the “Americans with Disabilities Act Accessibility Guidelines for Transportation Vehicles: Over-the-Road Buses” rule (36 CFR Part 1192) were published in another
Improving mobility and shaping America's future by ensuring that the transportation system is accessible, integrated, efficient and offers flexibility
Grants will be made directly to operators of over-the-road buses. Intercity, fixed-route over-the-road bus service providers may apply for the $2 million appropriated for intercity fixed-route providers in FY 2000. Other over-the-road bus service providers, including operators of local fixed-route service, commuter service, and charter or tour service may apply for the $1.7 million appropriated in FY 2000 for these providers. OTRB operators who provide intercity, fixed-route service and another type of service, such as commuter, charter or tour, may apply for both categories of funds with a single application. Private for-profit operators of over-the-road buses are eligible to be direct applicants for this program. This is a departure from the other FTA programs in which the direct applicant must be a state or local public body.
An “over-the-road bus” is a bus characterized by an elevated passenger deck located over a baggage compartment.
Intercity, fixed-route over-the-road bus service is regularly scheduled bus service for the general public, using an over-the-road bus that: Operates with limited stops over fixed routes connecting two or more urban areas not in close proximity or connecting one or more rural communities with an urban area not in close proximity; has the capacity for transporting baggage carried by passengers; and makes meaningful connections with scheduled intercity bus service to more distant points.
Other over-the-road bus service means any other transportation using over-the-road buses, including local fixed-route service, commuter service, and charter or tour service (including tour or excursion service that includes features in addition to bus transportation such as meals, lodging, admission to points of interest or special attractions). While some commuter service may also serve the needs of some intercity fixed-route passengers, the statute includes commuter service in the definition of “other” service. Commuter service providers should apply for these funds, even though the services designed to meet the needs of commuters may also provide service to intercity fixed-route passengers on an incidental basis. If a service provider can document that more than 50 percent of its passengers are using the service as intercity fixed-route service, the provider may apply for the funds designated for intercity fixed-route operators.
Projects to finance the incremental capital and training costs of complying with DOT's over-the-road bus accessibility rule (49 CFR Part 37) are eligible for funding. Incremental capital costs eligible for funding include adding lifts, tie downs, moveable seats, doors and all labor costs associated with work on the vehicle needed to make new vehicles accessible. Retrofitting vehicles with such accessibility components is also an eligible expense. Please see Buy America section for further determination of eligibility.
Funds may be awarded by FTA for costs already incurred by the applicants. Any new wheelchair accessible vehicles delivered since June 8, 1998, the date that the Transportation Equity Act for the 21sth Century was effective, are eligible for funding under the program. Vehicles of any age that have been retrofitted with lifts and other accessibility components since June 8, 1998 are also eligible for funding.
Eligible training costs are those required by the final accessibility rule as described in 49 CFR 37.209. These activities include training in proper operation and maintenance of accessibility features and equipment, boarding assistance, securement of mobility aids, sensitive and appropriate interaction with passengers with disabilities, and handling and storage of mobility devices. The costs associated with developing training materials or providing training for local providers of over-the-road bus services for these purposes are eligible expenses.
FTA has sponsored the development of accessibility training materials for public transit operators. FTA-funded Project Action is a national technical assistance program to promote cooperation between the disability community and transportation industry. Project Action provides training, resources and technical assistance to thousands of disability organizations, consumers with disabilities, and transportation operators. It maintains a resource center with the most up-to-date information on transportation accessibility. Project Action may be contacted at:
Project Action, 700 Thirteenth Street, N.W., Suite 200, Washington, DC 20590, Phone: 1-800-659-6428, Internet address: http://www.projectaction.org/.
FTA will award grants based on:
a. The identified need for over-the-road bus accessibility for persons with disabilities in the areas served by the applicant;
b. The extent to which the applicant demonstrates innovative strategies and financial commitment to providing access to over-the-road buses to persons with disabilities;
c. The extent to which the over-the-road bus operator acquires equipment required by DOT's over-the-road bus accessibility rule prior to the required timeframe in the rule;
d. The extent to which financing the costs of complying with DOT's rule presents a financial hardship for the applicant; and
e. The impact of accessibility requirements on the continuation of over-the-road bus service, with particular consideration of the impact of the requirements on service to rural areas and for low-income individuals.
These are the statutory criteria upon which funding decisions will be made. In addition to these criteria, FTA may also consider other factors, such as the size of the applicant's fleet and the approximate proportion of use the vehicle will get for the services eligible under the category of funds for which the applicant is applying.
The grant application must include documentation necessary to meet the requirements of FTA's Nonurbanized Area Formula program (Section 5311 under Title 49, United States Code). Technical assistance regarding these requirements is available in each FTA regional office. Federal requirements apply only to the incremental cost of adding the wheelchair accessibility features, either to new vehicles or when retrofitting existing vehicles.
Training costs are not subject to all requirements. For example, labor protections, Buy America, and school transportation are not applicable to training assistance.
1.
The “General Requirements” found at 49 CFR 661.5 apply to that portion of the accessibility system being funded. That section requires that all of the manufacturing processes for the product take place in the United States and that all components of the product be made in the United States. A component is considered domestic if it is manufactured in the U.S.A., regardless of the origin of its subcomponents. The lift, the moveable seats, and the securement devices will all be considered components for purposes of this program; accordingly, a “General Requirements” analysis should be applied to each of these items individually. Should a recipient choose to request funding for only a specific component, such as the lift or the securement device, then the Buy America requirements would apply only to that item funded by FTA.
Three exceptions to the general requirements which can be found at 49 CFR 661.7: first, a waiver may be requested when the application of the regulation is not in the public interest; second, the general requirements will not apply if materials and products being procured are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; and third, a price differential waiver will be available under this program only if the grantee conducts a competitive procurement (see Competitive Procurement Section, below). FTA approval must be received by the recipient of FTA funds prior to the execution of contract.
It should also be noted that FTA has issued a general public interest waiver for all purchases under the Federal “small purchase” threshold, which is currently set at $100,000. This waiver can be found in 49 CFR 661.7, Appendix A(e). In Section 3038(b) of TEA-21, Congress authorized FTA financing of the incremental capital costs of compliance with DOT's OTRB accessibility rule. Consistent with this provision, the small purchase waiver applies only to the incremental cost of the accessibility features FTA is funding. Where more than one bus is purchased, the grantee must consider the incremental cost increase for the entire procurement when determining if the small purchase waiver applies. For example, if $30,000 is the incremental cost for the accessibility features eligible under this program per bus (regardless of the Federal share contribution), then a procurement of three buses with a total such cost of $90,000, would qualify for the small purchase waiver. No special application to FTA would be required.
The grantee must obtain a certification from the bus manufacturer that all items included in the incremental cost for which the applicant is applying for funds meet Buy America requirements.
The Buy America regulations can be found at
2.
Applicants must identify any labor organizations that may represent their employees and all labor organizations that represent the employees of any other transit providers in the service area of the project.
For each local of a nationally affiliated union, the applicant must provide the name of the national organization and the number or other designation of the local union. (For example, Amalgamated Transit Union local 1258.) Since DOL makes its referral to the national union's headquarters, there is no need to provide a means of contacting the local organization.
However, for each independent labor organization (i.e., a union that is not affiliated with a national or international organization) the local information will be necessary (name of organization, address, contact person, phone, fax numbers).
Where a labor organization represents transit employees in the service area of the project, DOL must refer the proposed protective arrangements to each union and to each recipient. For this reason, please provide DOL with a contact person, address, telephone number and fax number for your company, and associated union information.
DOL issued a
Questions concerning employee protective arrangements and related matters pertaining to transit employees should be addressed to the Division of Statutory Programs, Department of Labor, 200 Constitution Avenue, N.W., Room N-5411, Washington, D.C. 20210; telephone (202) 693-0126, fax (202) 219-5338.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
FTA is conducting a national solicitation for applications under the OTRB Accessibility program. Grant awards will be made on a competitive basis. Although most FTA grant applications are now submitted electronically, paper applications for the OTRB Accessibility program will be accepted. An original and two copies of the application must be submitted to the appropriate FTA Regional Office. The OTRB operators should submit the application to the office in the region in which its headquarters office is located. The application should provide information on all items for which you are requesting funding in FY 1999. The application must include the following elements:
1.
This addresses basic identifying information, including:
a. Grant applicant
b. Contact name, address, fax and phone number
c. Amount of grant request
d. Type of services for which funds are sought, either intercity fixed route services, other services, or both
e. If funds are being sought for intercity fixed-route service, please describe how the service meets the definition of intercity fixed route service, including how the service makes meaningful connections with scheduled intercity bus service to more distant points.
2.
Every application must:
a. Describe the applicant's technical, legal, and financial capacity to implement the proposed projects.
b. Document matching funds, including amount and source.
c. Include OMB Standard Form 424,“Federal Assistance,” which is a multi-purpose form which must be completed in its entirety. The forms are available from the FTA regional offices.
3.
Provide a summary of project activities for which you are requesting funds. The summary should include:
a. Description of the components included in request for funds,
b. Each project's time line, including significant milestones such as date of contract for purchase of vehicle(s), and actual or expected delivery date of vehicle(s)
c. Project budget (See Appendix B)
4.
Provide the information identified below to support your application. Grants will be awarded competitively based upon the following criteria:
a. The identified need for over-the-road bus accessibility for persons with disabilities in the areas served by the applicant;
b. The extent to which the applicant demonstrates innovative strategies and financial commitment to providing access to over-the-road buses to persons with disabilities;
c. The extent to which the over-the-road bus operator acquires equipment required by DOT's over-the-road bus accessibility rule prior to the required timeframe in the rule;
d. The extent to which financing the costs of complying with DOT's rule presents a financial hardship for the applicant; and
e. The impact of accessibility requirements on the continuation of over-the-road bus service, with particular consideration of the impact of the requirements on service to rural areas and for low-income individuals.
5.
Provide information on the number of over-the-road buses in your fleet, how many of those vehicles are accessible, and whether the vehicles for which you are seeking funds will be used to replace vehicles in your current fleet or to expand your fleet.
6.
a. If you provide both intercity fixed-route service and another type of service, such as commuter, charter or tour service, please provide an estimate of the proportion of your service that is intercity fixed-route service.
b. Describe your service area.
7.
a. Identify any labor organizations that may represent your employees and all labor organizations that represent the employees of any transit providers in the service area of the project. For each local of a nationally affiliated union, the applicant must provide the name of the national organization and the number or other designation of the local union. (For example, Amalgamated Transit Union local 1258.) Since DOL makes its referral to the national union's headquarters, there is no need to provide a means of contacting the local organization.
b. For each independent labor organization (
c. Where a labor organization represents transit employees in the service area of the project, DOL must refer the proposed protective arrangements to each union and to each recipient. For this reason, please provide DOL with a contact person, address, telephone number and fax number for your company and associated union information.
Applications are to be submitted to the appropriate FTA Regional Office by the close of business on April 28, 2000. FTA will screen all applications to determine whether all required eligibility elements, as described in Section 2 of the application, are present. An FTA task force will evaluate each application according to the criteria described in this announcement.
FTA expects to notify all applicants, both those selected for funding and those not selected, in July 2000. Grants are expected to be made by September 30, 2000, the end of Federal fiscal year 2000. FTA is committed to obligating FY 2000 OTRB Accessibility program funds expeditiously. Therefore, FTA urges applicants to develop and submit with their applications complete documentation necessary to meet the applicable FTA Section 5311 requirements.
This list is a comprehensive compilation of the certifications and assurances required by Federal law for the OTRB Accessibility program. At the end of this list is a single Signature Page on which the applicant and its attorney certifies compliance with all certifications and assurances applicable to the OTRB Accessibility program.
All applicants are advised to read the entire list of Certifications and Assurances to be confident of their responsibilities and commitments. The applicant may signify compliance with all categories by placing a single “X” in the appropriate space at the top of the signature selection page.
The Transportation Equity Act for the 21st Century, Pub. L. 105-178, June 9, 1998, as amended by the TEA-21 Restoration Act 105-206, 112 Stat. 685, July 22, 1998, 49 U.S.C. chapter 53, Title 23, United States Code, U.S. DOT and FTA regulations at 49 CFR, and FTA Circulars.
Each Applicant for Federal assistance awarded by FTA must provide all certifications and assurances in this category I. Consequently, FTA may not award any Federal assistance until the Applicant provides assurance of compliance by selecting category “I” Signature Page at the end of this document.
The authorized representative of the Applicant and legal counsel who sign these certifications, assurances, and agreements affirm that both the Applicant and its authorized representative have adequate authority under state and local law and the by-laws or internal rules of the Applicant organization to:
(1) Execute and file the application for Federal assistance on behalf of the Applicant,
(2) Execute and file the required certifications, assurances, and agreements on behalf of the Applicant binding the Applicant, and
(3) Execute grant agreements and cooperative agreements with FTA on behalf of the Applicant.
The Applicant assures that it will comply with all applicable Federal statutes, regulations, executive orders, FTA circulars, and other Federal administrative requirements in carrying out any project supported by the FTA grant. The Applicant acknowledges that it is under a continuing obligation to comply with the terms and conditions of the grant agreement issued for its project with FTA. The Applicant understands that Federal laws, regulations, policies, and administrative practices might be modified from time to time and affect the implementation of the project. The Applicant agrees that the most recent Federal requirements will apply to the project, unless FTA issues a written determination otherwise.
As required by U.S. DOT regulations on Government-wide Debarment and Suspension (Nonprocurement) at 49 CFR 29.510:
(1) The Applicant (Primary Participant) certifies, to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency;
(b) Have not, within a three (3) year period preceding this certification, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) transaction or contract under a public transaction, violation of Federal or state antitrust statutes, or commission of embezzlement, theft, forgery, bribery, falsification or destruction of
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, state, or local) with commission of any of the offenses listed in subparagraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this certification had one or more public transactions (Federal, state, or local) terminated for cause or default.
(2) The Applicant also certifies that, if it later becomes aware of any information contradicting the statements of paragraph (1) above, it will promptly provide that information to FTA.
(3) If the Applicant (Primary Participant) is unable to certify to all statements in paragraphs (1) and (2) above, it shall indicate so in its signature page and provide a written explanation to FTA.
As required by U.S. DOT regulations, “Drug-Free Workplace Requirements (Grants),” 49 CFR part 29, Subpart F, as modified by 41 U.S.C. 702, the Applicant agrees that it will provide a drug-free workplace by:
(1) Publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in its workplace and specifying the actions that will be taken against its employees for violation of that prohibition;
(2) Establishing an ongoing drug-free awareness program to inform its employees about:
(a) The dangers of drug abuse in the workplace,
(b) Its policy of maintaining a drug-free workplace,
(c) Any available drug counseling, rehabilitation, and employee assistance programs, and
(d) The penalties that may be imposed upon its employees for drug abuse violations occurring in the workplace;
(3) Making it a requirement that each of its employees to be engaged in the performance of the grant be given a copy of the statement required by paragraph (1) above;
(4) Notifying each of its employees in the statement required by paragraph (1) that, as a condition of employment financed with Federal assistance provided by the grant, the employee will be required to:
(a) Abide by the terms of the statement, and
(b) Notify the employer (Applicant) in writing of any conviction for a violation of a criminal drug statute occurring in the workplace no later than five (5) calendar days after that conviction;
(5) Notifying FTA in writing, within ten (10) calendar days after receiving notice required by paragraph (4)(b) above from an employee or otherwise receiving actual notice of that conviction. The Applicant, as employer of any convicted employee, must provide notice, including position title, to every project officer or other designee on whose project activity the convicted employee was working. Notice shall include the identification number(s) of each affected grant;
(6) Taking one of the following actions within thirty (30) calendar days of receiving notice under paragraph (4)(b) of this agreement with respect to any employee who is so convicted:
(a) Taking appropriate personnel action against that employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended, or
(b) Requiring that employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, state, or local health, law enforcement, or other appropriate agency; and
(7) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (1), (2), (3), (4), (5), and (6) of this agreement. The Applicant agrees to maintain a list identifying its headquarters location and each workplace it maintains in which project activities supported by FTA are conducted, and make that list readily accessible to FTA.
The Applicant assures that each application for Federal assistance submitted to FTA has been or will be submitted, as required by each state, for intergovernmental review to the appropriate state and local agencies. Specifically, the Applicant assures that it has fulfilled or will fulfill the obligations imposed on FTA by U.S. DOT regulations, “Intergovernmental Review of Department of Transportation Programs and Activities,” 49 CFR part 17.
As required by 49 U.S.C. 5332 (which prohibits discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits discrimination in employment or business opportunity), Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, and U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act,” 49 CFR part 21 at 21.7, the Applicant assures that it will comply with all requirements of 49 CFR part 21; FTA Circular 4702.1, “Title VI Program Guidelines for Federal Transit Administration Recipients”, and other applicable directives, so that no person in the United States, on the basis of race, color, national origin, creed, sex, or age will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in any program or activity (particularly in the level and quality of transportation services and transportation-related benefits) for which the Applicant receives Federal assistance awarded by the U.S. DOT or FTA as follows:
(1) The Applicant assures that each project will be conducted, property acquisitions will be undertaken, and project facilities will be operated in accordance with all applicable requirements of 49 U.S.C. 5332 and 49 CFR part 21, and understands that this assurance extends to its entire facility and to facilities operated in connection with the project.
(2) The Applicant assures that it will take appropriate action to ensure that any transferee receiving property financed with Federal assistance derived from FTA will comply with the applicable requirements of 49 U.S.C. 5332 and 49 CFR part 21.
(3) The Applicant assures that it will promptly take the necessary actions to effectuate this assurance, including notifying the public that complaints of discrimination in the provision of transportation-related services or benefits may be filed with U.S. DOT or FTA. Upon request by U.S. DOT or FTA, the Applicant assures that it will submit the required information pertaining to its compliance with these requirements.
(4) The Applicant assures that it will make any changes in its 49 U.S.C. 5332 and Title VI implementing procedures as U.S. DOT or FTA may request.
(5) As required by 49 CFR 21.7(a)(2), the Applicant will include in each third party contract or subagreement provisions to invoke the requirements of 49 U.S.C. 5332 and 49 CFR part 21, and include provisions to invoke those requirements in deeds and instruments recording the transfer of real property, structures, improvements.
As required by U.S. DOT regulations, “Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” at 49 CFR part 27, implementing the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act of 1990, as amended, the Applicant assures that, as a condition to the approval or extension of any Federal assistance awarded by FTA to construct any facility, obtain any rolling stock or other equipment, undertake studies, conduct research, or to participate in or obtain any benefit from any program administered by FTA, no otherwise qualified person with a disability shall be, solely by reason of that disability, excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in any program or activity receiving or benefiting from Federal assistance administered by the FTA or any entity within U.S. DOT. The Applicant assures that project implementation and operations so assisted will comply with all applicable requirements of U.S. DOT regulations implementing the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 12101
The Applicant certifies that it:
(1) Has the legal authority to apply for Federal assistance and the institutional, managerial, and financial capability (including funds sufficient to pay the non-Federal share of project cost) to ensure proper planning, management, and completion of the project described in its application.
(2) Will give FTA, the Comptroller General of the United States and, if appropriate, the state, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives.
(3) Will establish safeguard to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain.
(4) Will initiate and complete the work within the applicable project time periods following receipt of FTA approval.
(5) Will comply with all statutes relating to nondiscrimination including, but not limited to:
(a) Title VI of the Civil Rights Act, 42 U.S.C. 2000d, which prohibits discrimination on the basis of race, color, or national origin;
(b) Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681, 1683, and 1685 through 1687, which prohibits discrimination on the basis of sex;
(c) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of handicaps;
(d) The Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 through 6107, which prohibit discrimination on the basis of age;
(e) The Drug Abuse Office and Treatment Act of 1972, Pub. L. 92-255, March 21, 1972, and amendments thereto, relating to nondiscrimination on the basis of drug abuse;
(f) The Comprehensive Alcohol Abuse and Alcoholism Prevention Act of 1970, Pub. L. 91-616, Dec. 31, 1970, and amendments thereto, relating to nondiscrimination on the basis of alcohol abuse or alcoholism;
(g) The Public Health Service Act of 1912, as amended, 42 U.S.C. 290dd-3 and 290ee-3, related to confidentiality of alcohol and drug abuse patient records;
(h) Title VIII of the Civil Rights Act, 42 U.S.C. 3601
(i) Any other nondiscrimination provisions in the specific statutes under which Federal assistance for the project may be provided including, but not limited to section 1101(b) of the Transportation Equity Act for the 21st Century, 23 U.S.C. 101 note, which provides for participation of disadvantaged business enterprises in FTA programs; and
(j) The requirements of any other nondiscrimination statute(s) that may apply to the project.
(6) Will comply, or has complied, with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (Uniform Relocation Act) 42 U.S.C. 4601 et seq., which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal of federally-assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases. As required by U.S. DOT regulations, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” at 49 CFR 24.4, and sections 210 and 305 of the Uniform Relocation Act, 42 U.S.C. 4630 and 4655, the Applicant assures that it has the requisite authority under applicable state and local law and will comply or has complied with the requirements of the Uniform Relocation Act, 42 U.S.C. 4601 et seq., and U.S. DOT regulations, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” 49 CFR part 24 including, but not limited to the following:
(a) The Applicant will adequately inform each affected person of the benefits, policies, and procedures provided for in 49 CFR part 24;
(b) The Applicant will provide fair and reasonable relocation payments and assistance required by 42 U.S.C. 4622, 4623, and 4624; 49 CFR part 24; and any applicable FTA procedures, to or for families, individuals, partnerships, corporations or associations displaced as a result of any project financed with FTA assistance;
(c) The Applicant will provide relocation assistance programs offering the services described in 42 U.S.C. 4625 to such displaced families, individuals, partnerships, corporations, or associations in the manner provided in 49 CFR part 24 and FTA procedures;
(d) Within a reasonable time before displacement, the Applicant will make available comparable replacement dwellings to displaced families and individuals as required by 42 U.S.C. 4625(c)(3);
(e) The Applicant will carry out the relocation process in such a manner as to provide displaced persons with uniform and consistent services, and will make available replacement housing in the same range of choices with respect to such housing to all displaced persons regardless of race, color, religion, or national origin; and
(f) In acquiring real property, the Applicant will be guided to the greatest extent practicable under state law, by the real property acquisition policies of 42 U.S.C. 4651 and 4652;
(g) The Applicant will pay or reimburse property owners for necessary expenses as specified in 42 U.S.C. 4653 and 4654, with the understanding that FTA will participate in the Applicant's eligible costs of providing payments for those expenses as required by 42 U.S.C. 4631;
(h) The Applicant will execute such amendments to third party contracts and subagreements financed with FTA assistance and execute, furnish, and be bound by such additional documents as FTA may determine necessary to effectuate or implement the assurances provided herein; and
(i) The Applicant agrees to make these assurances part of or incorporate them by reference into any third party contract or subagreement, or any amendments thereto, relating to any project financed by FTA involving relocation or land acquisition and provide in any affected document that these relocation and land acquisition provisions shall supersede any conflicting provisions.
(7) To the extent applicable, will comply with provisions of the Hatch Act, 5 U.S.C. 1501 through 1508, and 7324 through 7326, which limit the political activities of state and local agencies and their officers and employees whose principal employment activities are financed in whole or part with Federal funds including a Federal loan, grant, or cooperative agreement, but pursuant to 23 U.S.C. 142(g), does not apply to a nonsupervisory employee of a transit system (or of any other agency or entity performing related functions) receiving FTA assistance to whom the Hatch Act does not otherwise apply.
(8) To the extent applicable, will comply with the Davis-Bacon Act, as amended, 40 U.S.C. 276a through 276a(7), the Copeland Act, as amended, 18 U.S.C. 874 and 40 U.S.C. 276c, and the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. 327 through 333, regarding labor standards for federally-assisted subagreements.
(9) To the extent applicable, will comply with flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4012a(a), requiring recipients in a special flood hazard area to participate in the program and purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more.
(10) Will comply with environmental standards that may be prescribed to implement the following Federal laws and executive orders:
(a) Institution of environmental quality control measures under the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321
(b) Notification of violating facilities pursuant to Executive Order No. 11738, 42 U.S.C. 7606 note;
(c) Protection of wetlands pursuant to Executive Order No. 11990, 42 U.S.C. 4321 note;
(d) Evaluation of flood hazards in floodplains in accordance with Executive Order 11988, 42 U.S.C. 4321 note;
(e) Assurance of project consistency with the approved State management program developed pursuant to the requirements of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451
(f) Conformity of Federal actions to State (Clean Air) Implementation Plans under section 176(c) of the Clean Air Act of 1955, as amended, 42 U.S.C. 7401
(g) Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300h
(h) Protection of endangered species under the Endangered Species Act of 1973, as amended, Endangered Species Act of 1973, as amended, 16 U.S.C. 1531
(i) Environmental protections for Federal transit programs, including, but not limited to protections for a park, recreation area, or wildlife or waterfowl refuge of national, state, or local significance or any land from a historic site of national, state, or local significance used in a transit project as required by 49 U.S.C. 303.
(11) Will comply with the Wild and Scenic Rivers Act of 1968, as amended, 16 U.S.C.
(12) Will assist FTA in assuring compliance with section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470f, Executive Order No. 11593 (identification and protection of historic properties), 16 U.S.C. 470 note, and the Archaeological and Historic Preservation Act of 1974, as amended, 16 U.S.C. 469a-1
(13) Will comply with the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. 4801, which prohibits the use of lead-based paint in construction or rehabilitation of residence structures.
(14) Will not dispose of, modify the use of, or change the terms of the real property title, or other interest in the site and facilities on which a construction project supported with FTA assistance takes place without permission and instructions from the awarding agency.
(15) Will record the Federal interest in the title of real property in accordance with FTA directives and will include a covenant in the title of real property acquired in whole or in part with Federal assistance funds to assure nondiscrimination during the useful life of the project.
(16) Will comply with FTA requirements concerning the drafting, review, and approval of construction plans and specifications of any construction project supported with FTA assistance. As required by U.S. DOT regulations, “Seismic Safety,” 49 CFR 41.117(d), before accepting delivery of any building financed with FTA assistance, it will obtain a certificate of compliance with the seismic design and construction requirements of 49 CFR part 41.
(17) Will provide and maintain competent and adequate engineering supervision at the construction site of any project supported with FTA assistance to ensure that the complete work conforms with the approved plans and specifications and will furnish progress reports and such other information as may be required by FTA or the State.
(18) Will comply with the National Research Act, Pub. L. 93-348, July 12, 1974, as amended, regarding the protection of human subjects involved in research, development, and related activities supported by Federal assistance.
(19) Will comply with the Laboratory Animal Welfare Act of 1966, as amended, 7 U.S.C. 2131
(20) Will have performed the financial and compliance audits required by the Single Audit Act Amendments of 1996, 31 U.S.C. 7501
(21) Will comply with all applicable requirements of all other Federal laws, executive orders, regulations, and policies governing the project.
An Applicant that submits, or intends to submit this fiscal year, an application for Federal assistance exceeding $100,000 must provide the following certification. Consequently, FTA may not provide Federal assistance for an application exceeding $100,000 until the Applicant provides this certification by selecting category “II” on the Signature Page at the end of this document.
A. As required by U.S. DOT regulations, “New Restrictions on Lobbying,” at 49 CFR 20.110, the Applicant's authorized representative certifies to the best of his or her knowledge and belief that for each application for a Federal assistance exceeding $100,000:
(1) No Federal appropriated funds have been or will be paid, by or on behalf of the Applicant, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress pertaining to the award of any Federal assistance, or the extension, continuation, renewal, amendment, or modification of any Federal assistance agreement; and
(2) If any funds other than Federal appropriated funds have been or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any application to FTA for Federal assistance, the Applicant assures that it will complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” including the information required by the form's instructions, which may be amended to omit such information as permitted by 31 U.S.C. 1352.
B. The Applicant understands that this certification is a material representation of fact upon which reliance is placed and that submission of this certification is a prerequisite for providing Federal assistance for a transaction covered by 31 U.S.C. 1352. The Applicant also understands that any person who fails to file a required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
An Applicant seeking FTA assistance to acquire or operate transportation facilities and equipment acquired with Federal assistance authorized by 49 U.S.C. chapter 53 or Title 23, U.S.C. must agree as follows. Consequently, FTA may not provide assistance for transportation facilities until the Applicant enters into this Agreement by selecting category “III” on the TEAM system certifications and assurances tab page or on the Signature Page at the end of this document.
A. As required by 49 U.S.C. 5323(f) and FTA regulations, “School Bus Operations,” at 49 CFR 605.14, the Applicant agrees that it and all its recipients will:
(1) Engage in school transportation operations in competition with private school transportation operators only to the extent permitted by 49 U.S.C. 5323(f), and implementing regulations, and
(2) Comply with the requirements of 49 CFR part 605 before providing any school transportation using equipment or facilities acquired with Federal assistance awarded by FTA and authorized by 49 U.S.C. chapter 53 or Title 23 U.S.C. for transportation projects.
B. The Applicant understands that the requirements of 49 CFR part 605 will apply to any school transportation it provides, the definitions of 49 CFR part 605 apply to this school transportation agreement, and a violation of this agreement may require corrective measures and the imposition of penalties, including debarment from the receipt of further Federal assistance for transportation.
Each Applicant for FTA financial assistance and each FTA grantee with an active capital project must provide an attorney's affirmation of the Applicant's legal capacity.
The Department of Education is not bound by any estimates in this notice.
The Education Department General Administrative Regulations (EDGAR) in 34 CFR 74, 75, 77, 79, 80, 81, 82, 85, and 86.
The statutory authorization for this program, and the application requirements that apply to this competition, are set forth in sections 7142 and 7146-7150 of the Elementary and Secondary Education Act of 1965, as amended by the Improving America's Schools Act of 1994 (20 U.S.C. 7472 and 7476-7480), Pub. L. 103-382, enacted October 20, 1994.
Activities conducted under this program must assist educational personnel in meeting State and local certification requirements for bilingual education and, wherever possible, must lead to the awarding of college or university credit.
The Secretary, under 34 CFR 75.105(c)(2)(i) and 34 CFR 299.3(b), gives preference to applications that meet the following competitive priority. The Secretary awards up to 3 points for an application that meets this competitive priority. These points are in addition to any points the application earns under the selection criteria for the program:
Projects that will contribute to systemic educational reform in an Empowerment Zone, including a Supplemental Empowerment Zone, or an Enterprise Community designated by the United States Department of Housing and Urban Development or the United States Department of Agriculture, and are made an integral part of the Zone's or Community's comprehensive community revitalization strategies.
For a list of areas that have been designated as Empowerment Zones and Enterprise Communities go to: http://www.ezec.gov/ezec/mainmap.html and http://www.hud.gov/pressrel/ezec/urban.html.
The Secretary is particularly interested in applications that meet the following invitational priority. However, an application that meets this invitational priority receives no competitive or absolute preference over other applications (34 CFR 75.105(c)(1)).
Projects that incorporate training in family involvement into formal induction programs for beginning secondary teachers or ongoing professional development programs for currently practicing secondary teachers.
The Secretary uses the following selection criteria in 34 CFR 75.210 to evaluate applications for new grants under this competition.
The maximum score for all of these criteria is 100 points.
The maximum score for each criterion is indicated in parentheses.
(a)
(2) In determining the significance of the proposed project the Secretary considers the likelihood that the proposed project will result in system change or improvement.
(b)
(2) In determining the need for the proposed project, the Secretary considers the following factors:
(i) The magnitude or severity of the problem to be addressed by the proposed project.
(ii) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and the magnitude of those gaps or weaknesses.
(c)
(2) In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(ii) The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs.
(iii) The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of Federal financial assistance.
(iv) The extent to which the design of the proposed project reflects up-to-date knowledge from research and effective practice.
(v) The extent to which the proposed project will be coordinated with similar or related efforts, and with other appropriate community, State, and Federal resources.
(vi) The extent to which the proposed project represents an exceptional approach for meeting the statutory purposes and requirements.
(d)
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(Authority: 34 CFR 75.210(d)(1) and(2).
(e)
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(f)
(2) In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(ii) The adequacy of the procedures for ensuring feedback and continuous improvement in the operation of the proposed project.
(iii) How the applicant will ensure that a diversity of perspectives are brought to bear in the operation of the proposed project, including those of parents, teachers, the business community, a variety of disciplinary and professional fields, recipients or beneficiaries of services, or others, as appropriate.
(g)
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation provide for examining the effectiveness of project implementation strategies.
(ii) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible.
(iii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
This program is subject to the requirements of Executive Order 12372 (Intergovernmental Review of Federal Programs) and the regulations in 34 CFR Part 79.
The objective of the Executive order is to foster an intergovernmental partnership and to strengthen federalism by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance.
Applicants must contact the appropriate State Single Point of Contact to find out about, and to comply with, the State's process under Executive order 12372.
Applicants proposing to perform activities in more than one State should immediately contact the Single Point of Contact for each of those States and follow the procedure established in each State under the Executive Order. If you want to know the name and address of any State Single Point of Contact, see the list published in the
In States that have not established a process or chosen a program for review, State, area-wide, regional, and local entities may submit comments directly to the Department.
Any State process recommendation and other comments submitted by a State Single Point of Contact and any comments from State, areawide, regional, and local entities must be mailed or hand-delivered by the date indicated in this notice to the following address: The Secretary, E.O. 12372—CFDA
Proof of mailing will be determined on the same basis as applications (see 34 CFR 75.102). Recommendations or comments may be hand-delivered until 4:30 p.m. (Eastern Standard Time) on the date indicated in this notice.
Please note that the above address is not the same address as the one to which the applicant submits its completed application.
(a) If an applicant wants to apply for a grant, the applicant must
(1) Mail the original and two copies of the application on or before the deadline date to: U.S. Department of Education, Application Control Center, Attention: (CFDA
(2) Hand-deliver the original and two copies of the application by 4:30 p.m. (Eastern Standard Time) on or before the deadline date to: U.S. Department of Education, Application Control Center, Attention: (CFDA
(b) An applicant must show one of the following as proof of mailing:
(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.
(4) Any other proof of mailing acceptable to the Secretary.
(c) If an application is mailed through the U.S. Postal Service, the Secretary does not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
(1) The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, an applicant should check with its local post office.
(2) The Application Control Center will mail a Grant Application Receipt Acknowledgment to each applicant. If an applicant fails to receive the notification of application receipt within 15 days from the date of mailing the application, the applicant should call the U.S. Department of Education Application Control Center at (202) 708-9495.
(3) The applicant must indicate on the envelope and—if not provided by the Department—in Item 10 of the Application for Federal Assistance
The appendix to this notice is divided into three parts, plus a statement regarding estimated public reporting burden, a notice to applicants regarding compliance with Section 427 of the General Education Provisions Act (GEPA), questions and answers on this program (located at the end of the notice) and various assurances, certifications, and required documentation. These parts and additional materials are organized in the same manner that the submitted application should be organized. The parts and additional materials are as follows:
Part I: Application for Federal Assistance (Standard Form 424) and instructions.
Part II: Budget Information—Non-Construction Programs (ED Form No. 524) and instructions.
Part III: Application Narrative.
a. Estimated Public Reporting Burden.
b. Group Application Certification.
c. Project Documentation.
d. Program Assurances.
e. Assurances—Non-Construction Programs (Standard Form 424B) and Instructions.
f. Certifications Regarding: Lobbying; Debarment, Suspension, and Other Responsibility Matters; and Drug-Free Workplace Requirements (ED 80-0013) and Instructions.
g. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions (ED 80-0014) and Instructions. (
h. Disclosure of Lobbying Activities (Standard Form LLL) (if applicable) and Instructions. This document has been marked to reflect statutory changes. See the notice published in the
i. Notice to All Applicants (GEPA Requirement) and Instructions (OMB No. 1801-0004). An applicant may submit information on a photostatic copy of the application and budget forms, the assurances, and the certifications. However, the application form, the assurances, and the certifications must each have an original signature. All applicants must submit one original signed application, including ink signatures on all forms and assurances, and two copies of the application. Please mark each application as original or copy. No grant may be awarded unless a completed application has been received.
Individuals with disabilities may obtain this notice in an alternate format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact persons listed in the preceding paragraph. Please note, however, that the Department is not able to reproduce in an alternate format the standard forms included in the notice.
You may view this document, as well as all other Department of Education documents published in the
To use the PDF you must have the Adobe Acrobat Reader Program with Search, which is available free at either of the preceding sites. If you have questions about using the PDF, call the U.S. Government Printing Office 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
20 U.S.C. 7472.
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is OMB No. 1885-0545. (Expiration Date: 03/31/2002) The time required to complete this information collection is estimated to average 120 hours per response, including the time to review instructions, search existing data resources, gather the data needed, and complete and review the information collection. If you have any comments concerning the accuracy of the time estimate or suggestions for improving this form, please write to: U.S. Department of Education, Washington, D.C. 20202-4651. If you have any comments or concerns regarding the status of your individual submission of this form, write directly to: Office of Bilingual Education and Minority Languages Affairs, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, D.C. 20202-6510.
□ 1. Application for Federal Education Assistance (ED Form 424).
□ 2. Group Application Certification (if applicable).
□ 3. Budget Information (ED Form No. 524).
□ 4. Itemized budget for each project year.
□ 5. Participant Data.
□ 6. Project Documentation.
□ 7. Program Assurances.
□ 8. Assurances—Non-Construction Programs (SF 424B).
□ 9. Certifications Regarding Lobbying; Debarment Suspension and Other Responsibility Matters; and Drug-Free Workplace Requirements (ED 80-0013).
□ 10. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions (ED 80-0014) (if applicable).
□ 11. Disclosure of Lobbying Activities (SF-LLL).
□ 12. Notice to All Applicants (GEPA Requirement) (OMB No. 1801-0004).
□ 13. Table of Contents.
□ 14. One-page abstract (single-spaced).
□ 15. Application Narrative (not to exceed 30 pages double-spaced, see instructions below).
□ 16. One original and two copies of the application for transmittal to the
17. One copy of the application to the appropriate State Education Agency.
18. One copy of the application to the appropriate State Single Point of Contact (if applicable).
The narrative is the section of the application where you address the selection criteria used by reviewers in evaluating the application. You must limit the narrative to the equivalent of no more than 30 pages, using the following standards:
(1) A page is 8.5″ x 11″, on one side only with 1″ margins at the top, bottom, and both sides.
(2) You must 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.
If you use a proportional computer font, you may not use a font smaller than a 12-point font. If you use a non-proportional font or a typewriter, you may not use more than 12 characters per inch.
The page limit does not apply to: The Application for Federal Assistance Form (ED 424); the Budget Information Form (ED 524) and attached itemization of costs; the other application forms and attachments to those forms; the assurances and certifications; or the one-page abstract and table of contents. The page limit applies only to item 14 in the Checklist for Applicants provided above.
If, in order to meet the page limit, you use print size, spacing, or margins smaller than the standard specified in this notice, your application will not be considered for funding.
The narrative should address fully all aspects of the selection criteria in the order listed and should give detailed information regarding each criterion. Do not simply paraphrase the criteria. Provide position descriptions for key personnel. Prepare a one-page single-spaced abstract which summarizes the purpose, design and expected outcomes of the proposed project.
Budget line items must support the goals and objectives of the proposed project and be directly applicable to the program design and all other project components. Prepare an itemized budget for each year of requested funding. Indirect costs for institutions of higher education which are the fiscal agents for Training for All Teachers Programs are limited to the lower of either 8% of a modified total direct cost base or the institution of higher education's actual indirect cost agreement. A modified direct cost base is defined as total direct costs less stipends, tuition and related fees and capital expenditures of $5,000 or more.
(Authority: 34 CFR 75.562)
Use the above checklist to verify that all items are addressed. Prepare one original with an original signature, and include two additional copies. Do not use elaborate bindings or covers. The application package must be mailed to the Application Control Center (ACC) and postmarked by the deadline date.
Section 7146(a)(4) of the Elementary and Secondary Education Act of 1965, as amended, requires all applicants except schools funded by the Bureau of Indian Affairs to submit a copy of their application to their State educational agency (SEA) for review and comment (20 U.S.C. 7476(a)(4)). Section 75.156 of EDGAR requires these applicants to submit their application to the SEA on or before the deadline date for submitting their application to the Department of Education. This section of EDGAR also requires applicants to attach to their application a copy of their letter that requests the SEA to comment on the application (34 CFR 75.156). A copy of this letter should be attached to the Project Documentation Form contained in this application package. Applicants are reminded that the requirement for submission to the SEA and the requirements for Executive Order 12372 referred to in the above notice inviting applications are two separate requirements.
Applicants that do not submit a copy of their application to their SEA will not be considered for funding.
In addition to developing and revising courses and curricula for professional development programs for all teachers, applicants may implement training activities for currently practicing teachers and other educational personnel, including beginning teachers, who are not bilingual education or English as a second language specialists, but who provide services to LEP students. The program addresses the need for teachers and other educational personnel to acquire the knowledge and skills necessary to provide appropriate and effective services to limited English proficient students and their families.
Applicants should consider the characteristics and conditions that foster high-quality professional development, including sustained intensive training activities that are focused on a manageable number of participants. In determining the number of participants to be served, applicants should consider the capability of the program to provide high-quality professional development for all participants and to effectively evaluate improved teaching and learning as a result of the program. Applicants should not propose programs that are so large in scope that they dilute the quality of training.
The Title VII statute requires grantees to assist educational personnel in meeting state and local certification requirements. Courses and curricula developed, revised or offered must be part of a program, which would lead to State and local certification. However, it is not a requirement that participants trained under the program complete certification requirements during the course of the grant. Emphasis should be placed on the acquisition of the knowledge and skills necessary to meet the needs of limited English proficient students.
In responding to the selection criteria applicants may wish to consider the following questions as a guide for preparing the application narrative:
• What are the specific responsibilities of schools, districts, institutions of higher education and other partnership organizations in planning, implementing and evaluating the proposed program?
• How will the training curricula incorporate high standards for teaching and learning?
• How is the proposed program linked to a comprehensive school-wide plan to improve professional development programs for all teachers related to the needs of limited English proficient students?
• How will the products of the proposed program be integrated into professional development program activities for all teachers?
• How will the program assist in systemically reforming local policies and practices related to the training of teachers to improve instructional services for LEP students.
• What performance indicators will the proposed program use to support the effectiveness of the program? What are the expected outcomes for participant learning, improved teaching practices, improved student achievement, reform of professional development in the school or university?
• What professional development activities are planned for school staff development specialists, or for higher education faculty to ensure that they are effectively prepared to provide training to prepare all teachers related to the needs of LEP students.
In addition, applicants may wish to consider the Department of Education Professional Development Principles in planning Training for All Teachers Program. The following are the Professional Development Principles:
• Focuses on teachers as central to student learning, yet includes all other members of the school community.
• Focuses on individual, collegial and organizational improvement.
• Respects and nurtures the intellectual and leadership capacity of teachers, principals, and others in the school community.
• Reflects best available research and practice in teaching, learning, and leadership.
• Enables teachers to develop further expertise in subject content, teaching strategies, uses of technologies, and other essential elements in teaching to high standards.
• Promotes continuous inquiry and improvement embedded in the daily life of schools.
• Is planned collaboratively by those who will participate in and facilitate that development.
• Requires substantial time and other resources.
• Is driven by a coherent long-term plan.
• Is evaluated ultimately on the basis of its impact on teacher effectiveness and student learning; and this assessment guides subsequent professional development efforts.
This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
1. Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence the outcome of a covered Federal action.
2. Identify the status of the covered Federal action.
3. Identify the appropriate classification of this report. If this is a followup report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action.
4. Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient. Identify the tier of the subawardee,
5. If the organization filing the report in item 4 checks “Subawardee,” then enter the full name, address, city, State and zip code of the prime Federal recipient. Include Congressional District, if known.
6. Enter the name of the federal agency making the award or loan commitment. Include at least one organizational level below agency name, if known. For example, Department of Transportation, United States Coast Guard.
7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments.
8. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (
9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10. (a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of 1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action.
(b) Enter the full names of the individual(s) performing services, and include full address if different from 10(a). Enter Last Name, First Name, and Middle Initial (MI).
11. The certifying official shall sign and date the form, print his/her name, title, and telephone number.
According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid OMB control Number. The valid OMB control number for this information collection is OMB No. 0348-0046. Public reporting burden for this collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503.
The purpose of this enclosure is to inform you about a new provision in the Department of Education's General Education Provisions Act (GEPA) that applies to applicants for new grant awards under Department programs. This provision is Section 427 of GEPA, enacted as part of the Improving America's Schools Act of 1994 (Pub. L. 103-382).
Section 427 of GEPA affects applicants for new grant awards under this program.
All applicants for new awards must include information in their applications to address this new provision in order to receive funding under this program. (If this program is a State-formula grant program, a State needs to provide this description only for projects or activities that it carries out with funds reserved for State-level uses. In addition, local school districts or other eligible applicants that apply to the State for funding need to provide this description in their applications to the State for funding. The State would be responsible for ensuring that the school district or other local entity has submitted a sufficient section 427 statement as described below.)
Section 427 requires each applicant for funds (other than an individual person) to include in its application a description of the steps that applicant proposes to take to ensure equitable access to, and participation in, its Federally-assisted program for students, teachers, and other program beneficiaries with special needs. This provision allows applicants discretion in developing the required description. The statute highlights six types of barriers that can impede equitable access or participation: Gender, race, national origin, color, disability, or age. Based on local circumstances, you should determine whether these or other barriers may prevent your students, teachers, etc. from such access or participation in, the Federally-funded project or activity. The description in your application of steps to be taken to overcome these barriers need not be lengthy; you may provide a clear and succinct description of how you plan to address those barriers that are applicable to your circumstances. In addition, the information may be provided in a single narrative, or, if appropriate, may be discussed in connection with related topics in the application.
Section 427 is not intended to duplicate the requirements of civil rights statutes, but rather to ensure that, in designing their projects, applicants for Federal funds address equity concerns that may affect the ability of certain potential beneficiaries to fully participate in the project and to achieve to high standards. Consistent with program requirements and its approved application, an applicant may use the
The following examples may help illustrate how an applicant may comply with Section 427.
• (1) An applicant that proposes to carry out an adult literacy project serving, among others, adults with limited English proficiency, might describe in its application how it intends to distribute a brochure about the proposed project to such potential participants in their native language.
• (2) An applicant that proposes to develop instructional materials for classroom use might describe how it will make the materials available on audio tape or in braille for students who are blind.
• (3) An applicant that proposes to carry out a model science program for secondary students and is concerned that girls, may be less likely than boys to enroll in the course, might indicate how it intends to conduct “outreach” efforts to girls, to encourage their enrollment.
We recognize that many applicants may already be implementing effective steps to ensure equity of access and participation in their grant programs, and we appreciate your cooperation in responding to the requirements of this provision.
The time required to complete this information collection is estimated to vary from 1 to 3 hours per response, with an average of 1.5 hours, including the time to review instructions, search existing data resources, gather and maintain the data needed, and complete and review the information collection. If you have any comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Education, Washington, DC 20202-4651.
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to clarify our regulations for determining phase-out dates for single hull tank vessels under the Oil Pollution Act of 1990 (OPA 90). This proposed rule would codify our policy published on April 21, 1999, that states that conversion of a single hull tank vessel to add only double sides or only a double bottom after August 18, 1990, will not change the vessel's scheduled phase-out date under OPA 90.
Comments and related material must reach the Docket Management Facility on or before April 17, 2000.
To make sure your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility (USCG-1999-6164), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW, Washington, DC 20590-0001.
(2) By hand delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at http://dms.dot.gov.
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov.
For questions on this proposed rule, please contact Mr. Bob Gauvin, Project Manager, Office of Operating and Environmental Standards, Commandant (G-MSO-2), U.S. Coast Guard, telephone 202-267-1053. For questions on viewing or submitting material to the docket, call Dorothy Walker, Chief, Dockets, Department of Transportation, telephone 202-366-9329.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (USCG-1999-6164), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
We do not now plan to hold a public meeting, but you may submit a request for one to the Docket Management Facility at the address under
Section 4115 of the Oil Pollution Act of 1990 (OPA 90), (Pub. L. 101-380, August 18, 1990) amended Title 46, United States Code (U.S.C.), by adding a new section 3703a. This section contains the double hull requirements and phase-out schedule for single hull tank vessels operating in U.S. waters. It requires an owner to remove a single hull tank vessel from bulk oil service on a specific date, depending on the vessel's gross tonnage, build date, and hull configuration. The phase-out schedule allows more years of service for single hull tank vessels that have been configured to include double sides or a double bottom than for ones without these hull configurations.
The OPA 90 timetable for double hull requirements for single hull tank vessels is set out in 33 CFR part 157, Appendix G. Neither OPA 90 nor our regulations address if, or when, a vessel owner can convert a single hull tank vessel to include only double sides or only a double bottom to change its phase-out date. As a result, some vessel owners asked the Coast Guard to clarify the types of vessel conversions permitted and their associated effect on phase-out dates.
The Coast Guard published a request for comments on this issue in the
After reviewing the comments received, the Coast Guard published a notice of policy in the
On October 9, 1999, the Department of Transportation and Related Agencies Appropriation Act of 2000 (Pub. L. 106-69 (113 Stat. 986) was enacted. Section 344 of the Act prohibits the Coast Guard from obligating or expending funds to grant extensions of existing single hull tank vessels' phase-out dates under 46 U.S.C. 3703a. This legislation is consistent with our April 21, 1999, policy statement and requires no change to that policy.
The Coast Guard proposes to revise two notes to the regulations presently in 33 CFR part 157. The first note follows § 157.10d(a)(4). The second note is at the end of the phase-out schedule in 33 CFR part 157, Appendix G. Both notes would state that an existing single hull tank vessel's configuration (
If a single hull tank vessel was originally constructed with only double sides or only a double bottom and you converted that tank vessel by adding a full double hull that met the requirements of 33 CFR 157.10d, the converted vessel would then be considered a double hull tank vessel. The new double hull tank vessel would no longer be subject to the phase-out requirements of 33 CFR part 157, Appendix G. A conversion to a double hull tank vessel which meets the requirements of § 157.10d, is not considered an exemption, exception, or waiver of the phase-out requirements of OPA 90 for single hull tank vessels.
The proposed notes do not change the affect of the definition of
The Coast Guard requests your comments on these proposed notes and your recommendations for other amendments to 33 CFR part 157 necessary to ensure clarity of this issue.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
Since this action clarifies the Coast Guard's existing regulatory requirements and does not alter our previous policy on OPA 90 phase-out requirements, we expect no economic impact from this proposed rule and a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard reviewed the effects of this enforcement policy when publishing its notice in the
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult with: Mr. Bob Gauvin, Project Manager, Office of Operating and Environmental Standards, Commandant (G-MSO-2), U.S. Coast Guard, at 202-267-1053, by facsimile 202-267-4570, or by email at rgauvin@comdt.uscg.mil.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this proposed rule under E.O. 13132 and have determined that this rule does not have implications for federalism under that Order. This proposed rule does not change the statutory phase-out dates prescribed by OPA 90 for single hull tank vessels. It clarifies the Coast Guard's policy on whether a vessel can change its category on the schedule for double-hull compliance under OPA 90, but does not change the substantive effect of the existing regulations. This proposed rule would effect no change in the current requirements on State or local governments, which are preempted by operation of law from regulating the design and construction of tank vessels. See
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.
This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We considered the environmental impact of this proposed rule and concluded that preparation of an Environmental Impact Statement is not necessary. The regulatory clarifications proposed by this rule do not change the original assessment to the environment completed when the OPA 90 phase-out regulations in 33 CFR 157 were published. The policy implemented by this proposal is consistent with the Coast Guard's actions of the OPA 90 phase-out schedule since its enactment on August 18, 1990. We are, therefore, relying upon that Environmental Assessment (EA) which together with a new draft Finding of No Significant Impact (FONSI) are available in the docket where indicated under
Cargo vessels, Oil pollution, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 157 as follows:
1. The authority citation for part 157 continues to read as follows:
33 U.S.C. 1903; 46 U.S.C. 3703, 3703a (note); 49 CFR 1.46. Subparts G, H, and I are also issued under section 4115(b), Pub. L. 101-380, 104 Stat. 520; Pub. L. 104-55, 109 Stat. 546.
2. Revise the note to § 157.10d(a)(4) to read as follows:
(a) ***
(4) ***
The double hull compliance dates of 46 U.S.C. 3703a(c) are set out in appendix G to this part. To determine a tank vessel's double hull compliance date under OPA 90, use the vessel's hull configuration (
3. Revise the note at the end of Appendix G to read as follows:
Double sides and double bottoms must meet the requirements in § 157.10d(c) or (d), as appropriate. A vessel will be considered to have a single hull if it does not have double sides and a double bottom that meet the requirements in § 157.10d(c) and § 157.10d(d). To determine a tank vessel's double hull compliance date under OPA 90, use the vessel's hull configuration (
The conversion of a single hull tank vessel to a double hull tank vessel meeting the requirements of § 157.10d complies with OPA 90.