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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule suspends for the 2000-2001 and future seasons the minimum grade, size, quality, maturity, pack, inspection, and other related requirements prescribed under the Oregon-California potato marketing order. It also suspends all reporting and assessment collection requirements. The marketing order regulates the handling of Irish potatoes grown in Modoc and Siskiyou Counties, California, and in all Counties in Oregon, except Malheur County, and is administered locally by the Oregon-California Potato Committee (Committee). This rule will reduce industry-operating expenses.
Effective July 1, 2000. Comments received by September 8, 2000 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail: moab.docketclerk@usda.gov. All comments should reference the docket number and the date and page number of this issue of the
Teresa L. Hutchinson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax: (503) 326-7440; 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. 114 and Marketing Order No. 947, both as amended (7 CFR part 947), regulating the handling of Irish potatoes grown in Modoc and Siskiyou Counties in California, and in all counties in Oregon, except Malheur County, 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. This rule maintains continuity with the current suspension. 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. A 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 suspends the minimum grade, size, quality, maturity, pack, inspection, and other related requirements prescribed under the Oregon-California potato marketing order. It also suspends all reporting and assessment collection requirements. The marketing order regulates the handling of Irish potatoes grown in Modoc and Siskiyou Counties, California, and in all Counties in Oregon, except Malheur County, and is administered locally by the Oregon-California Potato Committee. This rule will reduce industry expenses, as it decides whether the marketing order should be continued.
Section 947.52 of the order authorizes the issuance of regulations for grade, size, quality, maturity, and pack for any variety of potatoes grown in the production area during any period. Section 947.51 authorizes the modification, suspension, or termination of regulations issued under part 947. Termination or suspension authority also is specified in § 947.71.
Section 947.60 provides that whenever potatoes are regulated pursuant to § 947.52, such potatoes must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations. The cost of inspection and certification is borne by handlers.
Prior to the 1999-2000 season, minimum grade, size, quality, maturity, and pack requirements for potatoes regulated under the order were specified in § 947.340
The Committee meets prior to and during each season to consider recommendations for modification, suspension, or termination of the regulatory requirements for Oregon-California potatoes that have been issued on a continuing basis. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department reviews Committee recommendations and information submitted by the Committee and other available information, and determines whether modification, suspension, or termination of the regulatory requirements would tend to effectuate the declared policy of the Act.
At its March 31, 2000, meeting, the Committee recommended suspending the handling and inspection regulations and related sections for the 2000-2001 and future seasons. It also recommended that all reporting and assessment collection requirements be suspended, too. The Committee requested that this rule be effective on July 1, 2000, which is the date shipments of the 2000 Oregon-California potato crop are expected to begin.
The objective of the handling and inspection requirements is to ensure that only acceptable quality potatoes enter fresh market channels, thereby ensuring consumer satisfaction, increasing sales, and improving returns to producers. While the industry continues to believe that quality is an important factor in maintaining sales, the Committee believes the cost of inspection and certification (mandated when minimum requirements are in effect) may exceed the benefits derived. It would like to further assess this matter during the 2000-2001 and future seasons.
Potato prices have been at low levels in recent seasons, and many producers have faced difficulty covering their production costs. Therefore, the Committee continues to explore various alternatives for reducing costs.
The Committee recommended suspending the handling regulations for a one-year trial from July 1, 1999, through June 30, 2000. The Committee was concerned that the elimination of current requirements could possibly result in lower quality potatoes being shipped to fresh markets. Also, there was some concern that the Oregon-California potato industry could lose sales to other potato producing areas that were covered by quality and inspection requirements. For these reasons, the Committee recommended the one-year suspension of the requirements for the 1999-2000 marketing season.
The Committee believes that this one-year trial was successful and recommended continuing the suspension of the handling and inspection requirements indefinitely. Last season's suspension was implemented by the Department with an interim final rule published in the
This rule will enable handlers to ship potatoes without regard to the minimum grade, size, quality, maturity, pack, and inspection requirements, and continue to decrease handler costs associated with inspection. This rule will not restrict handlers from seeking inspection on a voluntary basis. The Committee will continue to evaluate the effects of removing the minimum requirements on marketing and on producer returns at its annual spring meetings.
Consistent with the suspension of § 947.340, this rule also suspends §§ 947.120, 947.123, 947.130, 947.132, 947.133, and 947.134 of the rules and regulations in effect under the order. Sections 947.120 and 947.123 provide authority for hardship exemptions from inspection and certification, and establish reporting and recordkeeping requirements when such exemptions are in place. Sections 947.130, 947.132, 947.133, and 947.134 are safeguard and reporting provisions of the order that are applicable to special purpose shipments when inspection and certification requirements are in place. Section 947.125 regarding minimum quantity assessment exemptions, and § 947.180 regarding monthly assessment reports expire by their own terms on June 30, 2000.
The September 13, 1999, interim final rule also established reporting requirements for the 1999-2000 season so the Committee could obtain information on which to collect assessments. In previous seasons, it had obtained this information from inspection reports. However, these reports were eliminated with the suspension of mandatory inspection. The reporting requirements will not be needed during the 2000-2001 and future seasons because the Committee recommended that no assessments be collected from handlers during these seasons.
Section 947.247 of the marketing order currently prescribes an assessment rate of $0.004 per hundredweight of assessable potatoes for the Oregon-California Potato Committee. Authorization to assess potato handlers enables the Committee to incur expenses that are necessary to administer the marketing order. With the suspension of handling, inspection, and reporting requirements, a limited Committee budget will be needed for program administration during the 2000-2001 and future seasons. For 2000-2001, the Committee recommended a budget of $2,000 for management and its spring meetings. It has about $10,000 in operating reserves to cover approved Committee expenses.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 30 handlers of Oregon-California potatoes who are subject to regulation under the marketing order and approximately 450 potato producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000.
The Committee estimates that about 83 percent of the handlers ship under $5,000,000 worth of Oregon-California
At its March 31, 2000, meeting, the Committee recommended suspending the handling and related regulations. It also recommended suspending all reporting and assessment collection regulations. The Committee requested that this rule be effective on July 1, 2000, which is the date shipments of the 2000 Oregon-California potato crop are expected to begin. This rule will allow the Oregon-California potato industry to market potatoes without minimum grade, size, quality, maturity, pack, and inspection requirements.
The objective of the handling requirements is to ensure that only acceptable quality potatoes enter fresh market channels, thereby ensuring consumer satisfaction, increasing sales, and improving returns to producers. While the industry continues to believe that quality is an important factor in maintaining sales, the Committee believes the cost of inspection and certification (mandated when minimum requirements are in effect) may exceed the benefits derived.
Potato prices have been at low levels in recent seasons, and many producers have faced difficulty covering their production costs. Therefore, the Committee continues to explore various alternatives for reducing costs. The Committee recommended suspending the handling regulations for a one-year trial from July 1, 1999, through June 30, 2000. The Committee was concerned that the elimination of current requirements could possibly result in lower quality potatoes being shipped to fresh markets. Also, there was some concern that the Oregon-California potato industry could lose sales to other potato producing areas that were covered by quality and inspection requirements. For these reasons, the Committee recommended the one-year suspension of the requirements for the 1999-2000 marketing season.
The Committee believes that this one-year trial was successful and recommends continuing the suspension that was finalized by the Department on September 13, 1999 (64 FR 49352). This will enable the Committee to further study the impacts of the suspension and consider appropriate actions for ensuing seasons.
This rule will enable handlers to ship potatoes without regard to the minimum grade, size, quality, maturity, pack, inspection, and related requirements. It will decrease handler costs associated with inspection. This rule will not restrict handlers from seeking inspection on a voluntary basis. The Committee will continue to evaluate the effects of removing the minimum requirements on marketing and on producer returns at its annual spring meetings.
The Committee anticipates that this rule will not negatively impact small businesses. This rule will suspend minimum grade, size, quality, maturity, pack, and inspection requirements. Further, this rule will allow handlers and producers the choice to obtain inspection for potatoes, as needed, thereby reducing costs for the industry. The total cost of inspection and certification for fresh shipments of Oregon-California potatoes during the 1998-99 marketing season was estimated at $600,000. The 1998-99 marketing season was the most recent year for mandatory inspection. This is approximately $20,000 per handler. The Committee expects, however, that most handlers will continue to have some of their potatoes inspected and certified by the Federal-State Inspection Service.
The suspension of the assessment collection requirements for the 2000-2001 and future seasons also will result in some cost savings. Assessment collections during the 1999-2000 season totaled $25,500. Absent the suspension of § 947.247, assessments collected during the 2000-2001 season would have been about $26,000, according to Committee estimates.
The Committee investigated the use of other types of inspection programs as another option to reduce the cost of inspection, but believed they were not viable at this time.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements being suspended by this rule were approved previously by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178. Suspension of all of the reporting requirements is expected to reduce the reporting burden on small or large Oregon-California potato handlers by almost 300 hours, and should further reduce industry expenses. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors.
In addition, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout the Oregon-California potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the March 31, 2000, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: 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
This rule invites comments on suspension of the handling, reporting, and assessment collection regulations under the Oregon-California potato marketing order. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that the regulations suspended by this action no longer tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR Part 947 is amended as follows:
7 U.S.C. 601-674.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Hamilton Sundstrand model NP2000 constant speed propeller. This eight-bladed propeller uses a dual acting digital electro-hydraulic propeller control system and has blades constructed of composite materials. These design features are novel and unusual. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Effective date August 9, 2000.
Jay Turnberg, FAA, Engine and Propeller Standards Staff, Engine and Propeller Directorate, Aircraft Certification Service, ANE-110, 12 New England Executive Park, Burlington, Massachusetts, 01803-5229; telephone (781) 238-7116; fax (781) 238-7199.
On February 9, 1999, Hamilton Sundstrand applied for type certification for a new model NP2000 propeller. The NP2000 propeller uses a digital electro-hydraulic control system and blades that are constructed of composite material.
Conventional propellers on turboprop aircraft use a mechanical governor in the propeller control system that senses propeller speed and adjusts the pitch by directing hydraulic oil to the propeller actuator to increase or decrease pitch to maintain the propeller at the correct revolutions per minute (RPM). When the mechanical governor fails, the propeller pitch is controlled by a backup mechanical overspeed governor.
The Hamilton Sundstrand model NP2000 propeller uses a digital electronic governor in the propeller control system. The digital electronic governor is designed to operate a hydro-mechanical interface to direct hydraulic oil to the propeller actuator to increase or decrease pitch. The digital electronic governor logic commands speed governing, synchrophasing, failure monitoring and provides beta scheduling. The digital electronic governor introduces potential failures associated with electrical power, software commands, data, and environmental effects that can result in hazardous propeller effects. In addition to these features, the system has a backup mechanical overspeed governor.
The special conditions address the following airworthiness issues for the Hamilton Sundstrand model NP2000 propeller:
1. Safety assessment;
2. Propeller control system;
3. Centrifugal load tests;
4. Fatigue limits and evaluation;
5. Bird impact; and
6. Lightning strike.
The Hamilton Sundstrand model NP2000 propeller incorporates propeller blades constructed of composite material. This material has fibers that are woven or aligned in specific directions to give the material directional strength properties. These properties depend on the type of fiber, the orientation and concentration of fiber, and the resin matrix material that binds the fibers together. Composite materials introduce fatigue characteristics and failure modes that differ from metallic materials.
The requirements of part 35 were established to address the airworthiness considerations associated with metal propeller blades. Propeller blades constructed using composite material may be subject to damage due to the high impact forces associated with a bird strike. Thus, composite propellers must demonstrate propeller integrity following a bird strike.
Part 35 does not require a demonstration of propeller integrity following a lightning strike. Composite blades may not safely conduct or dissipate the electrical current from a lightning strike. Severe damage can result if the propellers are not properly protected. Therefore, composite blades must demonstrate propeller integrity following a lightning strike.
The existing certification requirements only address structural and fatigue evaluation of metal propeller blades or hubs, and those metal components of non-metallic blade assemblies. Allowable design stress limits for composite blades must consider the deteriorating effects of the environment and in-service use, particularly those effects from temperature, moisture, erosion and chemical attack. Composite blades also present new and different considerations for retention of the blades in the propeller hub.
The applicable airworthiness requirements do not contain adequate or appropriate safety standards for these novel and unusual design features.
Under § 21.17, Hamilton Sundstrand must show that the model NP2000 propeller meets the applicable provisions of § 21.21 and part 35.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions, as appropriate, are issued in accordance with § 11.49 after public notice, as required by §§ 11.28 and 11.29(b), and become part of the type certification basis in accordance with § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions
The NP2000 propeller will incorporate the following novel and unusual design features: dual acting digital electro-hydraulic propeller control system and blades constructed of composite materials. Special conditions for a safety assessment, the propeller control system, centrifugal load tests, fatigue limits and evaluation, bird impact, and lightning strike address the novel and unusual design features. The special conditions are discussed below.
The special conditions require the applicant to conduct a safety assessment of the propeller in conjunction with the requirements for evaluating the digital electro-hydraulic control system. A safety assessment is necessary due to the increased complexity of these propeller designs and related control systems. The ultimate objective of the safety assessment requirement is to ensure that the collective risk from all propeller failure conditions is acceptably low. The basis is the concept that an acceptable total propeller design risk is achievable by managing the individual risks to acceptable levels. This concept emphasizes reducing the risk of an event proportionally with the severity of the hazard it represents.
The special conditions are written at the propeller level for a typical aircraft. The typical aircraft may be the aircraft intended for installation of the propeller. It is advised that the propeller applicant have an understanding of the intended aircraft, not to show compliance with this requirement, but to design a propeller that will be acceptable for the intended aircraft. For example, a part 25 aircraft may require different failure effects and probability of failure than a part 23 aircraft. Showing compliance with the requirement without consideration of the intended aircraft may result in a propeller that cannot be installed on the intended aircraft.
Currently, part 35 does not adequately address propellers with combined mechanical, hydraulic, digital, and electronic control systems. Propeller mechanical control systems certified under the existing requirements incorporate a mechanical governor that senses propeller speed and adjusts the pitch to absorb the engine power to maintain the propeller at the selected rotational speed. Propellers with digital electronic control components perform the same basic function but use software, electronic circuitry, and electro-hydraulic actuators. The electronic control systems may also incorporate additional functions such as failure monitoring, synchrophasing and beta scheduling. This addition of electronics to the control system may introduce new failure modes that can result in hazardous propeller effects.
Section 35.35 currently requires that the hub and blade retention arrangement of propellers with detachable blades be tested to a centrifugal load of twice the maximum centrifugal force to which the propeller would be subjected during operation. This requirement is limited to the blade and hub retention capacity and does not address composite materials and composite construction of the propeller assembly or changes in materials due to service degradation and environmental factors.
The current requirement does not adequately address composite materials and is limited to metallic hubs and blades and primary load-carrying metal components of non-metallic blades. The special conditions expand the requirements to include all materials and components whose failure would cause a hazardous propeller effect and to take into account material degradation expected in service, material property variations, manufacturing variations, and environmental effects. The special conditions clarify that the fatigue limits may be determined by tests or analysis based on tests. The components whose failure may cause a hazardous propeller effect include control system components, when applicable.
The special conditions require the applicant to conduct fatigue evaluation on a typical aircraft or on an aircraft used during aircraft certification to conduct the vibration tests and evaluation required by either §§ 23.907 or 25.907. The typical aircraft may be one used to develop design criteria for the propeller or another appropriate aircraft.
Currently there are no bird impact requirements in part 35. The existing requirements only address the airworthiness considerations associated with propellers that use wood and metal blades. Propeller blades of this type have demonstrated good service experience following a bird strike. Propeller blade and spinner construction now use composite materials that have a higher potential for damage from bird impact.
The need for bird impact requirements was recognized when composite blades were introduced in the 1970's; the safety issue has been addressed by special tests and special conditions for composite blade certifications. These special conditions were unique for each propeller and effectively stated that the propeller will withstand a four-pound bird impact without contributing to a hazardous propeller effect. These special tests and special conditions have been effective for over four million flight hours. There have not been any accidents attributed to bird impact on composite propellers. The selection of a four-pound bird has been substantiated by the extensive service history of blades that have been designed using the four-pound bird criteria.
Currently there are no lightning strike requirements in part 35. The need for lightning strike requirements was recognized when composite blades were first introduced in the 1970's; the safety issue has been addressed by special tests and special conditions for each design using composite blades. The special tests and special conditions, which were unique for each propeller, effectively stated that the propeller must be able to withstand a lightning strike without contributing to a hazardous propeller effect. These special tests and special conditions have been effective for over four million flight hours. There have not been any accidents attributed to a lightning strike on composite propellers.
Interested persons have been afforded the opportunity to participate in the making of these special conditions. No comments were received on the special conditions as proposed. After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the special conditions without change.
As discussed above, these special conditions are applicable to the Hamilton Sundstrand model NP2000 propeller. Should Hamilton Sundstrand apply at a later date for a change to the type certificate to include another model incorporating the same or novel or unusual design features, the special conditions would apply to that model as
This action affects only certain novel or unusual design features on one model of propellers. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the propeller.
Air transportation, Aircraft, Aviation safety, Safety.
The authority citations for these special conditions are as follows:
49 U.S.C. 106(g), 40113, 44701-44702, 44704.
(a)
(1) Propeller. The propeller is defined by the components listed in the type design.
(2) Propeller system. The propeller system consists of the propeller plus all the components necessary for its functioning, but not necessarily included in the propeller type design.
(3) Hazardous propeller effects. The following are regarded as hazardous propeller effects:
(i) A significant overspeed of the propeller.
(ii) The development of excessive drag.
(iii) Thrust in the opposite direction to that commanded by the pilot.
(iv) A release of the propeller or any major portion of the propeller.
(v) A failure that results in excessive unbalance.
(vi) The unintended movement of the propeller blades below the established minimum in-flight low pitch position.
(4) Major propeller effects. The following are regarded as major propeller effects:
(i) An inability to feather.
(ii) An inability to command a change in propeller pitch.
(iii) A significant uncommanded change in pitch.
(iv) A significant uncontrollable torque or speed fluctuation.
(b)
(1)(i) An analysis of the propeller system must be carried out to assess the likely consequence of all failures that can reasonably be expected to occur. This analysis must consider the following:
(A) The propeller system in a typical installation. When the analysis depends on representative components, assumed interfaces, or assumed installed conditions, the assumptions must be stated in the analysis.
(B) Consequential secondary failures and latent failures.
(C) Multiple failures referred to in paragraph (b)(4) or that result in hazardous propeller effects.
(ii) A summary must be made of those failures that could result in major propeller effects or hazardous propeller effects, together with an estimate of the probability of occurrence of those effects.
(iii) It must be shown that hazardous propeller effects are not predicted to occur at a rate in excess of that defined as extremely remote (probability of 10
(iv) It must be shown that major propeller effects are not predicted to occur at a rate in excess of that defined as remote (probability of 10
(2) If significant doubt exists as to the effects of failures or likely combination of failures, any assumption of the effect may be required to be verified by test.
(3) It is recognized that the probability of primary failures of certain single elements (for example, blades) cannot be sensibly estimated in numerical terms. If the failure of such elements is likely to result in hazardous propeller effects, reliance must be placed on meeting the prescribed integrity requirements of part 35 and these special conditions. These instances must be stated in the safety analysis.
(4) If reliance is placed on a system or device, such as safety devices, feathering and overspeed systems, instrumentation, early warning devices, maintenance checks, and similar equipment or procedures, to prevent a failure from progressing to hazardous propeller effects, the possibility of a safety system failure in combination with a basic propeller failure must be covered. If items of a safety system are outside the control of the propeller manufacturer, the assumptions of the safety analysis with respect to the reliability of these parts must be clearly stated in the analysis and identified in the installation and operation instructions required under § 35.3.
(5) If the acceptability of the safety analysis is dependent on one or more of the following, it must be identified in the analysis and appropriately substantiated.
(i) Performance of mandatory maintenance actions at stated intervals required for certification and other maintenance actions. This includes the verification of the serviceability of items that could fail in a latent manner. These maintenance intervals must be published in the appropriate manuals. Additionally, if errors in maintenance of the propeller system could lead to hazardous propeller effects, the appropriate procedures must be published in the appropriate propeller manuals.
(ii) Verification of the satisfactory functioning of safety or other devices at pre-flight or other stated periods. The details of this satisfactory functioning must be published in the appropriate manuals.
(iii) The provisions of specific instrumentation not otherwise required.
(iv) A fatigue assessment.
(6) If applicable, the safety analysis must include the assessment of indicating equipment, manual and automatic controls, governors and propeller control systems, synchrophasers, synchronizers, and propeller thrust reversal systems.
(c)
(1) The propeller control system must be designed, constructed and validated to show that:
(i) The propeller control system, operating in normal and alternative operating modes and transition between operating modes, performs the intended functions throughout the declared operating conditions and flight envelope.
(ii) The propeller control system functionality is not adversely affected by the declared environmental conditions, including temperature, electromagnetic interference (EMI), high intensity radiated fields (HIRF) and lightning. The environmental limits to which the system has been satisfactorily validated must be documented in the appropriate propeller manuals.
(iii) A method is provided to indicate that an operating mode change has occurred if flight crew action is required. In such an event, operating instructions must be provided in the appropriate manuals.
(2) The propeller control system must be designed and constructed so that, in addition to compliance with paragraph (b), Safety analysis:
(i) A level of integrity consistent with the intended aircraft is achieved.
(ii) A single failure or malfunction of electrical or electronic components in the control system does not cause a hazardous propeller effect.
(iii) Failures or malfunctions directly affecting the propeller control system in a typical aircraft, such as structural failures of attachments to the control, fire, or overheat, do not lead to a hazardous propeller effect.
(iv) The loss of normal propeller pitch control does not cause a hazardous propeller effect under the intended operating conditions.
(v) The failure or corruption of data or signals shared across propellers does not cause a major or hazardous propeller effect.
(3) Electronic propeller control system imbedded software must be designed and implemented by a method approved by the Administrator that is consistent with the criticality of the performed functions and minimizes the existence of software errors.
(4) The propeller control system must be designed and constructed so that the failure or corruption of aircraft-supplied data does not result in hazardous propeller effects.
(5) The propeller control system must be designed and constructed so that the loss, interruption or abnormal characteristic of aircraft-supplied electrical power does not result in hazardous propeller effects. The power quality requirements must be described in the appropriate manuals.
(6) The propeller control system description, characteristics and authority, in both normal operation and failure conditions, and the range of control of other controlled functions must be specified in the appropriate propeller manuals.
(d)
(1) The hub, blade retention system, and counterweights must be tested for a period of one hour to a load equivalent to twice the maximum centrifugal load to which the propeller would be subjected during operation at the maximum rated rotational speed.
(2) If appropriate, blade features associated with transitions to the retention system (e.g., a composite blade bonded to a metallic retention) may be tested either during the test required by paragraph (d)(1) or in a separate component test.
(3) Components used with or attached to the propeller (
(i) Testing at the required load for a period of 30 minutes; or
(ii) Analysis based on test.
(e)
(i) Hubs;
(ii) Blades;
(iii) Blade retention components; and
(iv) Other components that are affected by fatigue loads and that are shown under paragraph (b), Safety analysis, as having a fatigue failure mode leading to hazardous propeller effects.
(2) The fatigue limits must take the following into account:
(i) All known and reasonably foreseeable vibration and cyclic load patterns that are expected in service; and
(ii) Expected service deterioration, variations in material properties, manufacturing variations, and environmental effects.
(3) A fatigue evaluation of the propeller must be conducted to show that hazardous propeller effects due to fatigue will be avoided throughout the intended operational life of the propeller on either:
(i) The intended aircraft, by complying with §§ 23.907 or 25.907 as applicable; or
(ii) A typical aircraft.
(f)
(g)
Federal Aviation Administration, DOT.
Final rule.
This document adopts a new airworthiness directive (AD) that applies to all The New Piper Aircraft, Inc. (Piper) PA-42 series airplanes that are equipped with pneumatic deicing boots. This AD requires you to revise the Airplane Flight Manual (AFM) to include requirements for activation of the airframe pneumatic deicing boots. This AD is the result of reports of in-flight incidents and an accident (on airplanes other than the affected Piper airplanes) that occurred in icing conditions where the airframe pneumatic deicing boots were not activated. The Piper PA-42 series airplanes have a similar type design (as it relates to airframe pneumatic deice boots) to the incident and accident airplanes. The actions specified by this AD are intended to assure that flight crews activate the pneumatic wing and
This AD becomes effective on August 21, 2000.
You may examine information related to this AD at the Federal Aviation Administration (FAA), Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-20-AD, 901 Locust, Room 506, Kansas City, Missouri 64106.
S.M. Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4145; facsimile: (816) 329-4090.
This AD is the result of reports of in-flight incidents and an accident (on airplanes other than the affected Piper airplanes) that occurred in icing conditions where the airframe pneumatic deicing boots were not activated. The Piper PA-42 series airplanes have a similar type design (as it relates to airframe pneumatic deice boots) to the incident and accident airplanes.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the final 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.
49 U.S.C. 106(g), 40113, 44701.
(a)
(1) equipped with pneumatic deicing boots; and
(2) certificated in any category.
(b)
(c)
(d)
“• Except for certain phases of flight where the AFM specifies that deicing boots should not be used (
• Wing and Tail Leading Edge Pneumatic Deicing Boot System, if installed, must be activated:
—At the first sign of ice formation anywhere on the aircraft, or upon annunciation from an ice detector system, whichever occurs first; and
—The system must either be continued to be operated in the automatic cycling mode,
• The wing and tail leading edge pneumatic deicing boot system may be deactivated only after:
—leaving known or observed/detected icing that the flight crew has visually observed on the aircraft or was identified by the on-board sensors; and
—after the airplane is determined to be clear of ice.”
The FAA recommends periodic treatment of deicing boots with approved ice release agents, such as ICEX,
(e)
(f)
(1) Your alternative method of compliance provides an equivalent level of safety; and
(2) The Manager, Small Airplane Directorate, approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106.
This AD applies to each airplane identified in paragraph (a) of this AD, 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 (f) 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 you have not eliminated the unsafe condition, specific actions you propose to address it.
(g)
(h)
(i)
Social Security Administration (SSA).
Interim final rules with a request for comments.
We are issuing these interim final rules to reflect and implement section 207 of the Foster Care Independence Act of 1999 (Public Law (Pub. L.) 106-169). This provision amended the Social Security Act (the Act) by adding a new section 1129A which provides for the imposition by SSA of a penalty on any person who knowingly (knew or should have known or acted with knowing disregard for the truth) makes a statement that is false or misleading or omits a material fact for use in determining any right to or the amount of monthly benefits under titles II or XVI. The penalty is nonpayment for a specified number of months of benefits under title II that would otherwise be payable to the person and ineligibility for cash benefits under title XVI (including State supplementary payments made by SSA according to § 416.2005).
Although we are issuing these rules as interim final rules, we are also asking for public comments on the changes made by these rules.
These regulations are effective July 10, 2000. To be sure your comments are considered, we must receive them by September 8, 2000.
Comments should be submitted in writing to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703, sent by telefax to (410) 966-2830, sent by E-mail to “
Gareth Dence, Social Insurance Specialist, Office of Program Benefits, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-9872 or TTY (410) 966-5609. For information on eligibility, claiming benefits, or coverage of earnings, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778.
Section 207 of the Foster Care Independence Act of 1999 (Pub. L. 106-169) amended title XI of the Act by adding section 1129A to help prevent and respond to fraud and abuse in SSA's programs and operations. Section 1129A provides for the imposition by SSA of a penalty on an individual who makes, or causes to be made, a statement or representation of a material fact that the person knows or should know is false or misleading or omits a material fact, or that the person makes with a knowing disregard for the truth. The statement must be made for use in determining eligibility for or the amount of benefits under title II or XVI. The penalty is nonpayment for 6, 12 or 24 months of benefits under title II that would otherwise be payable to the person and ineligibility for the same period of time for cash benefits under title XVI (including State supplementary payments made by SSA according to § 416.2005).
Section 207 of Pub. L. 106-169 directs the Commissioner of Social Security to develop rules prescribing the administrative process for making determinations under section 1129A, including when periods of penalty shall commence, and providing guidance on the exercise of discretion as to whether the penalty should be imposed in particular cases. Consequently, we are adding new rules at §§ 404.459 and 416.1340 to reflect and implement section 1129A.
Section 1129A of the Act applies to statements and representations made on or after December 14, 1999, the date of enactment of the Foster Care Independence Act of 1999.
We are adding new §§ 404.459 and 416.1340 to our regulations. The organization and wording of these two sections are essentially identical. These sections make it clear, and as Congress provided, that if an individual knowingly (knew or should have known
Subsection (a) describes the conditions under which you will be subject to a penalty by SSA for knowingly making a false or misleading statement of a material fact.
Subsection (b) explains that the penalty is both nonpayment of benefits under title II and ineligibility for cash benefits under title XVI. When we impose a penalty on you, you cannot receive benefits under either title II or title XVI even if the false or misleading statement was made in connection with benefits under only one of the two programs. We further explain that, as provided by the law, if we impose a penalty on your title XVI benefits, you also will not be eligible to receive State supplementary payments that SSA pays by agreement with the State.
Subsection (c) explains how long the penalty for making a false or misleading statement will last. As provided in section 1129A, the penalty will last six consecutive months the first time we penalize you, twelve consecutive months the second time we penalize you, and twenty-four consecutive months the third or subsequent time we penalize you. The penalty will not begin to run until you would otherwise be eligible for payment of benefits under either title II or title XVI. You will be ineligible to receive benefits at any time during the penalty period. If more than one penalty period has been imposed but they have not yet run, the penalties will not run concurrently.
Subsection (d) explains, as provided in section 1129A, that the imposition of a penalty will affect only your own eligibility for benefits under titles II and XVI. If we impose a penalty on you, the penalty will not affect the eligibility or amount of benefits payable under titles II or XVI to another person. For example, another person (such as your spouse or child) may be entitled to benefits under title II based on your earnings record. Benefits would still be payable to that person to the extent that you would be receiving such benefits if the penalty had not been imposed. As another example, if you are receiving title II benefits that are limited under the family maximum provision (§ 404.403) and we stop your benefits because we impose a penalty on you, we will not increase the benefits of other family members who are limited by the family maximum provision simply because you are not receiving benefits as a result of the penalty. As a third example, if you and your spouse are receiving title XVI benefits, those benefit payments to your spouse based on the benefit rate for a couple will not be affected because of the penalty. Your spouse will continue to receive one half of the couple rate.
Section 1129A also specifically provides that the imposition of a penalty will not affect your eligibility for Medicare and Medicaid benefits (titles XVIII and XIX of the Act).
Subsection (e) explains that to impose a penalty on you, we must find that you knowingly made a false or misleading statement or omitted a material fact. “Knowingly” means that you knew or should have known that the statement was false or misleading or omitted a material fact, or you made the statement with a knowing disregard for the truth. We will base our decision to impose a penalty on the evidence and the reasonable inferences that can be drawn from that evidence, not on mere speculation or suspicion. In determining whether you knowingly made a false or misleading statement or omitted a material fact, we will consider all of the evidence in the record, including any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have had at the time. In determining whether you acted knowingly, we will also consider the significance of the statement in terms of its likely impact on your benefits under titles II and/or XVI.
Your false or misleading statement may be investigated for fraud by the Office of the Inspector General for civil monetary penalty purposes (see section 1129 of the Act) or prosecuted by the United States Attorney's Office. We may impose a penalty under these rules in addition to any other penalties that may be prescribed by law.
Subsection (f) explains that if you disagree with our initial determination to impose a penalty, you have the right to request reconsideration of the penalty decision, as discussed in §§ 404.907 and 416.1407. If you do request reconsideration, you will be able to present your case in one of three ways:
1. Case review—We will give you an opportunity to review the evidence in our files and then to present oral and written evidence to us;
2. Informal conference—In addition to following the procedures of a case review, we will give you an opportunity to present witnesses; and
3. Formal conference—In addition to following the procedures of an informal conference, we will give you an opportunity to request us to subpoena adverse witnesses and relevant documents and to cross-examine adverse witnesses.
After reconsideration, if you do not agree with our reconsidered determination you may follow the normal administrative and judicial review process by requesting a hearing before an administrative law judge, Appeals Council review and Federal court review, as described in § § 404.900 and 416.1400.
Subsection (g) explains when the penalty period begins and ends. That section explains that the penalty period will not begin until the month you would otherwise be eligible to receive payments under either title II or title XVI. In addition, the point at which the penalty period begins may depend on whether you request reconsideration of our initial determination to penalize you. If you do not request reconsideration, the penalty period will begin no earlier than the first day of the second month following the month in which the time limit for requesting reconsideration ends. If you request reconsideration and our reconsidered determination does not change our original decision to penalize you, the penalty period will begin no earlier than the first day of the second month following the month we notify you of our reconsidered determination. The penalty period ends on the last day of the final month of the penalty period. Once a sanction period begins it will run continuously even if payments are intermittent.
Executive Order (E.O.) 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. In addition to your substantive comments on these rules, we invite your comments on how to make these rules easier to understand.
For example:
• Have we organized the material to suit your needs?
• Are the requirements in the rules clearly stated?
• Do the rules contain technical language or jargon that is unclear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?
The electronic file of this document is available on the internet at
Pursuant to section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), as amended by section 102 of Pub. L. 103-296, SSA follows the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of its regulations. The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that, for the reasons discussed below, good cause exists under 5 U.S.C. 553(b)(B) for dispensing with the notice and public comment procedures in this case.
Pub. L. 106-169 was signed into law on December 14, 1999. Section 207 applies to statements and representations made on or after this date of enactment. Moreover, section 207 requires the Commissioner to issue regulations prescribing the administrative process for making determinations under this section within 6 months after enactment. Accordingly, issuing these rules as a notice of proposed rulemaking would have delayed issuance of final rules until well past the statutory effective date and the regulatory issuance date specified by Congress. Therefore, issuing these regulations as interim final rules allows us to come as close as possible to that specified date.
In light of the immediacy of the effective date and the Congressional direction that we issue regulations needed to carry out these statutory provisions within 6 months, we believe that, under the APA, good cause exists for waiver of the prior notice procedures since issuance of proposed rules would be impracticable. Although we are issuing these rules as interim final regulations, we are requesting public comments regarding the substance of these interim final rules and will issue revised rules if necessary.
For the same reasons, we also find good cause for dispensing with the 30-day delay in the effective date of a substantive rule, provided for by 5 U.S.C. 553(d).
We have consulted with the Office of Management and Budget (OMB) and determined that these interim final rules do not meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were not subject to OMB review. We have also determined that these rules meet the plain language requirement of Executive Order 12866 and the President's memorandum of June 1, 1998. However, as noted earlier, we invite your comments on how to make the rules easier to understand.
We certify that these interim final regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
These interim final regulations will impose no additional reporting or recordkeeping requirements requiring OMB clearance.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income.
Secs. 202, 203, 204(a) and (e), 205(a) and (c), 222(b), 223(e), 224, 225, 702(a)(5) and 1129A of the Social Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 422(b), 423(e), 424a, 425, 902(a)(5) and 1320a-8a).
(a)
(1) You know or should know that the statement or representation—
(i) Is false or misleading; or
(ii) Omits a material fact; or
(2) You make the statement with a knowing disregard for the truth.
(b)
(c)
(1) Six consecutive months the first time we penalize you;
(2) Twelve consecutive months the second time we penalize you; and
(3) Twenty-four consecutive months the third or subsequent time we penalize you.
(d)
(1) Your eligibility for benefits that you would otherwise be eligible for under titles XVIII and XIX but for the imposition of the penalty; and
(2) The eligibility or amount of benefits payable under titles II or XVI to another person. For example, another person (such as your spouse or child) may be entitled to benefits under title II based on your earnings record. Benefits would still be payable to that person to
(e)
(f)
(g)
(1) If you do not request reconsideration of our initial determination to penalize you, the penalty period will begin no earlier than the first day of the second month following the month in which the time limit for requesting reconsideration ends. The penalty period will end on the last day of the final month of the penalty period. For example, if the time period for requesting reconsideration ends on January 10, a 6-month period of nonpayment begins on March 1 if you would otherwise be eligible to receive benefits for that month, and ends on August 31.
(2) If you request reconsideration of our initial determination to penalize you and the reconsidered determination does not change our original decision to penalize you, the penalty period will begin no earlier than the first day of the second month following the month we notify you of our reconsidered determination. The penalty period will end on the last day of the final month of the penalty period. For example, if we notify you of our reconsidered determination on August 31, 2001, and you are not otherwise eligible for payment of benefits at that time, but would again be eligible to receive payment of benefits on October 1, 2003, a 6-month period of nonpayment would begin on October 1, 2003 and end on March 31, 2004.
Secs. 702(a)(5), 1129A, 1611-1615, 1619, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382-1382d, 1382h, 1383 and 1320a-8a).
(a)
(1) You know or should know that the statement or representation
(i) Is false or misleading; or
(ii) Omits a material fact; or
(2) You make the statement with a knowing disregard for the truth.
(b)
(c)
(1) Six consecutive months the first time we penalize you;
(2) Twelve consecutive months the second time we penalize you; and
(3) Twenty-four consecutive months the third or subsequent time we penalize you.
(d)
(1) Your eligibility for benefits that you would otherwise be eligible for under titles XVIII and XIX but for the imposition of the penalty; and
(2) The eligibility or amount of benefits payable under titles II or XVI to another person. For example, if you and your spouse are receiving title XVI benefits, those benefit payments to your spouse based on the benefit rate for a couple will not be affected because of the penalty. Your spouse will receive one half of the couple rate.
(e)
(f)
(g)
(1) If you do not request reconsideration of our initial determination to penalize you, the penalty period will begin no earlier than the first day of the second month following the month in which the time limit for requesting reconsideration ends. The penalty period will end on the last day of the final month of the penalty period. For example, if the time period for requesting reconsideration ends on January 10, a 6-month period of nonpayment begins on March 1 if you would otherwise be eligible to receive benefits for that month, and ends on August 31.
(2) If you request reconsideration of our initial determination to penalize you and the reconsidered determination does not change our original decision to penalize you, the penalty period will begin no earlier than the first day of the second month following the month we notify you of our reconsidered determination. The penalty period will end on the last day of the final month of the penalty period. For example, if we notify you of our reconsidered determination on August 31, 2001, and you are not otherwise eligible for payment of benefits at that time, but would again be eligible to receive payment of benefits on October 1, 2003, a 6-month period of nonpayment would begin on October 1, 2003 and end on March 31, 2004.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing temporary moving safety zones around the aircraft carrier USS
This rule is effective from 6 a.m. on Monday, July 10, 2000 until 2 p.m. on Monday, July 17, 2000.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD01-00-130 and are available for inspection or copying at U.S. Coast Guard Marine Safety Office Boston, 455 Commercial Street, Boston, MA 02109 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Lieutenant Brian Downey, Marine Safety Office Boston, 617-223-3000.
As authorized by 5 U.S.C. 553(b)(B), a notice of proposed rulemaking (NPRM) was not published for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after publication in the
This regulation establishes two moving safety zones extending 300 yards in all directions from the aircraft carrier USS
This 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).
The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. The safety zone temporarily closes portions of North Channel, President Roads, and Boston Inner Harbor. Due to the limited duration of the event, and the Coast Guard's advance marine advisories, the safety zone will minimally affect vessel traffic.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. “Small entities” may include (1) small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and (2) governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of Boston Harbor during the periods the safety zones will be enforced. These safety zones will not have a significant economic impact on a substantial number of small entities because traffic may be permitted to pass through the zone with the permission of the Captain of the Port (COTP). Additionally, since the safety zone will be moving with the USS
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this 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 figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46.
2. Add temporary section 165.T01-138 to read as follows:
(a) Safety Zones:
(1) USS
(i)
(ii)
(2) USS
(i) The following area is a safety zone: All waters extending three hundred (300) yards in any direction from the outbound aircraft carrier USS
(ii)
(b)
(1) In accordance with the general regulations in section 165.23 of this part, entry into or movement within this zone is prohibited unless authorized by the Captain of the Port (COTP) Boston.
(2) All persons and vessel operators shall comply with the instructions of the COTP or the designated on-scene U.S. Coast Guard patrol personnel. U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.
(3) The general regulations covering safety zones in section 165.23 of this part apply.
(c) Effective date: This section is effective from 6 a.m. on July 10, 2000 until 2 p.m. July 17, 2000.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a safety zone for the Arkansas River mile 290.0 to 293.0. The zone is needed because of a bridge exercise being held by the United States Army. To ensure the safety of life and property on the navigable waters during this exercise, no vessels may enter or remain within this safety zone unless specifically authorized by the Captain of the Port, Memphis.
This rule is effective from 8:00 A.M. CST to 4:00 P.M. CST on July 25, 2000.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket 00-014 and are available for inspection or copying at U.S. Coast Guard Marine Safety Office Memphis between 7:30 A.M. and 4:00 P.M., Monday through Friday, except Federal holidays.
COTP Memphis representative, LTJG Brian Meier, at (901) 544-3941, ext. 232.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. After speaking with the Chairman of the Arkansas River Emergency Reaction Team, both the Coast Guard and local industry agreed that the exercise would cause minimal commercial disturbance. Under 5 U.S.C. (d)(3), the Coast Guard also finds good cause to make this rule effective less than 30 days after publication in the
The United States Army Reserve Command (USARC) has identified the 493rd Engineer Group to be the Executing Command for BRIDGEX 2000 to be conducted at Ft. Chaffee, AR. Two floating ribbon bridges will be constructed across the Arkansas River. These two bridges will be made up of approximately 100 pieces of floating road or raft bays, and will be connected together using approximately 60 boats. These two bridges will then be used to cross military vehicles from both shores in both directions. After the bridges are disassembled and the river is cleared of all army equipment, the river will be reopened to commercial and recreational traffic. The purpose of any river crossing is to project combat power across a water obstacle to accomplish a mission. The 493rd Engineer Group and its attached units will utilize this exercise to sharpen skills in preparation for doing this mission in times of peace or in times of war. This regulation is issued pursuant to 33 U.S.C. 1231 as set out in the authority citation for all of Part 165.
This 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). The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The regulation will only be in effect for a short period of time, and the impacts on routine navigation are expected to be minimal.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This regulation will only be in effect for eight hours and the impacts on small entities are expected to be minimal.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this 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 figure 2-1, paragraph (34)g, of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1225 and 1231; 50 U.S.C. 191; and 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 1605; 49 CFR 1.46.
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Direct final rule.
The EPA is approving negative declarations submitted by the States of New Hampshire, Rhode Island, and Vermont for aerospace coating operations. This action is being taken in accordance with the Clean Air Act (CAA).
This direct final rule is effective on September 8, 2000 without further notice, unless EPA receives adverse comment by August 9, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Comments may be mailed to David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. Environmental Protection Agency, EPA New England, One Congress Street, Suite 1100, Boston, MA 02114-2023. Copies of the documents relevant to this action are available for public inspection during normal business hours, by appointment at the Office Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England, One Congress Street, 11th floor, Boston, MA, 02114-2023. Copies of New Hampshire's submittal are also available at Air Resources Division, Department of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095. Copies of Rhode Island's submittal are also available at Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, RI 02908-5767. Copies of Vermont's submittal are also available Air Pollution Control Division, Agency of Natural Resources, Building 3 South, 103 South Main Street, Waterbury, VT 05676.
Anne E. Arnold, (617) 918-1047.
This section is organized as follows:
What action is EPA taking?
What are the relevant CAA requirements?
What is a control techniques guideline (CTG)?
What is the aerospace CTG?
How have New Hampshire, Rhode Island, and Vermont addressed the CAA requirements for aerospace coating operations?
What is EPA's response to the states' submittals?
EPA is approving negative declarations for aerospace coating operations submitted by New Hampshire on September 11, 1998, by Rhode Island on March 28, 2000, and by Vermont on July 28, 1998. EPA is also correcting Table (e) in 40 CFR 52.2070 to include Rhode Island's negative declaration for the synthetic organic chemical manufacturing industry (SOCMI) distillation and reactor processes control techniques guideline categories. EPA approved the SOCMI distillation and reactor processes negative declaration for Rhode Island on December 2, 1999 (64 FR 67495) but neglected to add the appropriate entry to Table (e) at that time.
Sections 182(b)(2) and 184(b) of the Clean Air Act contain the requirements relevant to today's action. Section 182(b)(2) requires States to adopt RACT rules for all areas designated nonattainment for ozone and classified as moderate or above. There are three parts to the section 182(b)(2) RACT requirement: (1) RACT for sources covered by an existing Control Techniques Guideline (CTG)—
Pursuant to the CAA Amendments of 1990, all of Rhode Island and portions of New Hampshire were classified as serious nonattainment for ozone. 56 FR 56694 (Nov. 6, 1991). These areas were, thus, subject to the section 182(b)(2) RACT requirement.
In addition, the States of New Hampshire, Rhode Island, and Vermont are located in the Northeast Ozone Transport Region (OTR). These states are, therefore, subject to section 184(b) of the amended CAA. Section 184(b) requires that RACT be implemented in the entire state for all VOC sources covered by a CTG issued before or after the enactment of the CAA Amendments of 1990 and for all major VOC sources (defined as 50 tons per year for sources in the OTR).
A CTG is a document issued by EPA which establishes a “presumptive norm” for RACT for a specific VOC source category. Under the pre-amended CAA, EPA issued CTG documents for 29 categories of VOC sources. Section 183 of the amended CAA requires that EPA issue 13 new CTGs. Appendix E of the General Preamble of Title I (57 FR 18077) lists the categories for which EPA plans to issue new CTGs.
EPA issued a CTG for aerospace coating operations on March 27, 1998 (63 FR 15006). This CTG applies to aerospace coating operations with the potential to emit 25 tons of VOC or more per year.
In response to the CAA requirement to adopt RACT for all sources covered by a new CTG, New Hampshire, Rhode Island, and Vermont submitted negative declarations to EPA for the aerospace coating operations CTG category. Through the negative declaration, New Hampshire, Rhode Island, and Vermont are asserting that there are no sources within their respective states that would be subject to a rule for aerospace coating operations.
EPA is approving these negative declaration submittals as meeting the CAA section 182(b)(2) and section 184(b) requirements, as applicable, for this source category. However, if evidence is submitted by August 9, 2000 that there are existing sources within the States of New Hampshire, Rhode Island, or Vermont that, for purposes of meeting the RACT requirements, would be subject to a rule for aerospace coating operations, if developed, such comments would be considered adverse and EPA would withdraw its approval action on that State's negative declaration.
The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 8, 2000 and no further action will be taken on the proposed rule.
Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any State Implementation Plan. Each request for revision to the State Implementation Plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.
EPA is approving negative declarations submitted by New Hampshire, Rhode Island, and Vermont for aerospace coating operations. EPA is also correcting Table (e) in 40 CFR 52.2070 to include Rhode Island's negative declaration for the SOCMI distillation and reactor processes CTG categories.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Hydrocarbons, Ozone.
42 U.S.C. 7401
(c) * * *
(67) Revisions to the State Implementation Plan submitted by the New Hampshire Air Resources Division on September 11, 1998.
(i) Additional materials.
(A) Letter from the New Hampshire Department of Environmental Services dated September 11, 1998 stating a negative declaration for the aerospace coating operations Control Techniques Guideline category.
(e) Non Regulatory.
(c) * * *
(26) Revisions to the State Implementation Plan submitted by the Vermont Air Pollution Control Division on July 28, 1998.
(i) Additional materials.
(A) Letter from the Vermont Air Pollution Control Division dated July 28, 1998 stating a negative declaration for the aerospace coating operations Control Techniques Guideline category.
Environmental Protection Agency (EPA).
Final rule; technical correction.
On September 30, 1999 the Environmental Protection Agency (EPA) published the Hazardous Waste Combustors NESHAP Final Rule. On November 19, 1999 EPA published the first technical correction of that rule to address a time sensitive situation. Today's rule corrects numerous typographical errors and clarifies several issues from the September 30, 1999 rule, one issue from a closely-related June 19, 1998 rule, and makes one adjustment to the November 19, 1999 technical correction. These corrections and clarifications will make the NESHAP final rule easier to understand and implement.
This rule is effective on July 10, 2000.
The public may obtain a copy of this technical correction at the RCRA Information Center (RIC), located at Crystal Gateway One, 1235 Jefferson Davis Highway, First Floor, Arlington, Virginia.
For general information, contact the RCRA Hotline at (800) 424-9346 (toll free) or (703) 412-9812 in the Washington, D.C. metropolitan area. For information on this rule contact David Hockey (5302W), Office of Solid Waste, Ariel Rios
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because it merely corrects errors and clarifies certain requirements in the Hazardous Waste Combustors NESHAP Final Rule (64 FR 52828, September 30, 1999). Today's action also supplies one omission from the emergency technical correction published on November 19, 1999 (64 FR 63209) and makes one correction to the related June 19, 1998 (63 FR 33783) final rule. With the exception of the emergency technical correction published November 19, 1999, the final rules were subject to notice and comment. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
The Agency has received numerous comments from the regulated community requesting clarification and correction of the rule finalizing NESHAPS for hazardous waste combustors (64 FR 52828, September 30, 1999). The Agency is correcting typographical errors and misprints, as well as clarifying several matters related to preamble statements and regulatory provisions. Today's action also supplies one omission from the emergency technical correction published on November 19, 1999 (64 FR 63209) and makes one correction to the related June 19, 1998 (63 FR 33783) final rule.
The regulated community has also raised other issues and questions through informal comments as well as through litigation that will in many cases require notice and comment rulemaking. The Agency plans to propose changes in the
The unit for particulate matter (PM) concentration given in section 12.2 of Method 5i in appendix A of part 60 is “mg/unit volume” (see 64 FR 53030). However, in the preamble discussion on pages 52927-52928, the PM concentration is expressed as “mg/dscm.” The Agency is revising the mg/unit volume in Appendix A, because the PM criteria would change depending on the volume measured. Dry standard cubic meter (dscm) is the intended and more precise measure.
Table 1 in § 63.1200 (see page 64 FR 53038) explains the exemptions from these regulations for hazardous waste combustors. According to (1)(ii) of that table, previously affected sources have to be in compliance with the closure requirements of subpart G of 40 CFR part 63, 40 CFR part 264, or 40 CFR part 265 to be exempt from the requirements of subpart EEE of part 63. The Agency agrees with commenters that, under our existing regulations, previously affected sources need only have initiated these closure requirements to be exempt, and today we are revising Table 1 of § 63.1200 to reflect this change.
The preamble to the September 30, 1999 rule states on page 52848 that, to comply with the carbon monoxide and hydrocarbon emission standard, you must continuously monitor and comply with the emission standard for either carbon monoxide or hydrocarbons. If you choose to continuously monitor carbon monoxide, however, you must document compliance with the hydrocarbon standard only during the destruction and removal efficiency (DRE) test or its equivalent.
Several stakeholders note that the regulatory language implementing this provision could be interpreted to mean that continuous monitoring and compliance with both the carbon monoxide and hydrocarbon emissions standards are required. The Agency is today revising the regulatory language to clarify as intended that continuous monitoring and compliance with either the carbon monoxide or hydrocarbon standard is required. See revised §§ 63.1203(a)(5)(i), 63.1203(b)(5)(i), 63.1204(a)(5)(i)(A), 63.1204(a)(5)(ii)(B), 63.1204(b)(5)(i)(A)(
The regulatory sections that prescribe emission standards for hazardous waste burning incinerators (§ 63.1203), cement kilns (§ 63.1204), and lightweight aggregate kilns (§ 63.1205) each reference subparts BB and CC of 40 CFR part 264 that prescribe emission standards for equipment leaks, tanks, surface impoundments, and containers. Several commenters assert that is is redundant and unnecessary to reference these subparts because they are separately applicable under part 264. We agree and, to avoid redundancy, therefore delete the references from this rule.
The preamble to the September 30, 1999 rule states that the rule allows you to operate after a failed test for purposes of pretesting or performance testing for up to a total of 720 hours of operation, renewable at the discretion of the Administrator. See 64 FR 52914 and § 63.1207(k)(2). We explain in the preamble that the 720 operating period is renewable at the discretion of the Administrator in response to commenters concerns about unforeseen delays in pretesting and testing activities and given that current RCRA rules allow renewals.
Several stakeholders noticed that we did not include allowance for renewals of the 720 hour periods in two other similar provisions of the rule: § 63.1206(b)(5)(i)(C)(
The preamble to the September 30, 1999 rule states that feedrate limits for mercury, semi-volatile metals, low-volatile metals, and hydrochloric acid/chlorine gas must be determined by establishing the “average of the test run averages” from the comprehensive performance test (see pages 64 FR 52943, 52946, and 52952, respectively). However, in § 63.1209, the requirement is incorrectly expressed as the “average of the average hourly rolling averages for each run” from the comprehensive performance test. Today's rule amends the regulatory language to read “the average of the test run averages,” which was the intended phrase. We are also clarifying that the preamble summary tables for semi-volatile metals and low-volatile metals (64 FR 52945) and hydrochloric acid/chlorine gas (64 FR 52951) should state that feedrate limits for 12-hour averaging periods are established by the average of test run averages rather than the average of the average hourly rolling averages for each run.
Today's rule corrects the reference to § 63.1206(c)(7), as well as adding a new reference to for § 63.1206(c)(5), to the table of recordkeeping requirements found in § 63.1211 (see 64 FR 53065). No substantive recordkeeping changes are made by this action; we are merely updating the table's references to other sections where the substantive recordkeeping requirements are lodged.
In the definitions section of the appendix to subpart EEE, the definition for a “rolling average” includes a sentence on continuous emissions monitoring systems (CEMS) other than carbon monoxide and total hydrocarbons CEMS. This sentence is unnecessary because we did not finalize other CEMS-based emission standards; therefore, we are removing this sentence from the appendix to subpart EEE.
The September 30, 1999 final rule moved the Notification of Intent to Comply (NIC) requirements from § 63.1211 to § 63.1210, but failed to revise the citation of § 63.1211 in § 270.42. We are correcting this citation in today's rule.
The rule lists information that must be included in the comprehensive performance test plan under § 63.1207(f)(1). Several stakeholders note, however, that the list is not complete. Several types of additional information that must be included in the comprehensive performance test plan were inadvertently omitted from the summary list in § 63.1207(f)(1). Accordingly, to avoid a misleading summary list, we are revising the summary list to include all information that various provisions of the rule require to be included in the comprehensive performance test plan.
We are revising the definition of a “responsible official” provided in § 63.1212(a)(2) of the final rule so that it conforms to the definition in the Clean Air Act implementing regulations of § 63.2. We did not intend to alter the statutory definition though § 63.1212(a)(2).
In the § 63.1201(a) definition of an automatic waste feed cutoff system, we incorrectly cited § 63.1206(c)(2)(viii) rather than § 63.1206(c)(3)(viii). In § 63.1210(c)(2), we incorrectly cited paragraph (b)(1) rather than (c)(1). In §§ 63.1212(b)(1) and (2), we incorrectly cited requirements for § 63.1206(a)(2) rather than § 63.1206(a)(3). These citations are corrected in today's action.
Table 1 to § 63.1200 (3) (see 64 FR 53038) provides an exemption from the requirements of subpart EEE if you burn certain wastes exempt from regulation under section 266; however, the exemption in the table incorrectly cites section 266.100(b). The correct cite is section 266.100(c). We revised the regulations at section 266.100 as part of the HWC MACT final rule, to include a new section 266.100(b) and inadvertently failed to revise the corresponding cite in Table 1 to reflect the change made to section 266.100. Today's action revises Table 1 to reflect the correct cite to section 266.100(c).
In the November 19, 1999 rule, the Agency amended § 63.1210(b)(1)(iv) by replacing the word “intent” with “intend” (see 64 FR 63212). However, the Agency inadvertently deleted the words “do not.” Today's rule reinstates the words “do not” before “intend” in § 63.1210(b)(1)(iv).
The June 19, 1998 (63 FR 33783) final rule establishing the comparable fuels exclusion allows the burning of comparable fuels and syngas fuels in certain combustion sources. We intended comparable fuels and syngas fuels to be burned only in those units capable of managing the excluded hazardous waste. Commenters noted that gas turbines are capable of managing and burning syngas fuels. However, we inadvertently excluded gas turbines from the list of approved comparable/syngas fuel burners. Today's action adds gas turbines to the list of approved comparable/syngas burners under § 261.38(c)(ii)(2).
The preamble to the September 30, 1999 rule states on page 52907 that if you use an emergency safety vent (ESV) in your system design, then you must develop and submit an ESV operating plan with the DOC and NOC. However, there are no requirements in § 63.1206(c)(4)(ii) for submitting the plan because we intended that an ESV operating plan must only be kept in the facility's operating record. The Agency wishes to clarify today that the preamble language requiring submittal of the plan with the DOC and NOC is incorrect and should be disregarded. The ESV operating plan need only be kept in the source's operating record.
In § 63.1209, paragraph (o)(3)(iv) requires owners/operators of combustion facilities using wet scrubbers to control hydrochloric acid and chlorine gas to establish a limit on the minimum pH on an hourly rolling average basis (see 64 FR 53062). However, the preamble states that the minimum pH must be established by a dual ten-minute and hourly rolling average (see 64 FR 52952). As several stakeholders pointed out, earlier in the preamble (64 FR 52920) the Agency concluded that, although there may be site-specific circumstances that warrant
On page 52958, we state that for compliance with the hydrochloric acid and chlorine standards, you must use Method 26A in 40 CFR part 60, appendix A. We also go on to say that we reject other methods for HCl and Cl
The September 30, 1999 rule states that a source must control combustion system leaks by: (1) Keeping the combustion zone sealed to prevent combustion system leaks; (2) maintaining the maximum combustion zone pressure lower than ambient pressure using an instantaneous monitor; or, (3) upon written approval of the Administrator, using an alternative means of control to provide control of combustion system leaks equivalent to maintenance of combustion pressure lower than ambient pressure (see § 63.1206(c)(5)). In our response to comments on the proposed rule (see US EPA, “Final Response to Comments to the Proposed HWC MACT Standards: Volume II,” July 1999) we incorrectly implied that it would be appropriate for a source to use a one-minute averaging period to comply with the provisions of option 2 above.
The Agency today clarifies that the response to comments language is incorrect. We considered the commenters' suggested approach of allowing the use of one-minute averaging periods to comply with option 2 (
Following promulgation of the September 30, 1999 rule, we received a number of questions regarding the applicability of subpart EEE to sources that operate, or are being constructed/reconstructed, at facilities previously subject to, or in possession of, a title V permit. These questions arise in response to the rule language of 40 CFR 63.1200 (a)(2) where we state that, “Both area sources and major sources, not previously subject to title V permitting, are immediately subject to the requirement to apply for and obtain a title V permit in all States, and in areas covered by part 71 of this chapter.” In today's correction document we are clarifying that the provisions of subpart EEE apply to each hazardous waste burning incinerator, cement kiln, and lightweight aggregate kiln individually firing hazardous waste on, or following, the effective date of the final rule (September 30, 1999).
Many stakeholders have expressed concern that the operator training and certification requirements under § 63.1206(c)(6) could be interpreted to require virtually every employee at the facility to pass a technical training and certification program equivalent to that of the American Society of Mechanical Engineers (ASME) QHO-1 program. These stakeholders note that a formal technical training and certification program is not necessary or appropriate for employees holding positions not related to the emissions control aspects of facilities operations—such as some of the administrative staff, quarry workers and raw material handlers.
We agree and are clarifying today that we neither intended the facility to subject all personnel to the training and certification program requirements nor intended the facility to establish a single training and certification program applicable to all categories of personnel whose activities may reasonably be expected to directly affect emissions of hazardous air pollutants. Instead, we contemplated a source having several programs suitable for each category of personnel, and that for control room operators and shift supervisors, the training and certification program would certainly be of a technical level similar to ASME QHO-1. For personnel whose activities may reasonably be expected to directly affect emissions, the certification may simply consist of documentation that they successfully completed a training program commensurate with the level of responsibility for the particular position. Personnel such as quarry operators, raw material workers, finished product handlers, some types of process monitoring operations, and much of the administrative staff whose activities are not expected to directly affect emissions of hazardous air pollutants from the source are exempted from the operator training and certification requirements of § 63.1206(c)(6).
Part 60, appendix A, Method 5i, section 12.2b includes a graduated precision criteria for eliminating imprecise data. Section 12.2a includes a simplified equation for calculating the precision criteria, called the Relative Standard Deviation, or RSD. The proposal to include a precision criteria in Method 5i was widely endorsed.
The precision criteria currently state that if the average of paired train data is greater than 10 mg/dscm, the resulting RSD must not be greater than 10%. At a paired train data average of 1 mg/dscm, the RSD must not be greater than 25%. Between 1 and 10 mg/dscm, the RSD is linearly scaled from 25 to 10% based on the actual mean value recorded. The method is silent about what the RSD is if the mean emissions are less than 1 mg/dscm.
We intended there to be no RSD criteria if the average emissions from the paired data trains is less than 1 mg/dscm. In other words, no precision criteria exist and all average results less than 1 mg/dscm are acceptable.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding, see Section I above, that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This technical correction action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
EPA is making this rule effective immediately. The rule adopts amendments which are purely technical in that they correct mistakes which are clearly inconsistent with the Agency's stated intent. This rule also clarifies ambiguities or errors in preamble statements to help stakeholders better understand the regulations themselves. Comment on such changes is unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B). For the same reasons, there is good cause to make the rule effective immediately pursuant to 5 U.S.C. 553 (d)(3).
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Ammonium sulfate plants, Batteries, Beverages, Carbon monoxide, Cement industry, Coal, Copper, Dry cleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, Glass and glass products, Grains, Graphic arts industry, Heaters, Household appliances, Insulation, Intergovernmental relations, Iron, Labeling, Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals, Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, Paper and paper products industry, Particulate matter, Paving and roofing materials, Petroleum, Phosphate, Plastics materials and synthetics, Polymers, Reporting and recordkeeping requirements, Sewage disposal, Steel, Sulfur oxides, Sulfuric acid plants, Tires, Urethane, Vinyl, Volatile organic compounds, Waste treatment and disposal, Zinc.
Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
Environmental protection, Comparable fuels, Syngas fuels, Excluded hazardous waste, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Reporting and recordkeeping requirements, Water pollution control, Water supply.
42 U.S.C. 7401, 7411, 7414, 7416, 7429, and 7601.
12.2 * * *
b. A minimum precision criteria for Reference Method PM data is that RSD for any data pair must be less than 10% as long as the mean PM concentration is greater than 10 mg/dscm. If the mean PM concentration is less than 10 mg/dscm higher RSD values are acceptable. At mean PM concentration of 1 mg/dscm acceptable RSD for paired trains is 25%. Between 1 and 10 mg/dscm acceptable RSD criteria should be linearly scaled from 25% to 10%. Pairs of manual method data exceeding these RSD criteria should be eliminated from the data set used to develop a PM CEMS correlation or to assess RCA. If the mean PM concentration is less than 1 mg/dscm, RSD does not apply and the mean result is acceptable.
42 U.S.C. 7401
(b) * * *
(a) * * *
(a) * * *
(3) Lead and cadmium in excess of 240 μg/dscm, combined emissions, corrected to 7 percent oxygen;
(4) Arsenic, beryllium, and chromium in excess of 97 μg/dscm, combined emissions, corrected to 7 percent oxygen;
(5) * * *
(i) Carbon monoxide in excess of 100 parts per million by volume, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis and corrected to 7 percent oxygen. If you elect to comply with this carbon monoxide standard rather than the hydrocarbon standard under paragraph (a)(5)(ii) of this section, you must also document that, during the destruction and removal efficiency (DRE) test runs or their equivalent as provided by § 63.1206(b)(7), hydrocarbons do not exceed 10 parts per million by volume during those runs, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis, corrected to 7 percent oxygen, and reported as propane; or
(b) * * *
(5) * * *
(i) Carbon monoxide in excess of 100 parts per million by volume, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis and corrected to 7 percent oxygen. If you elect to comply with this carbon monoxide standard rather than the hydrocarbon standard under paragraph (b)(5)(ii) of this section, you must also
(a) * * *
(5) * * *
(i) * * *
(A) Carbon monoxide in the by-pass duct or mid-kiln gas sampling system in excess of 100 parts per million by volume, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis and corrected to 7 percent oxygen. If you elect to comply with this carbon monoxide standard rather than the hydrocarbon standard under paragraph (a)(5)(i)(B) of this section, you must also document that, during the destruction and removal efficiency (DRE) test runs or their equivalent as provided by § 63.1206(b)(7), hydrocarbons in the by-pass duct or mid-kiln gas sampling system do not exceed 10 parts per million by volume during those runs, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis, corrected to 7 percent oxygen, and reported as propane; or
(ii) * * *
(B) Carbon monoxide in the main stack in excess of 100 parts per million by volume, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis and corrected to 7 percent oxygen. If you elect to comply with this carbon monoxide standard rather than the hydrocarbon standard under paragraph (a)(5)(ii)(A) of this section, you also must document that, during the destruction and removal efficiency (DRE) test runs or their equivalent as provided by § 63.1206(b)(7), hydrocarbons in the main stack do not exceed 20 parts per million by volume during those runs, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis, corrected to 7 percent oxygen, and reported as propane.
(b) * * *
(5) * * *
(i) * * *
(A) * * *
(
(a) * * *
(5) * * *
(i) Carbon monoxide in excess of 100 parts per million by volume, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis and corrected to 7 percent oxygen. If you elect to comply with this carbon monoxide standard rather than the hydrocarbon standard under paragraph (a)(5)(ii) of this section, you also must document that, during the destruction and removal efficiency (DRE) test runs or their equivalent as provided by § 63.1206(b)(7), hydrocarbons do not exceed 20 parts per million by volume during those runs, over an hourly rolling average (monitored continuously with a continuous emissions monitoring system), dry basis, corrected to 7 percent oxygen, and reported as propane; or
(b) * * *
(5)
(b) * * *
(5)
(C) * * *
(
(iii)
(c) * * *
(6)
(f) * * *
(1) * * *
(ii) * * *
(A) An identification of such organic hazardous air pollutants that are present in the feedstream, except that you need not analyze for organic hazardous air pollutants that would reasonably not be expected to be found in the feedstream. You must identify any constituents you exclude from analysis and explain the basis for excluding them. You must conduct the feedstream analysis according to § 63.1208(b)(8).;
(B) An approximate quantification of such identified organic hazardous air pollutants in the feedstreams, within the precision produced by the analytical procedures of § 63.1208(b)(8); and
(ix) A determination of the hazardous waste residence time as required by § 63.1206(b)(11);
(x) If you are requesting to extrapolate metal feedrate limits from comprehensive performance test levels under §§ 63.1209(l)(1)(i) or 63.1209(n)(2)(ii))(A):
(A) A description of the extrapolation methodology and rationale for how the approach ensures compliance with the emission standards;
(B) Documentation of the historical range of normal (
(C) Documentation that the level of spiking recommended during the performance test will mask sampling and analysis imprecision and inaccuracy to the extent that extrapolation of feedrates and emission rates from performance test data will be as accurate and precise as if full spiking were used;
(xi) If you do not continuously monitor regulated constituents in natural gas, process air feedstreams, and feedstreams from vapor recovery systems under § 63.1209(c)(5), you must include documentation of the expected levels of regulated constituents in those feedstreams;
(xii) Documentation justifying the duration of system conditioning required to ensure the combustor has achieved steady-state operations under performance test operating conditions, as provided by paragraph (g)(1)(iii) of this section;
(xiii) For cement kilns with in-line raw mills, if you elect to use the emissions averaging provision of § 63.1204(d), you must notify the Administrator of your intent in the initial (and subsequent) comprehensive performance test plan, and provide the information required under § 63.1204(d)(ii)(B).
(xiv) For preheater or preheater/precalciner cement kilns with dual stacks, if you elect to use the emissions averaging provision of § 63.1204(e), you must notify the Administrator of your intent in the initial (and subsequent) comprehensive performance test plan, and provide the information required under § 63.1204(e)(2)(iii)(A).
(xv) For incinerators and lightweight aggregate kilns equipped with a baghouse, you must submit the baghouse operation and maintenance plan required under § 63.1206(c)(7)(ii) with the initial comprehensive performance test plan.
(xvi) If you are not required to conduct performance testing to document compliance with the mercury, semivolatile metal, low volatile metal, or hydrochloric acid/chlorine gas emission standards under paragraph (m) of this section, you must include with the comprehensive performance test plan documentation of compliance with the provisions of that section.
(xvii) If you propose to use a surrogate for measuring or monitoring gas flowrate, you must document in the comprehensive performance test plan that the surrogate adequately correlates with gas flowrate, as required by paragraph (m)(7) of this section, and § 63.1209(j)(2), (k)(3), (m)(2)(i), (m)(5)(i), and (o)(2)(i).
(xviii) You must submit an application to request alternative monitoring under § 63.1209(g)(1) not later than with the comprehensive performance test plan, as required by § 63.1209(g)(1)(iii)(A).
(xix) You must document the temperature location measurement in the comprehensive performance test plan, as required by §§ 63.1209(j)(1)(i) and 63.1209(k)(2)(i).
(xx) If your source is equipped with activated carbon injection, you must document in the comprehensive performance test plan:
(A) The manufacturer specifications for minimum carrier fluid flowrate or pressure drop, as required by § 63.1209(k)(6)(ii); and
(B) Key parameters that affect carbon adsorption, and the operating limits you establish for those parameters based on the carbon used during the performance test, if you elect not to specify and use the brand and type of carbon used during the comprehensive performance test, as required by § 63.1209(k)(6)(iii).
(xxi) If your source is equipped with a carbon bed system, you must include in the comprehensive performance test plan:
(A) A recommended schedule for conducting a subsequent performance test to document compliance with the dioxin/furan and mercury emission standards if you use manufacturer specifications rather than actual bed age at the time of the test to establish the initial limit on bed age, as required by § 63.1209(k)(7)(i)(C); and
(B) Key parameters that affect carbon adsorption, and the operating limits you establish for those parameters based on the carbon used during the performance test, if you elect not to specify and use the brand and type of carbon used during the comprehensive performance test, as required by § 63.1209(k)(7)(ii).
(xxii) If you feed a dioxin/furan inhibitor into the combustion system, you must document in the comprehensive performance test plan key parameters that affect the effectiveness of the inhibitor, and the operating limits you establish for those parameters based on the inhibitor fed during the performance test, if you elect not to specify and use the brand and
(xxiii) If your source is equipped with a wet scrubber and you elect to monitor solids content of the scrubber liquid manually but believe that hourly monitoring of solids content is not warranted, you must support an alternative monitoring frequency in the comprehensive performance test plan, as required by § 63.1209(m)(1)(i)(B)(
(xxiv) If your source is equipped with a particulate matter control device other than a wet scrubber, baghouse, or electrostatic precipitator, you must include in the comprehensive performance test plan:
(A) Documentation to support the operating parameter limits you establish for the control device, as required by § 63.1209(m)(1)(iv)(A)(
(B) Support for the use of manufacturer specifications if you recommend such specifications in lieu of basing operating limits on performance test operating levels, as required by § 63.1209(m)(1)(iv)(D).
(xxv) If your source is equipped with a dry scrubber to control hydrochloric acid and chlorine gas, you must document in the comprehensive performance test plan key parameters that affect adsorption, and the limits you establish for those parameters based on the sorbent used during the performance test, if you elect not to specify and use the brand and type of sorbent used during the comprehensive performance test, as required by § 63.1209(o)(4)(iii)(A); and
(h) * * *
(2) Current operating parameter limits are also waived during pretesting prescribed in the approved test plan prior to comprehensive performance testing for an aggregate time not to exceed 720 hours of operation (renewable at the discretion of the Administrator). Pretesting means:
(j) * * *
(1) * * *
(i) Within 90 days of completion of a comprehensive performance test, you must postmark a Notification of Compliance documenting compliance or noncompliance with the emission standards and continuous monitoring system requirements, and identifying operating parameter limits under § 63.1209.
(a) * * *
(1)(i) You must use either a carbon monoxide or hydrocarbon CEMS to demonstrate and monitor compliance with the carbon monoxide and hydrocarbon standard under this subpart. You must also use an oxygen CEMS to continuously correct the carbon monoxide or hydrocarbon level to 7 percent oxygen.
(iii) You must install, calibrate, maintain, and operate a particulate matter CEMS to demonstrate and monitor compliance with the particulate matter standards under this subpart. However, compliance with the requirements in this section to install, calibrate, maintain and operate the PM CEMS is not required until such time that the Agency promulgates all performance specifications and operational requirements applicable to PM CEMS.
(6) * * *
(iii)
(b) * * *
(2) Except as specified in paragraphs (b)(2)(i) and (ii) of this section, you must install and operate continuous monitoring systems other than CEMS in conformance with § 63.8(c)(3) that requires you, at a minimum, to comply with the manufacturer's written specifications or recommendations for installation, operation, and calibration of the system:
(l) * * *
(1) Feedrate of total mercury. You must establish a 12-hour rolling average limit for the total feedrate of mercury in all feedstreams as the average of the test run averages, unless mercury feedrate limits are extrapolated from performance test feedrate levels under the following provisions.
(3) Activated carbon injection. If your combustor is equipped with an activated carbon injection system, you must establish operating parameter limits prescribed by paragraph (k)(6) of this section.
(4) Activated carbon bed. If your combustor is equipped with a carbon bed system, you must establish operating parameter limits prescribed by paragraph (k)(7) of this section.
(m) * * *
(3) Maximum ash feedrate. Owners and operators of hazardous waste incinerators must establish a maximum ash feedrate limit as the average of the test run averages.
(n) * * *
(2) * * *
(i) * * *
(A) You must establish a 12-hour rolling average limit for the feedrate of cadmium and lead, combined, in all feedstreams as the average of the test run averages;
(B) You must establish a 12-hour rolling average limit for the feedrate of arsenic, beryllium, and chromium, combined, in all feedstreams as the average of the test run averages; and
(C) You must establish a 12-hour rolling average limit for the feedrate of arsenic, beryllium, and chromium, combined, in all pumpable feedstreams as the average of the test run averages. Dual feedrate limits for both pumpable and total feedstreams are not required, however, if you base the total feedrate limit solely on the feedrate of pumpable feedstreams.
(4) Maximum total chlorine and chloride feedrate. You must establish a 12-hour rolling average limit for the feedrate of total chlorine and chloride in all feedstreams as the average of the test run averages.
(o) * * *
(1) Feedrate of total chlorine and chloride. You must establish a 12-hour rolling average limit for the total feedrate of chlorine (organic and inorganic) in all feedstreams as the average of the test run averages.
(b) * * *
(1) * * *
(iv) If you do not intend to comply, but will not stop burning hazardous waste by October 1, 2001, a certification that:
(c) * * *
(2) You must submit a summary of the meeting, along with the list of attendees and their addresses, developed under paragraph (c)(1) of this section, and copies of any written comments or materials submitted at the meeting, to the Administrator as part of the final NIC, in accordance with paragraph (b)(1)(iii) of this section.
(c) * * *
(a) * * *
(2) An authorized representative is the same as a “responsible official” as defined under § 63.2.
(b) * * *
(1) If you begin to burn hazardous waste after September 30, 1999 but prior to June 30, 2000 you must comply with the requirements of §§ 63.1206(a)(3), 63.1210(b) and (c), 63.1211(b), and paragraph (a) of this section, and associated time frames for public meetings and document submittals.
(2) If you intend to begin burning hazardous waste after June 30, 2000 you must comply with the requirements of §§ 63.1206(a)(3), 63.1210(b) and (c), 63.1211(b), and paragraph (a) of this section prior to burning hazardous waste. In addition:
1.1 Applicability. These quality assurance requirements are used to evaluate the effectiveness of quality control (QC) and quality assurance (QA) procedures and the quality of data produced by continuous emission monitoring systems (CEMS) that are used for determining compliance with the emission standards on a continuous basis as specified in the applicable regulation. The QA procedures specified by these requirements represent the minimum requirements necessary for the control and assessment of the quality of CEMS data used to demonstrate compliance with the emission standards provided under this subpart EEE of part 63. Owners and operators must meet these minimum requirements and are encouraged to develop and implement a more extensive QA program. These requirements supersede those found in part 60, Appendix F, of this chapter. Appendix F does not apply to hazardous waste-burning devices.
2.8 Rolling Average. The average emissions, based on some (specified) time period, calculated every minute from a one-minute average of four measurements taken at 15-second intervals.
6.5.1
Fifteen second observations must not be rounded or smoothed. Fifteen-second observations may be disregarded only as a result of a failure in the CEMS and allowed in the source's quality
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
(c) * * *
(2) * * *
(iv) Gas turbines used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale.
42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 6974.
(j) * * *
(1) Facility owners or operators must comply with the Notification of Intent to Comply (NIC) requirements of 40 CFR 63.1210(b) and (c) before a permit modification can be requested under this section.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final 2000 harvest specifications; technical amendment.
NMFS issues a technical amendment to the Final 2000 Harvest Specifications for Groundfish for the Bering Sea and Aleutian Islands (BSAI). A revision to Table 7 of the Final 2000 Harvest Specifications, which is prohibited species bycatch allowances for the BSAI trawl and non-trawl groundfish fisheries, is necessary to reflect reduced prohibited species bycatch allowances under Amendment 57 to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP).
Effective June 15, 2000, through 2400 hrs A.l.t. December 31, 2000.
Andrew N. Smoker, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the FMP prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The Council, at its December 1999 meeting, recommended that the Final 2000 Harvest Specifications include prohibited species bycatch allowances proportionally reduced to reflect reduced prohibited species catch (PSC) limits under pending Amendment 57. Because the Final Harvest Specifications for Groundfish of the BSAI (65 FR 8282, February 18, 2000) were issued prior to Amendment 57 being approved by NMFS and implemented by regulations, the specifications set forth prohibited species bycatch allowances for the BSAI trawl fisheries based on the following pre-FMP Amendment 57 PSC limits: Pacific halibut, 3,775 mt; Zone 1 red king crab, 100,000 animals;
Under the regulations implementing Amendment 57 to the FMP (65 FR 31105, May 16, 2000), which became effective June 15, 2000, the 2000 Pacific halibut and crab PSC limits for the BSAI trawl fisheries were reduced to the following amounts: Pacific halibut, 3,675 mt; Zone 1 red king crab, 97,000 animals;
This technical amendment revises Table 7 of the Final 2000 Harvest Specifications for Groundfish of the BSAI accordingly to read as follows:
Because this technical amendment merely revises a table in the specifications to reflect new allowances under a previous final rule, pursuant to 5 U.S.C. 5539(b)(B), the Assistant Administrator for Fisheries, NOAA, finds, for good cause, that it is unnecessary to provide prior notice and opportunity for public comment in that no useful purpose would be served.
In addition, because this is a non-substantive rule, under 5 U.S.C. 553(d), a 30-day delay in effectiveness is not required.
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 533, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
This action is required by § 679.20 and is exempt from review under E.O. 12866.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Request for comments.
We are considering several changes to the Animal Welfare regulations to promote the humane treatment of live animals used in research, testing, and teaching and to improve the quality of information we report to Congress concerning animal pain and distress. Specifically, we are considering adding a definition for the term “distress.” Although this term is used throughout the Animal Welfare regulations, it is not defined. The addition of such a definition would clarify what we consider to be “distress” and could help assist research facilities to recognize and minimize distress in animals in accordance with the Animal Welfare Act (AWA).
We are also considering replacing or modifying the system we use to classify animal pain and distress. Professional standards regarding the recognition and relief of animal pain and distress have changed significantly since we established our classification system. Some biomedical research professionals and animal welfare advocates believe our classification system is outdated and inadequate. A different categorization system could produce data that more accurately depict the nature of animal pain or distress and provide a better tool to measure efforts made to minimize animal pain and distress at research facilities.
We are soliciting public comments on the changes we are considering. We are also interested in obtaining information on specific pain and distress classification systems other than the one we now use.
We invite you to comment on this docket. We will consider all comments that we receive by September 8, 2000.
Please send your comment and three copies to: Docket No. 00-005-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.
Please state that your comment refers to Docket No. 00-005-1. You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Dr. Jodie Kulpa, Staff Veterinarian, AC, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234; (301) 734-7833.
Under the Animal Welfare Act (AWA) (7 U.S.C. 2131
We are soliciting comments on an approach, discussed below, for amending the regulations by defining “distress” in part 1 and by modifying or replacing the animal pain and distress classification system in part 2.
In the regulations, we define a “painful procedure” as any procedure that would reasonably be expected to cause more than slight or momentary pain or distress in a human being to which that procedure was applied. Although we use the term “distress” in this definition and elsewhere in the regulations, there is no definition for distress in the regulations. We are considering adding such a definition because of requests from the biomedical research community and animal advocacy groups. These parties have asked USDA to provide guidance on what is considered to be distress in a procedure involving research animals in order to improve recognition of animal distress, to classify and report it more accurately, and to create a heightened awareness of the regulations' requirement to minimize animal distress and pain.
Section 13(a)(7)(B) of the AWA requires research facilities to annually provide “information on procedures likely to produce pain or distress in any animal.” In accordance with the AWA, the regulations at § 2.36 require facilities that use or intend to use live animals for research, tests, experiments, or teaching to submit an annual report to the Animal Care Regional Director for the State where the facility is located. Among other things, the report must state the common names and the numbers of animals upon which teaching, experiments, research, surgery, or tests were conducted involving: (1) No pain, distress, or use of pain-relieving drugs; (2) accompanying pain or distress to the animals and for which appropriate anesthetic, analgesic, or tranquilizing drugs were used; and (3) accompanying pain or distress to the animals and for which the use of appropriate anesthetic, analgesic, or tranquilizing drugs would have adversely affected the procedures, results, or interpretation of the teaching, research, experiments, surgery, or tests.
To provide these data, each research facility must assess the potential for animal pain or distress associated with the proposed procedures. This assessment is performed prospectively (
There is no provision in the current classification system to address some areas identified by the research community and animal advocacy groups. For example, the current system does not include a means to report:
• An assessment of the relative intensity or duration of pain or distress either observed in the animal or anticipated to be experienced by the animal;
• An assessment of the anticipated or observed efficacy of the pain- or distress-relieving agent provided to animals undergoing a painful or distressful procedure;
• A distinction between procedures causing animal pain and procedures causing animal distress;
• Animals that were prevented from experiencing pain or distress by the appropriate and effective use of pain- or distress-relieving methods or procedures (
• Animals that did not experience pain or distress due to the appropriate and effective use of pain- or distress-relieving methods or procedures other than anesthetic, analgesic, or tranquilizing agents;
• Animals that experience unrelieved pain or distress for a reason other than that the use of anesthetic, analgesic, or tranquilizing drugs would have adversely affected the procedures, results, experiments, surgery, or tests; or
• Animals that experience pain or distress without having been used in a procedure (
We are aware of several alternative pain and distress classification systems. For example, the system adopted by the Canadian Council on Animal Care, “Categories of Invasiveness in Animal Experiments,” may be viewed on the Internet at http://www.ccac.ca/english/categ.htm. The system proposed by the Humane Society of the United States may be viewed on the Internet at http://hsus.org/programs/research/usda_proposed_scale.html.
Modifying the current USDA system, in lieu of replacing it, could also be an option. This could involve replacing or redefining the existing categories to:
• Separately report pain and distress;
• Quantify pain and distress intensity and duration;
• Separately classify anesthetized or otherwise treated animals undergoing potentially painful procedures but not experiencing pain or distress; or
• Modify the system in other ways.
We invite your comments on adding a definition for distress to the regulations and replacing or modifying our animal pain and distress classification system. We are particularly interested in soliciting comments addressing the following questions:
1. Would adding a definition for distress to the regulations help institutions using animals for research, testing, or teaching better recognize, minimize, and report animal distress?
2. If a definition for distress is added to the regulations, what key elements should be included in that definition?
3. What are the benefits and limitations of our pain and distress classification system?
4. Should our animal pain and distress classification system be modified or replaced? If so, what specific modifications or alternate classification systems should we consider?
5. Should animal pain and distress be prospectively or retrospectively reported?
Written comments should be submitted within the 60-day comment period specified in this document (see
This action has been reviewed under Executive Order 12866. The action has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).
Nuclear Regulatory Commission.
Petition for rulemaking; Notice of receipt.
The Nuclear Regulatory Commission (NRC) has received and requests public comment on a petition for rulemaking filed by the Union of Concerned Scientists (petitioner). The petition has been docketed by the Commission and has been assigned Docket No. PRM-54-1. The petitioner requests that the NRC regulations governing requirements for renewal of operating licenses for nuclear power plants be amended to address potential concerns about aging degradation of liquid and gaseous radioactive waste systems. The petitioner believes the degradation from aging of piping and components of liquid and gaseous radioactive waste systems at nuclear power facilities may result in an increased probability and/or consequences from design and licensing bases events.
Submit comments by September 25, 2000. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
Submit comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attention: Rulemaking and Adjudications staff.
Deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.
For a copy of the petition, write: David L. Meyer, Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Documents related to this action
You may also provide comments via the NRC's interactive rulemaking website through the NRC home page (
David L. Meyer, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-415-7162 or Toll Free: 1-800-368-5642 or E-mail: DLM1@NRC.GOV.
The Nuclear Regulatory Commission received a petition for rulemaking dated May 3, 2000, submitted by the Union of Concerned Scientists (petitioner). The petitioner requests that the regulations governing renewal of operating licenses for nuclear power plants in 10 CFR parts 51 and 54 be amended to address potential concerns relating to degradation through aging of piping and components of liquid and gaseous radioactive waste systems at operating nuclear power plants. This petition was included as part of a document in which the petitioner details concerns related to the review of the license renewal application submitted by the owner of the Hatch Nuclear Plant. Specifically, the petitioner is concerned that the license renewal application for the Hatch facility has not addressed deficiencies it believes exists in the aging management of the liquid and gaseous radioactive waste (radwaste) systems. The petitioner concludes that the requirements pertaining to renewal of operating licenses for nuclear power plants do not adequately address degradation from aging of liquid and gaseous radioactive waste systems. The petitioner requests that the regulations in 10 CFR part 51 and part 54 be amended to clarify that liquid and gaseous radioactive waste systems must be covered by aging management programs during license renewal periods.
The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition has been docketed as PRM-54-1. The NRC is soliciting public comment on the petition for rulemaking.
The petitioner states that in 10 CFR part 51, appendix B to subpart A, “Environmental Effect of Renewing the Operating License of a Nuclear Power Plant,” the NRC concluded that radiation exposures to the public and occupational exposures to workers during the license renewal term will continue at levels below regulatory limits. The petitioner believes that this conclusion is based on an assumption that the piping and components of the liquid and gaseous radioactive waste systems at nuclear power plants do not experience greater failure rates during the license renewal term.
Using the case of a recent license renewal application, the petitioner cites the Hatch Nuclear Plant as an example in contending that the plant is being operated outside its design and licensing bases because the material condition of piping and components of the liquid (Contention No. 1) and gaseous (Contention No. 2) radioactive waste systems are not being properly inspected and maintained. In its request for a generic communication by the NRC to all nuclear power plant owners about potential aging degradation of liquid and gaseous radioactive waste systems, the petitioner indicates that the Millstone facility received an Information Notice in 1979 regarding liquid radwaste system problems that the petitioner believes was ignored. The petitioner notes that in 1996 the Millstone facility received another Information Notice also regarding degradation problems with the liquid radwaste system.
The petitioner believes that from its review of the license renewal applications submitted by the owners of the Calvert Cliffs, Oconee, and Hatch facilities, it appears that 10 CFR 54.4(a)(1)(iii) has been interpreted to exclude the liquid and gaseous radioactive waste systems from aging management consideration. The petitioner requests that NRC amend 10 CFR parts 51 and 54 to clarify that the liquid and gaseous radioactive waste systems must be covered by aging management programs during the license renewal term. The petitioner believes that regulations imposing aging management for these systems are necessary to ensure that these systems do not experience greater failure rates that could result in an increased probability and/or consequences from design bases events.
The petitioner has concluded that the NRC requirements governing renewal of operating licenses of nuclear power facilities do not adequately address degradation that may result from aging of liquid and gaseous radioactive waste systems. The petitioner has also concluded that the degradation by aging of these systems may result in an increased probability of adverse consequences from design and licensing bases events. The petitioner requests that the regulations in 10 CFR part 54 and part 51, if appropriate, be amended to clarify that liquid and gaseous radwaste systems must be covered by aging management programs during the license renewal term of an operating nuclear power facility.
For the Nuclear Regulatory Commission.
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 Boeing Model 767 series airplanes powered by Pratt & Whitney engines. This proposal would require modification of the nacelle strut and wing structure. This action is necessary to prevent fatigue cracking in primary
Comments must be received by August 24, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-365-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. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 99-NM-365-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
James Rehrl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Transport Airplane Directorate, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2783; fax (425) 227-1181.
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.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-365-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-365-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports indicating that the airplane manufacturer has accomplished a structural reassessment of the damage tolerance capabilities of the Boeing Model 767 series airplane powered by Pratt & Whitney engines. This reassessment indicates that the actual operational loads applied to the nacelle strut and wing structure are higher than the analytical loads that were used during the initial design. Subsequent analysis and service history, which includes numerous reports of fatigue cracking on certain strut and wing structure, indicate that fatigue cracking can occur on the primary strut structure before an airplane reaches its design service objective of 20 years or 50,000 flight cycles. Analysis also indicates that such cracking, if it were to occur, would grow at a much greater rate than originally expected. Fatigue cracking in primary strut structure would result in reduced structural integrity of the strut.
This proposed AD is related to AD 94-11-02, amendment 39-8918 (59 FR 27229, May 26, 1994), which is applicable to all Boeing Model 767 series airplanes, and requires repetitive detailed visual and eddy current inspections to detect cracks of certain midspar fuse pins, and replacement of any cracked midspar fuse pin with a new fuse pin.
This proposed AD also is related to AD 99-07-06, amendment 39-11091 (64 FR 14578, March 26, 1999), which is applicable to certain Boeing Model 767 series airplanes, and requires repetitive inspections to detect cracking or damage of the forward and aft lugs of the diagonal brace of the nacelle strut, and follow-on actions, if necessary.
Accomplishment of the actions required by this AD would terminate the repetitive inspections required by AD 94-11-02 and AD 99-07-06.
Boeing recently has developed a modification of the strut-to-wing attachment structure installed on Model 767 series airplanes powered by Pratt & Whitney engines. This modification significantly improves the load-carrying capability and durability of the strut-to-wing attachments. Such improvement also will substantially reduce the possibility of fatigue cracking and corrosion developing in the attachment assembly.
The FAA has reviewed and approved Boeing Service Bulletin 767-54-0080, dated October 7, 1999, which describes procedures for modification of the nacelle strut and wing structure. The modification consists of replacing many of the significant load-bearing components of the strut (
The service bulletin contains a formula for calculating an optional compliance threshold for the specified modification. This formula is intended to be used as an alternative to the 20-year calendar threshold specified in the service bulletin.
In addition, Table 2 of the service bulletin also identifies six related service bulletin modifications that must be accomplished before or at the same time as the modification specified in Boeing Service Bulletin 767-54-0080:
•
•
•
•
•
•
Accomplishment of the actions specified in the service bulletins 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, except as discussed below.
Operators should note that, although Boeing Service Bulletin 767-54-0080 specifies that the manufacturer may be contacted for disposition of certain damage conditions that may be detected during accomplishment of the modification, this proposal would require the repair of those conditions to be accomplished in accordance with a method approved by the FAA.
There are approximately 233 airplanes of the affected design in the worldwide fleet. The FAA estimates that 76 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 708 work hours per airplane to accomplish the proposed modification of the nacelle strut and wing structure described in Boeing Service Bulletin 767-54-0080, at an average labor rate of $60 per work hour. Required parts would be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $3,228,480, or $42,480 per airplane.
It would take approximately 106 work hours per airplane to accomplish the actions described in Boeing Service Bulletin 767-53-0069, Revision 1, at an average labor rate of $60 per work hour. Required parts would be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these proposed actions on U.S. operators is estimated to be $483,360, or $6,360 per airplane.
It would take approximately 1 work hour per airplane to accomplish the actions described in Boeing Service Bulletin 767-54-0083, at an average labor rate of $60 per work hour. Required parts would be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these proposed actions on U.S. operators is estimated to be $4,560, or $60 per airplane.
It would take approximately 2 work hours per airplane to accomplish the actions described in Boeing Service Bulletin 767-54-0088, Revision 1, at an average labor rate of $60 per work hour. Required parts would be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these proposed actions on U.S. operators is estimated to be $9,120, or $120 per airplane.
It would take approximately 20 work hours per airplane to accomplish the proposed actions described in Boeing Service Bulletin 767-54A0094, Revision 1, at an average labor rate of $60 per work hour. Required parts would be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these proposed actions on U.S. operators is estimated to be $91,200, or $1,200 per airplane.
It would take approximately 5 work hours per airplane to accomplish the proposed actions described in Boeing Service Bulletin 767-57-0053, Revision 2, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these proposed actions on U.S. operators is estimated to be $22,800, or $300 per airplane.
It would take approximately 16 work hours per airplane to accomplish the proposed actions described in Boeing Service Bulletin 767-29-0057, at an average labor rate of $60 per work hour. Required parts would be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these proposed actions on U.S. operators is estimated to be $72,960, or $960 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 proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities
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:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
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 (d) 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 fatigue cracking in primary strut structure and consequent reduced structural integrity of the strut, accomplish the following:
(a) When the airplane has reached the flight cycle threshold as defined by the flight cycle threshold formula on page 67 of Boeing Service Bulletin 767-54-0080, dated October 7, 1999, or within 20 years since the date of manufacture, whichever occurs first: Modify the nacelle strut and wing structure on both the left and right sides of the airplane, in accordance with the service bulletin. Use of the flight cycle threshold formula described on page 67 of the service bulletin is an acceptable alternative to the 20-year threshold, provided the conditions described in paragraphs 1 and 2 of page 67 have been met.
(b) Prior to or concurrently with the accomplishment of the modification of the nacelle strut and wing structure required by paragraph (a) of this AD; as specified in paragraph 1.D., Table 2, on page 8 of Boeing Service Bulletin 767-54-0080, dated October 7, 1999; accomplish the actions specified in Boeing Service Bulletins 767-53-0069, Revision 1, dated January 29, 1998; 767-54-0083, dated September 17, 1998; 767-54-0088, Revision 1, dated July 29, 1999; 767-54A0094, Revision 1, dated September 16, 1999; 767-57-0053, Revision 2, dated September 23, 1999; and 767-29-0057, dated December 16, 1993, including Notice of Status Change NSC 1, dated November 23, 1994; as applicable; in accordance with those service bulletins. Accomplishment of this paragraph constitutes terminating action for the repetitive inspections required by AD 94-11-02, amendment 39-8918, and AD 99-07-06, amendment 39-11091.
Paragraph (b) of this AD specifies prior or concurrent accomplishment of Boeing Service Bulletin 767-57-0053, Revision 2, dated September 23, 1999; however, Table 2, on page 8 of Boeing Service Bulletin 767-54-0080, dated October 7, 1999, specifies prior or concurrent accomplishment of the original issue of the service bulletin. Therefore, accomplishment of the applicable actions specified in Boeing Service Bulletin 767-57-0053, dated June 27, 1996, or Revision 1, dated October 31, 1996, prior to the effective date of this AD, is considered acceptable for compliance with the actions required by paragraph (b) of this AD.
(c) If any damage to airplane structure is found during the accomplishment of the modification required by paragraph (a) of this AD; and the service bulletin specifies to contact Boeing for appropriate action: Prior to further flight, repair in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the Manager's approval letter must specifically reference this AD.
(d) 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, Seattle ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(e) 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.
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office is proposing to amend the rules of practice to provide for the replacement of application and patent files that cannot be located after a reasonable search. This change is designed to expedite the process of application and patent file reconstruction to minimize the processing or examination delays resulting when the Office cannot locate an application or patent file after a reasonable search.
Comments should be sent by electronic mail message over the Internet addressed to: reconstruct.comments@uspto.gov. Comments may also be submitted by mail addressed to: Box Comments—Patents, Commissioner for Patents, Washington, DC 20231; or by facsimile to (703) 872-9411, marked to the attention of Robert W. Bahr. Although comments may be submitted by mail or facsimile, the Office prefers to receive comments via the Internet. If comments are submitted by mail, the Office would prefer that the comments be submitted on a DOS formatted 3
The comments will be available for public inspection at the Office of Patent
Robert W. Bahr by telephone at (703) 308-6906, or by mail addressed to: Box Comments—Patents, Commissioner for Patents, Washington, DC 20231, or by facsimile to (703) 872-9411, marked to the attention of Robert W. Bahr.
Over 330,000 patent applications (provisional and nonprovisional) were filed in the United States Patent and Trademark Office (Office) in fiscal year 1999. On occasion, an application or patent file cannot be located.
When an application or patent file cannot be located after a reasonable search and the application or patent file is necessary to conduct business before the Office, the Office will “reconstruct” the application or patent file. This involves placing a duplicate of the original application papers and duplicates of all of the correspondence between the Office and applicant or patentee in a new file wrapper. The Office currently (since the spring of 1997) uses its Patent Application Capture and Review (PACR) system to image scan the application papers submitted on the filing date of the application (except for any appendix or information disclosure statement) and to create an electronic database (PACR database) containing the Office's archival record of the original application papers (application papers were microfilmed prior to the spring of 1997). Thus, the Office can obtain a copy of the original application papers from its archival PACR database (or microfilm records). The Office, however, does not possess a duplicate copy of subsequent correspondence from the applicant or patentee (
In a pending application, the request that applicant provide a copy of (or produce) his or her record of the correspondence between the Office and the applicant does not, under current practice, require a reply within any set time period. This adds to the delay in processing and examination resulting from the inability to locate the application. To expedite the process of reconstructing the file of an application or patent file, the Office is proposing to amend the rules of practice to provide that the Office will now set a time period within which applicant or patentee must either provide a complete copy of his or her record of the correspondence between the Office and the applicant or patentee, or produce his or her record of the correspondence between the Office and the applicant or patentee for the Office to copy. Since it is axiomatic that the Office cannot continue to examine an application that it does not have a complete copy of, the failure to timely provide a copy of (or produce) his or her record of the correspondence between the Office and the applicant in a pending application will result in abandonment of the application.
Corresponding with an applicant or patentee in an abandoned application or patent is often difficult because address information is often not kept up-to-date in abandoned applications and patents. There are many good reasons for keeping correspondence information up-to-date in an abandoned application or patent. Some examples follow: Patent applicants and patent owners should keep the correspondence address and any fee address for the patent up-to-date to ensure that correspondence is mailed to applicant's or patentee's current address. In an abandoned application, the Office may attempt to communicate with applicant regarding a petition for access. If the address has not been updated, then the Office may not be able to consider applicant's views in deciding whether to release the application to a member of the public. The Customer Number Practice described in section 403 of the Manual of Patent Examining Procedure (7th ed. 1998) (Rev. 1, Feb. 2000)(MPEP) provides a procedure where a patent applicant or owner can easily change the correspondence address for a number of patents or patent applications. In addition, the “Fee Address” Indication Form (PTO/SB/47) (reproduced at MPEP 2595) enables a patent owner to complete one form to designate a single fee address for any number of patents or applications in which the issue fee has been paid.
When changing the address(es) associated with a patent, the patent owner should bear in mind that the Office has a number of addresses related to the patent: (1) An application correspondence address; (2) the return address for the assignment documents; and (3) the fee address for maintenance fee purposes.
The Office is planning for full electronic submission of applications and related documents by fiscal year 2003. Once the Office is able to transition to a total Electronic File Wrapper environment, the inability to locate a paper application file (and the consequent need for the Office to obtain a copy of applicant's or patentee's record of the correspondence between the Office and the applicant or patentee) should no longer be a significant issue. However, this rule change is necessary to provide for the replacement of unlocatable application and patent files until the Office has completely transitioned to a total Electronic File Wrapper environment.
Title 37 of the Code of Federal Regulations, Part 1 is proposed to be amended as follows:
Section 1.251 is proposed to be added to set forth a procedure for the reconstruction of the file of a patent application, patent, or other patent-related proceeding that cannot be located after a reasonable search.
Section 1.251(a) provides that in the event the Office cannot locate the file of an application, patent, or other patent-related proceeding after a reasonable search, the Office will notify the
Section 1.251(b) provides that if an applicant or patentee has been given notice under § 1.251(a) that the Office cannot locate the file of a patent, application, or other patent-related proceeding after a reasonable search, applicant or patentee must do one of the following within the time period set in the notice: (1) Provide a copy of his or her record of all of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding, a list of such correspondence, and a statement that the copy is a complete and accurate copy of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding; or (2) produce his or her record of all of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding for the Office to copy, and provide a statement that the papers are a complete and accurate record of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding. Any appendix or information disclosure statement submitted with an application is not contained in the Office's archival PACR database; therefore, the applicant or patentee must also provide a copy of any appendix or information disclosure statement submitted with the application.
Section 1.251(b) also provides for the situation in which an applicant or patentee does not possess a complete copy of the correspondence between the Office and the applicant or patentee. In such a situation, the applicant or patentee must provide: (1) A copy of his or her record (if any) of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding; (2) a list of such correspondence; and (3) a statement that applicant or patentee does not possess a complete copy of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding and that the copy is a complete and accurate copy of his or her record of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding.
Thus, if the applicant or patentee possesses some (but not all) of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding, the applicant or patentee is to reply by providing a copy of all the correspondence contained in applicant's or patentee's records. If applicant or patentee does not possess any record of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding, the applicant or patentee is to reply with a statement to that effect.
Section 1.251(c) provides that with regard to a pending application, the failure to provide a timely reply to such a notice will result in abandonment of the application.
As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), an initial regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601
This notice does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (August 4, 1999).
This notice has been determined to be not significant for purposes of Executive Order 12866 (September 30, 1993).
This notice involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title, description, and respondent description of this information collection is shown below with an estimate of the annual reporting burdens. Included in the estimate is the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information. The principal impact of the changes in this notice is to set forth the procedures for obtaining a copy of applicant's or patentee's record of the correspondence between the Office and the applicant or patentee for an application, patent, or other proceeding when necessary to reconstruct the file of such application, patent, or other proceeding.
Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to Robert J. Spar, Director, Office of Patent Legal Administration, United States Patent and Trademark Office, Washington, D.C. 20231, or to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, N.W., Washington, D.C. 20503 (Attn: Desk Officer for the United States Patent and Trademark Office).
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the
Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and record keeping requirements, Small Businesses.
For the reasons set forth in the preamble, 37 CFR part 1 is proposed to be amended as follows:
1. The authority citation for 37 CFR part 1 continues to read as follows:
35 U.S.C. 2(b)(2).
2. Section 1.251 is added immediately following § 1.248 to read as follows:
(a) In the event that the Office cannot locate the file of an application, patent, or other patent-related proceeding after a reasonable search, the Office will notify the applicant or patentee and set a time period within which the applicant or patentee must comply with one of paragraphs (b)(1), (b)(2), or (b)(3) of this section.
(b) If an applicant or patentee has been given notice under paragraph (a) of this section that the Office cannot locate the file of a patent, application, or other patent-related proceeding after a reasonable search, applicant or patentee must do one of the following within the time period set in the notice:
(1) Provide a copy of the applicant's or patentee's record of all of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding, a list of such correspondence, and a statement that the copy is a complete and accurate copy of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding;
(2) Produce the applicant's or patentee's record of all of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding for the Office to copy, and provide a statement that the copy is a complete and accurate copy of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding; or
(3) If applicant or patentee does not possess a complete copy of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding, provide a copy of the applicant's or patentee's record (if any) of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding, a list of such correspondence, and a statement that applicant or patentee does not possess a complete copy of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding and that the copy provided is a complete and accurate copy of applicant's or patentee's record of the correspondence between the Office and the applicant or patentee for such application, patent, or other proceeding.
(c) With regard to a pending application, failure to timely comply with one of paragraphs (b)(1), (b)(2), or (b)(3) of this section will result in abandonment of the application.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve negative declarations submitted by the States of New Hampshire, Rhode Island, and Vermont for aerospace coating operations. In the Final Rules section of this
Written comments must be received on or before August 9, 2000.
Comments may be mailed to David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. Environmental Protection Agency, EPA New England, One Congress Street, Suite 1100, Boston, MA 02114-2023. Copies of the States submittals are available for public inspection during normal business hours, by appointment at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England, One Congress Street, 11th floor, Boston, MA 02114-2023. Copies of New Hampshire's submittal are also available at Air Resources Division, Department of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095. Copies of Rhode Island's submittal are also available at Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, RI 02908-5767. Copies of Vermont's submittal are also available Air Pollution Control Division, Agency of Natural Resources, Building 3 South, 103 South Main Street, Waterbury, VT 05676.
Anne E. Arnold, (617) 918-1047.
For additional information, see the direct final rule which is located in the Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a maintenance plan and redesignation of Cuyahoga and Jefferson Counties, Ohio, to attainment for particulate matter, specifically for particles known as PM
This action reflects parallel processing of Ohio's request. Ohio has proposed to request redesignation of the above two counties. Ohio held a hearing on its proposed request on June 12, 2000, and anticipates making a final request for redesignation shortly thereafter. Since Ohio's final redesignation request will likely be similar to its proposed request, EPA is proposing approval action on Ohio's request. If the final request differs significantly from the proposed request, EPA will repropose action on the request. Otherwise, EPA anticipates proceeding directly to final action.
Written comments on this proposed rule must arrive on or before August 9, 2000.
Send comments to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal are available for inspection at the following address: (We recommend that you telephone John Summerhays at (312) 886-6067, before visiting the Region 5 Office.)
John Summerhays, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6067.
This supplemental information section is organized as follows:
Ohio's letter of May 22, 2000, requests rulemaking on redesignation of Cuyahoga and Jefferson Counties from nonattainment to attainment for PM
EPA has issued a variety of relevant guidance. The most relevant guidance on redesignations is given in a September 4, 1992, memorandum issued by the Director of EPA's Office of Air Quality Planning and Standards. Guidance relevant to the evaluation of monitoring data is given in Appendix K of Title 40 Code of Federal Regulations Part 50 (40 CFR 50). Guidance relevant to maintenance plan review is included in the September 4, 1992, memorandum.
At issue in this rulemaking are designations promulgated on November 6, 1991, based on the PM
The September 4, 1992 guidance recommends evaluating three years of representative monitoring data. Ohio monitors PM
For Cuyahoga County, Ohio's submittal includes information from eight monitoring sites, six of which are located in the central part of Cleveland where emissions are highest and the highest concentrations are expected. Ohio provided data for the most recent three years,
The monitoring site in Cuyahoga that has been most likely to exceed air quality standards is site number 39-035-0013, at 2785 Broadway. During 1997 to 1999, this site recorded concentrations above the 24-hour average standard of 150 μg/m
The other monitoring site with a measured exceedance is site number 39-035-0060, at East 14th Street and Orange Avenue. This site has two operating instruments: a high volume sampler which collects samples once every six days, and a continuous instrument which operates every day. This site is 1 kilometer from the 2785 Broadway site.
One exceedance of 150 μg/m
Further justification for exempting the 14th and Orange site from evaluation of expected exceedances for days lacking high volume sampler data is the availability of daily concentration measurements by another instrument at the same site. Data from this other instrument support EPA's belief that the likelihood of measured exceedances at this location is low and that the percentage of high volume samples found to exceed the standard (one day among 14 samples for the first quarter of 1999) overstates the actual likelihood of exceedances at this location.
The two instruments at this site use different methods, but both methods give valid indication of whether an exceedance of the standard has occurred. Conceptually, one could evaluate the data from the two instruments on a day-by-day basis to assess the number of days that are above or below the standard at this location and the number of days for which the air quality there is unknown. Of the 90 days in the first quarter of 1999, 74 days had only continuous sampler data, 13 days had both high volume sampler data and continuous sampler data, 1 day had only high volume sampler data, and 2 days had no data. For the 74 days with only continuous sampler data, all days were below the level of the standard; in fact, all days had concentrations below 80 μg/m
For the Steubenville area, the assessment must address air quality in the West Virginia as well as the Ohio portion of the area. Although this rulemaking only addresses the Ohio portion of the area, the first requirement is that the entire area meet the air quality standard. Therefore, the analysis of Steubenville area air quality addressed the one monitor in Follansbee, West Virginia, as well as the five monitoring locations in Jefferson County, Ohio. Monitors at all six locations have recorded no 24-hour average values above 150 μg/m
Beginning in 1998, Ohio has taken less frequent samples at some sites. EPA concurred with this change, concluding on the basis of prior data that the reduced sampling frequency would provide sufficient data to evaluate the area's attainment status. EPA believes the data are adequate to conclude that all portions of the Steubenville area are attaining both the 24-hour and the annual average standards.
In summary, Cuyahoga County has recorded no recent exceedances of the annual standard, no exceedances of the 24-hour standard at six of eight sites, and below the acceptable 1.0 expected exceedances of the 24-hour standard at the other two sites. The Steubenville area has recorded no recent exceedances of either PM
EPA approved most of Ohio's particulate matter regulations on May 27, 1994, at 59 FR 27464. This rulemaking approved numerous statewide regulations as well as rules for Cuyahoga and Jefferson Counties. Nevertheless, EPA concluded that Ohio had not satisfied selected requirements. Ohio provided a supplemental submittal to EPA on November 3, 1995. On June 12, 1996, at 61 FR 29662, EPA concluded that Ohio had satisfied all requirements for both Cuyahoga and Jefferson Counties. Although EPA is not rulemaking on redesignation of the West Virginia portion of the Steubenville area, EPA approved the companion plan for West Virginia's portion of the area on November 15, 1996, at 61 FR 58481. Ohio's and West Virginia's plans were developed jointly and include the same attainment strategy. Thus, with respect to redesignation of the Ohio portion of the Steubenville area, EPA has approved Ohio's portion of a collectively accepted and approved plan for assuring attainment in this area.
Ohio's plan requires permanent emission reductions at a wide range of facilities. The emission reductions include installation of air pollution control equipment to capture and control particulate matter that was previously emitted. The reductions also include required efforts to reduce emissions from plant roadways and storage piles. These reductions have led to these counties now attaining the standards.
Ohio's maintenance plans for Cuyahoga County and the Steubenville area consist mainly of the emission limits in the attainment plan noted above that EPA approved in 1996. That plan included an inventory of maximum allowable emissions from the most significant sources of particulate matter emissions in these areas, and demonstrated that the areas would
Ohio provided census information indicating a declining population in Cuyahoga and Jefferson Counties. This indicates that the minor source types not regulated in Ohio's rules will likely have declining emissions. Ohio also notes the expected decline in diesel emissions as cleaner new vehicles required by EPA regulations come to replace dirtier older vehicles. These declines can be expected to continue throughout the 10 years that must be included in maintenance plans. Ohio also noted that coke oven emissions have declined and will remain below SIP levels due to EPA regulations requiring maximum achievable control technology. Therefore, EPA concludes that Ohio's maintenance plan provides adequate assurance that the particulate matter standards will continue to be attained in Cuyahoga County and the Steubenville area.
Maintenance plans must include contingency measures in case the areas have problems staying below the air quality standards. Ohio has contingency measures in conjunction with its attainment plan that EPA approved on May 6, 1996, at 61 FR 20142. These measures have air quality triggers that are independent of attainment status, so they are also valid contingency measures for maintenance purposes.
Maintenance plans further must include commitments to continued air quality monitoring and to submittal of a reassessment of maintenance in 8 years. Ohio's monitoring plan is part of its SIP and must continue to be implemented to continue to satisfy section 110 of the Clean Air Act. Ohio's maintenance plan is in most respects a permanent maintenance plan, but EPA expects Ohio to reassess its maintenance plan in 8 years if the relevant standard is still in effect at that time.
The rulemaking on Ohio's particulate matter plan cited above, published on June 12, 1996, at 61 FR 29662, concludes that Ohio has met the requirements of Section 110 and Part D with respect to particulate matter planning in Cuyahoga and Jefferson Counties.
Cuyahoga and Jefferson Counties in Ohio are currently designated nonattainment for the PM
Clean Air Act section 107(d)(3)(E) identifies five prerequisites for redesignation of areas from nonattainment to attainment. EPA proposes to conclude that these criteria are met with respect to PM
For the Steubenville area, EPA is today proposing action only on the Ohio portion of this area. This approach is for administrative convenience and in no way signifies any splitting of the area into separate air quality planning areas. EPA's action today reflects a review of the air quality for the full Steubenville area as well as Ohio's fulfillment of its portion of an attainment plan that Ohio and West Virginia jointly developed. This administrative approach is the same as the administrative approach used in rulemaking on the attainment plan, in which separate Ohio versus West Virginia rulemaking was based on fulfillment by each State of its share of a jointly developed area-wide plan. EPA has not yet received a redesignation request for the West Virginia portion of the Steubenville area. EPA anticipates receiving and rulemaking on such a request in the near future. In the future, if the standard is violated in either portion of the area, such that redesignation back to nonattainment is warranted, EPA will reinstate nonattainment status for the entire area.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects 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 proposed 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 action being proposed 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 proposes to approve a change that the State requested in the attainment status of two areas, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order 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.
The action being proposed will not have a significant impact on a substantial number of small entities because redesignations under section 107 of the Clean Air Act do not create any new requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Under sections 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 costs to State, local, or tribal governments in the aggregate; or to the 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 proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve a change in the attainment status of two areas, 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, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to revise critical habitat for the Cape Sable seaside sparrow (
The finding announced in this notice was made on June 21, 2000. Send your comments and materials to reach us on or before September 8, 2000. We may not consider comments received after the above date in making our decision for the 12-month finding.
If you wish to comment, you may submit your comments by any one of several methods. You may mail or hand-deliver comments to the Field Supervisor, U.S. Fish and Wildlife Service, 1360 U.S. Hwy 1, Suite 5, Vero Beach, Florida 32961. You may also comment via the Internet to heather_mcsharry@fws.gov. See Supplementary Information for comment procedures.
Mr. Jay Slack at 561/562-3909, extension 234.
Section 4(b)(3)(D)(i) of the Act and our listing regulations (50 CFR 424.14 (c)(1)) require that we make a finding on whether a petition to revise critical habitat of a species presents substantial scientific or commercial information to demonstrate that the petitioned action may be warranted. We are to base this finding on all information available to us at the time the finding is made. To the maximum extent practicable, we are to make this finding within 90 days of the date we received the petition, and we are to publish the finding promptly in the
On October 22, 1999, we published Listing Priority Guidance for Fiscal Year 2000 (64 FR 57114). The guidance clarifies the order in which we will process rulemakings, giving highest priority to processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is the processing of final determinations on proposed additions
On August 26, 1999, the Biodiversity Legal Foundation submitted a petition to us to revise the critical habitat designation for the Cape Sable seaside sparrow. We received the petition on August 31, 1999. On September 29, 1999, we sent a letter to Mr. Sidney B. Maddock, Biodiversity Legal Foundation, acknowledging receipt of the petition.
The petition requested that critical habitat be revised for the Cape Sable seaside sparrow. The petitioner stated that the current designated critical habitat for the Cape Sable seaside sparrow is now inadequate and that part of the critical habitat has been destroyed by conversion to agricultural use. The petitioner asserted that substantial scientific evidence supports designation of marl prairie areas (short-to moderate-hydroperiod areas supporting sparse, clumped vegetation and producing marl soils) historically occupied by the western subpopulation of the sparrow as critical habitat and removal of privately owned agricultural areas from the critical habitat designation. This scientific information, gathered since the listing of the species, indicates that currently designated critical habitat encompassing the marl prairie areas historically occupied by the eastern subpopulations of the sparrow should also include the marl prairie areas historically occupied by the western subpopulation of the sparrow. As part of conservation of the sparrow, protection and management of the western subpopulation habitat area is essential to ensuring the continued existence of the species. The petitioner further asserted that the current designation of critical habitat does not include a detailed discussion of the constituent elements and special management considerations necessary for conservation of the species, as required by the Endangered Species Act, and that sufficient scientific evidence is now available to describe these constituent elements and any special management considerations and protection measures. The petitioner did not provide specific locations for areas to be included in or removed from the critical habitat, but referred to marl prairie areas historically occupied by the western subpopulation of the Cape Sable seaside sparrow and privately owned habitat areas that had been converted to agricultural use.
Since the listing of the Cape Sable seaside sparrow, we have been funding scientific studies and otherwise seeking and soliciting information regarding its status, life-history, and ecology. We also have participated in and funded conservation efforts including habitat protection and management. These efforts have expanded and refined our knowledge about critical habitat for the Cape Sable seaside sparrow. We have conducted numerous section 7 consultations concerning the effects of land and water management plans on the Cape Sable seaside sparrow. Research and monitoring required for these consultations has also contributed to our database regarding critical habitat.
In 1998 we issued a draft revised recovery plan for the sparrow as part of the draft Multi-Species Recovery Plan (MSRP) for South Florida. This document provides a detailed justification for the need to review and redesignate critical habitat. We state in the document that critical habitat, as designated, does not adequately account for the distribution of the present-day core subpopulations, or the areas necessary for the birds to maintain a stable population. An important area west of Shark River Slough, which until 1993 supported one of two critical subpopulations (nearly half of the entire population), is not included within the designation and has been undergoing detrimental changes in habitat structure as a result of water management practices. Additionally, other parts of the designated critical habitat have been converted to agriculture and are no longer occupied by sparrows. Thus, the extent of the critical habitat requires significant review and redesignation. We also state that when we redesignate critical habitat, the constituent elements must be defined. We included a specific task in the draft MSRP that called for a review and revision of the current critical habitat designation based on distribution surveys.
We have reviewed the petition, the information provided in the petition, other literature, and information available in our files. The petition includes much of the information already present in our files. Available information and data indicate that marl prairies along the western flank of Shark River Slough may be essential to the survival and recovery of the Cape Sable seaside sparrow. Therefore, based on the best scientific and commercial information available, we find the petition presents substantial information that revision of critical habitat for the Cape Sable seaside sparrow may be warranted.
We solicit information, including additional comments and suggestions from the public, other concerned governmental agencies, the scientific community, industry, or other interested parties, concerning revision of the critical habitat for the Cape Sable seaside sparrow.
After consideration of additional information, submitted during the indicated time period (see
Please submit Internet comments as an ASCII file, avoiding the use of special characters and any form of encryption. Please also include “Attention: [Cape Sable Seaside Sparrow]” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at the address given in the
The primary author of this document is Heather McSharry, South Florida Field Office (see
The authority for this action is the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule.
We propose to add national wildlife refuges (refuges) to the list of areas open for hunting and/or sport fishing, along with pertinent refuge-specific regulations for such activities; and amend certain regulations on other refuges that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2000-2001 season.
You should submit comments on or before August 9, 2000.
Submit written comments to Chief, Branch of Planning and Policy, Division of Refuges, U.S. Fish and Wildlife Service, 1849 C Street, NW, MS 670 ARLSQ, Washington, DC 20240. See
Leslie A. Marler, (703) 358-2397; Fax (703) 358-2248.
The National Wildlife Refuge System Administration Act of 1966 (NWRSAA) closes national wildlife refuges to all uses until we open them. The Secretary of the Interior (Secretary) may open refuge areas to any use, including hunting and/or fishing upon a determination that such uses are compatible with the purposes of the refuge. The action also must be in accordance with provisions of all laws applicable to the areas, must be consistent with the principles of sound fish and wildlife management and administration, and otherwise must be in the public interest. These requirements ensure that we maintain the biological integrity, diversity, and environmental health of the National Wildlife Refuge System (System) for the benefit of present and future generations of Americans.
We review refuge hunting and fishing programs annually to determine whether to include additional refuges or whether individual refuge regulations governing existing programs need modifications, deletions, or additions made to them. Changing environmental conditions, State and Federal regulations, and other factors affecting wildlife populations and habitat may warrant modifications to ensure the continued compatibility of hunting and fishing programs and that these programs will not materially interfere with or detract from the fulfillment of the mission of the System or the purposes of the refuge.
You may find provisions governing hunting and fishing on national wildlife refuges in 50 CFR part 32. We regulate hunting and fishing on refuges to:
• Ensure compatibility with the purpose(s) of the refuge;
• Properly manage the fish and wildlife resource;
• Protect other refuge values; and
• Ensure refuge user safety.
On many refuges where we decide it is proper to open them for hunting and fishing, our general policy of adopting regulations identical to State hunting and fishing regulations is adequate in meeting these objectives. On other refuges, we must supplement State regulations with more restrictive Federal regulations to ensure that we meet our management responsibilities, as outlined under the section entitled “Statutory Authority.” We issue refuge-specific hunting and sport fishing regulations when we open wildlife refuges to either migratory game bird hunting, upland game hunting, big game hunting, or sport fishing. These regulations list the wildlife species that you may hunt or those species subject to sport fishing, seasons, bag limits, methods of hunting or fishing, descriptions of open areas, and other provisions as appropriate. You may find previously issued refuge-specific regulations for hunting and fishing in 50 CFR part 32. In this rulemaking, we are promulgating many of the amendments to these sections to standardize and clarify the existing language of these regulations.
Some refuges make seasonal information available in brochures or leaflets to supplement these refuge-specific regulations, which we provide for in 50 CFR 25.31.
In this rule the vast majority of the revisions to the individual refuge units are to comply with a Presidential mandate to use plain language in regulations and do not modify the substance of the previous regulations. These types of changes include using “you” to refer to the reader and “we” to refer to the Service and using the word “allow” instead of “permit” when we do not require the use of a permit for an activity.
The National Wildlife Refuge System Administration Act (NWRSAA) of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee), and the Refuge Recreation Act (RRA) of 1962 (16 U.S.C. 460k-460k-4) govern the administration and public use of national wildlife refuges.
The National Wildlife Refuge System Improvement Act (NWRSIA) of 1997 is the latest amendment to the NWRSAA. It amends and builds upon the NWRSAA in a manner that provides an improved “Organic Act” for the System similar to those that exist for other public lands. It serves to ensure that we effectively manage the System as a national network of lands, waters, and interests for the protection and conservation of our Nation's wildlife resources. The NWRSAA states first and foremost that we focus the mission of the System on conservation of fish, wildlife, and plant resources and their habitat. This Act requires the Secretary, before initiating or allowing a new use of a refuge, or before expanding, renewing, or extending an existing use of a refuge, to determine that the use is compatible and promotes public safety. The NWRSIA establishes as the policy of the United States that wildlife-dependent recreation, when it is compatible, is a legitimate and appropriate public use of the System, through which the American public can develop an appreciation for fish and wildlife. The NWRSIA establishes six compatible wildlife-dependent recreational uses as the priority general public uses of the System. Those priority uses are: hunting, fishing, wildlife observation, wildlife photography, environmental education, and environmental interpretation.
The RRA authorizes the Secretary to administer areas within the System for public recreation as an appropriate incidental or secondary use only to the extent that doing so is practicable and not inconsistent with the primary purpose(s) for which Congress and the Service established the areas. This act requires that any recreational use of refuge lands be compatible with the primary purpose(s) for which we established the refuge and not
The NWRSAA and RRA also authorize the Secretary to issue regulations to carry out the purposes of the acts and regulate uses.
We develop hunting and sport fishing plans for each refuge prior to opening it to hunting or fishing. In many cases, we develop refuge-specific regulations to ensure the compatibility of the programs with the purposes for which we established the refuge. We have ensured initial compliance with the NWRSAA and the RRA for hunting and sport fishing on newly acquired refuges through an interim determination of compatibility made at the time of acquisition. This policy ensures that we make the determinations required by these acts prior to adding refuges to the lists of areas open to hunting and fishing in 50 CFR part 32. We ensure continued compliance by the development of Comprehensive Conservation Plans, long-term hunting and sport fishing plans, and by annual review of hunting and sport fishing programs and regulations.
In preparation for new openings, we include the following documents in the refuges' “opening package”: an interim hunting and fishing management plan; a Section 7 determination pursuant to the Endangered Species Act that these openings will have no effect, or are not likely to have an adverse effect, on listed species or critical habitats; a letter of concurrence from the affected State(s); interim compatibility determinations; and refuge-specific regulations to administer the hunting and/or fishing programs. Upon review of these documents, we have determined that the opening of these national wildlife refuges to hunting and fishing is compatible with the principles of sound fish and wildlife management and administration and otherwise will be in the public interest.
We propose to allow the following wildlife-dependent recreational activities for the first time:
Hunting of migratory game birds on:
• Grand Bay National Wildlife Refuge, Alabama
• Mandalay National Wildlife Refuge, Louisiana
• Lake Umbagog National Wildlife Refuge, Maine and New Hampshire
• McNary National Wildlife Refuge, Oregon
• Balcones Canyonland National Wildlife Refuge, Texas
• Lower Rio Grande Valley National Wildlife Refuge, Texas
• Arid Lands National Wildlife Refuge Complex, Washington
Upland game hunting on:
• Grand Bay National Wildlife Refuge, Alabama
• Cameron Prairie National Wildlife Refuge, Louisiana
• Lake Umbagog National Wildlife Refuge, Maine and New Hampshire
• McNary National Wildlife Refuge, Oregon
• Arid Lands National Wildlife Refuge Complex, Washington
Big game hunting on:
• Grand Bay National Wildlife Refuge, Alabama
• Mandalay National Wildlife Refuge, Louisiana
• Lake Umbagog National Wildlife Refuge, Maine and New Hampshire
• San Andres National Wildlife Refuge, New Mexico
• McNary National Wildlife Refuge, Oregon and Washington
• Lower Rio Grande Valley National Wildlife Refuge, Texas
• Mackay Island National Wildlife Refuge, Virginia
• Arid Lands National Wildlife Refuge Complex, Washington
Sport fishing on:
• Atchafalaya National Wildlife Refuge, Louisiana
• Bayou Cocodrie National Wildlife Refuge, Louisiana
• Rachel Carson National Wildlife Refuge, Maine
• Sand Lake National Wildlife Refuge, South Dakota
• Trinity River National Wildlife Refuge, Texas
• Mackay Island National Wildlife Refuge, Virginia
• Arid Lands National Wildlife Refuge Complex, Washington
In accordance with NWRSAA and the RRA, we have determined that these openings are compatible and consistent with the primary purposes for which we established the respective refuges.
We propose to remove Ankeny National Wildlife Refuge, Oregon, which had been open for migratory game bird hunting, from the list of refuges open for wildlife-dependent recreational activities.
We are correcting an administrative error that occurred when we inadvertently dropped “Sport Fishing” as an activity open to the public in Sand Lake National Wildlife Refuge in the State of South Dakota from 50 CFR 32.61. Sand Lake National Wildlife Refuge has been open to “Sport Fishing” since December 22, 1978.
We are making a technical correction to update 50 CFR 25.23 to reflect current information collection clearance numbers that the Office of Management and Budget (OMB) approved for: “Special Use Permit Application on National Wildlife Refuges Outside Alaska” (1018-0102 which expires December 31, 2001), and “Special Use Permit Applications on National Wildlife Refuges In Alaska” (1018-0014, which expires August 31, 2000, and is currently at OMB for renewal).
You may comment on this proposed rule by any one of several methods:
1. You may mail comments to: Chief, Branch of Planning and Policy, Division of Refuges, U.S. Fish and Wildlife Service, 1849 C Street, NW, MS 670 ARLSQ, Washington, DC 20240.
2. You may comment via the Internet to: Refuge_Specific_Comments@fws. gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include: “Attn: 1018-AG01” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at (703) 358-1744.
3. You may fax comments to: Chief, Branch of Planning and Policy, Division of Refuges, (703) 358-2248.
4. Finally, you may hand-deliver comments to the address mentioned above.
We seek comments on this proposed rule and will accept comments by any of the methods described above. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
Department of the Interior policy is, whenever practicable, to afford the public a meaningful opportunity to participate in the rulemaking process. We considered providing a 60-day rather than a 30-day comment period. However, we determined that an additional 30-day delay in processing these refuge-specific hunting and
When finalized, we will incorporate this regulation into Title 50 Code of Federal Regulations (50 CFR) parts 25 and 32. Part 25 contains the administrative provisions for the National Wildlife Refuge System. Part 32 contains general provisions and refuge-specific regulations for hunting and sport fishing on national wildlife refuges.
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the rule? (6) What else could we do to make the rule easier to understand?
This document is not a significant rule subject to Office of Management and Budget review under Executive Order 12866. See explanation under Regulatory Flexibility Act.
a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. This rule is administrative, legal, technical, and procedural in nature and makes minor modification to existing refuge public use programs. The rule will allow hunting on 10 refuges where we had prohibited hunting and allow fishing on 7 refuges where we had prohibited that activity. We estimate that these changes will result in 9,440 additional visitor-hunting-days and 49,200 visitor-fishing-days. The appropriate measure for the net benefits of these changes is the additional net economic value experienced by the participants. The 1996 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation measured net economic values by activity and region. Applying these estimates to the number of additional activity-days permitted by this rule yields an estimate of the national benefits from increased hunting of $368,000 and from increased fishing of $1.6 million (both in 1999 dollars). These estimates are below the threshold for a significant rule.
b. This rule will not create inconsistencies with other agencies' actions. Before proposing regulations, we coordinate recreational use on national wildlife refuges with State governments as well as other Federal agencies having adjoining or overlapping jurisdiction. The regulation is consistent with, and not less restrictive than, other agencies' rules.
c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The provisions of this rule only apply to persons involved in wildlife-dependent public use, including regulated hunting and sport fishing, on national wildlife refuges, which is a privilege and not a right. User fees will not change as a result of this rule.
d. This rule will not raise novel legal or policy issues. This rule continues the practice of requiring public use of refuges to be compatible with the primary purpose of the refuge.
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities such as businesses, organizations, and governmental jurisdictions in the area as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This rulemaking will not have a significant economic impact on a substantial number of small entities (refer to paragraph a. above for the net economic values). Congress created the National Wildlife Refuge System to conserve fish, wildlife, and plants and their habitats. They facilitated this conservation mission by providing Americans opportunities to visit and participate in compatible wildlife-dependent recreation, including hunting, fishing, wildlife observation, wildlife photography, environmental education, and environmental interpretation as priority public uses on national wildlife refuges and to better appreciate the value of, and need for, fish and wildlife conservation.
This rule is administrative, legal, technical, and procedural in nature and provides for minor changes to the methods of hunting and fishing permitted but does not stop the overall use allowed. This rule will not significantly change the number of visitors using refuges or their spending and, therefore, will have no significant impact on the local economies in their vicinity.
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act, as discussed in the Regulatory Planning and Review section above. This rule:
a. Does not have an annual effect on the economy of $100 million or more [This regulation will affect only visitors at national wildlife refuges. It will cause a slight change in the number of visitors using the refuge (9,440 additional visitor-hunting days and 49,200 visitor-fishing days).];
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
Since this rule applies to public use of federally owned and managed refuges, it does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
In accordance with Executive Order 12630, the rule does not have significant takings implications. This regulation will affect only visitors at national wildlife refuges and limit what they can do while they are on a refuge.
As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections above, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment under Executive Order 13132. In preparing this proposed rule, we worked with State governments.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The regulation will clarify established regulations and result in better understanding of the regulations by refuge visitors.
This regulation does not contain any information collection requirements other than those already approved by the Office of Management and Budget under the Paperwork Reduction Act. See 50 CFR 25.23 for information concerning that approval.
In preparation for new openings, we include Section 7 consultation documents approved by the Services' Ecological Services program in the refuge's “openings package” for Regional review and approval from the Washington Office. We reviewed the changes in hunting and fishing regulations herein with regard to Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531-1543). For the national wildlife refuges proposed to open for hunting and/or fishing the Service has determined that Bayou Cocodrie, Lake Umbagog, Grand Bay, Lower Rio Grande, and McNary will not likely adversely affect and Rachel Carson, Atchafalaya, San Andres, and Mandalay will not affect the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species within the System.
Arid Lands is opening with no Section 7 under an existing record of decision with the Department of Energy, who has primary jurisdiction.
We comply with Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) when developing Comprehensive Conservation Plans, management plans for public use of refuges, and prior to implementing any new or revised public recreation program on a refuge as identified in 50 CFR 26.32. We also make determinations required by the Endangered Species Act on a case-by-case basis before the addition of a refuge to the lists of areas open to hunting or fishing as contained in 50 CFR 32.7.
We analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)) and 516 DM 6, Appendix 1. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required.
A categorical exclusion from NEPA documentation covers this amendment of refuge-specific hunting and fishing regulations since it is technical and procedural in nature, and the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis (516 DM 2, Appendix 1.10).
Prior to the addition of a refuge to the list of areas open to hunting and fishing in 50 CFR part 32, we develop hunting and fishing plans for the affected refuges. We incorporate these proposed refuge hunting and fishing activities in the refuge Comprehensive Conservation Plans and/or step-down management plans, pursuant to our refuge planning guidance in 602 FW 1-3. We prepare these plans in compliance with section 102(2)(C) of NEPA, and the Council on Environmental Quality's regulations for implementing NEPA in 40 CFR parts 1500-1508. We invite the affected public to participate in the review, development, and implementation of these plans.
Individual refuge headquarters retain information regarding public use programs and the conditions that apply to their specific programs and maps of their respective areas. You may also obtain information from the Regional offices at the addresses listed below:
Region 1—California, Hawaii, Idaho, Nevada, Oregon, and Washington. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, Eastside Federal Complex, Suite 1692, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181; Telephone (503) 231-6214.
Region 2—Arizona, New Mexico, Oklahoma, and Texas. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, Box 1306, 500 Gold Avenue, Albuquerque, New Mexico 87103; Telephone (505) 248-7419.
Region 3—Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, 1 Federal Drive, Federal Building, Fort Snelling, Twin Cities, Minnesota 55111; Telephone (612) 713-5401.
Region 4—Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Puerto Rico, and the Virgin Islands. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Atlanta, Georgia 30345; Telephone (404) 679-7166.
Region 5—Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035-9589; Telephone (413) 253-8306.
Region 6—Colorado, Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, 134 Union Blvd., Lakewood, Colorado 80228; Telephone (303) 236-8145.
Region 7—Alaska. Assistant Regional Director—Refuges and Wildlife, U.S. Fish and Wildlife Service, 1011 E. Tudor Rd., Anchorage, Alaska 99503; Telephone (907) 786-3545.
Leslie A. Marler, Management Analyst, Division of Refuges, U.S. Fish and Wildlife Service, Washington, DC 20240, is the primary author of this rulemaking document.
Administrative practice and procedure, Concessions, Reporting and recordkeeping requirements, Safety, Wildlife refuges.
Fishing, Hunting, Reporting and recordkeeping requirements, Wildlife, Wildlife refuges.
For the reasons set forth in the preamble, we propose to amend Title 50, Chapter I, subchapter C of the Code of Federal Regulations as follows:
1. The authority citation for part 25 continues to read as follows:
5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i, 3901
2. By revising § 25.23 to read as follows:
The Office of Management and Budget has approved the information collection requirements contained in subchapter C, parts 25, 32, and 36 under 44 U.S.C. 3501
3. The authority citation for part 32 continues to read as follows:
5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd-668ee, and 715i.
4. In § 32.7 by:
a. Alphabetically adding “Grand Bay National Wildlife Refuge” in the State of Alabama;
b. Revising the listing of “Walnut Creek National Wildlife Refuge” under the State of Iowa to read “Neal Smith National Wildlife Refuge;”
c. Alphabetically adding “Lake Umbagog National Wildlife Refuge” in the State of Maine;
d. Alphabetically adding “Lake Umbagog National Wildlife Refuge” in the State of New Hampshire;
e. Alphabetically adding “San Andres National Wildlife Refuge” in the State of New Mexico;
f. Removing “Ankeny National Wildlife Refuge” in the State of Oregon;
g. Revising the listing of “Klamath Forest National Wildlife Refuge” to read “Klamath Marsh National Wildlife Refuge” in the State of Oregon.
h. Alphabetically adding “McNary National Wildlife Refuge” in the State of Oregon;
i. Alphabetically adding “Lower Rio Grande Valley National Wildlife Refuge” in the State of Texas;
j. Alphabetically adding “Trinity River National Wildlife Refuge” in the State of Texas;
k. Alphabetically adding “Mackay Island National Wildlife Refuge” in the State of Virginia; and
l. Alphabetically adding “Arid Lands National Wildlife Refuge Complex” in the State of Washington.
5. In § 32.20 Alabama by alphabetically adding Grand Bay National Wildlife Refuge to read as follows:
6. In § 32.23 Arkansas by revising paragraphs B. and D.1. of Wapanocca National Wildlife Refuge to read as follows:
1. We allow fishing from March 15 through October 31 from sunrise to sunset.
7. In § 32.24 California by:
a. Adding paragraphs A.5., A.6., B.6., and B.7. of Colusa National Wildlife Refuge;
b. Adding paragraphs A.8., A.9, B.6, and B.7. of Delevan National Wildlife Refuge;
c. Revising paragraph A.2., and adding paragraphs A.2.a., A.2.b. of Lower Klamath National Wildlife Refuge;
d. Adding paragraphs A.8., A.9., B.6., and B.7. of Sacramento National Wildlife Refuge;
e. Adding paragraphs A.5., A.6., B.5., and B.6. of Sutter National Wildlife Refuge; and
f. Revising paragraph A.2., adding paragraphs A.2.a. and A.2.b. of Tule Lake National Wildlife Refuge to read as follows:
5. You may enter or exit only at designated locations.
6. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
6. You may enter or exit only at designated locations.
7. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
8. You may enter or exit only at designated locations.
9. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment, or stopping between designated parking areas.
6. You may enter or exit only at designated locations.
7. Vehicles may stop only at designated parking areas. We prohibit
2. Shooting hours end at 1:00 p.m. on all California portions of the refuge with the following exceptions:
a. The refuge manager may designate up to 6 afternoon special youth or disabled hunter waterfowl hunts per season; and
b. The refuge manager may designate up to 3 days per week of afternoon waterfowl hunting for the general public after December 1.
8. You may enter or exit only at designated locations.
9. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
6. You may enter or exit only at designated locations.
7. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
5. You may enter or exit only at designated locations.
6. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
5. You may enter or exit only at designated locations.
6. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
2. Shooting hours end at 1:00 p.m. on all California portions of the refuge with the following exceptions:
a. The refuge manager may designate up to 6 afternoon special youth or disabled hunter waterfowl hunts per season; and
b. The refuge manager may designate up to 3 days per week of afternoon waterfowl hunting for the general public after December 1.
8. In § 32.27 Delaware by revising paragraphs A.5., A.7., B.3., the introductory text of paragraph C., paragraphs C.1., C.3., and C.4. and removing paragraphs A.8. and B.4 of Bombay Hook National Wildlife Refuge to read as follows:
5. The maximum number of hunters permitted per blind is as follows: West Waterfowl Area—4; South Waterfowl Area—3; Young Waterfowlers Area—2.
7. Waterfowl hunters may not possess more than 15 shotgun shells per day on the West and Young Waterfowlers Hunt Areas.
3. You may possess only approved nontoxic shot while in the field.
1. We require a refuge permit except on the South Upland Hunting Area.
3. We require a valid State permit for turkey hunting.
4. During firearms deer season, hunters must wear in a conspicuous manner as an outer layer on the head, chest, and back a minimum of 400 square inches (2,600 cm2) of solid-colored orange clothing or material.
9. In § 32.28 Florida by:
a. Revising paragraph D. of Chassahowitzka National Wildlife Refuge; and
b. Revising paragraphs A.1., A.5., and A.7. of Merritt Island National Wildlife Refuge to read as follows:
1. You must possess a valid refuge hunting permit at all times while hunting on the refuge. In addition, we annually require a quota permit for hunt areas 1 and 4 from the beginning of the regular waterfowl season through December 31.
5. You must complete and carry proof of completing an approved hunter safety training course in all hunt areas.
7. The public may not enter the refuge between sunset and sunrise except: You may access the refuge for waterfowl hunting only after 4:00 a.m. each hunting day during waterfowl hunting season, and a valid refuge hunting permit must be in your possession.
10. In § 32.31 Idaho by:
a. Revising paragraph B. of Bear Lake National Wildlife Refuge;
b. Revising paragraph B. of Camas National Wildlife Refuge;
c. Revising paragraph B. of Kootenai National Wildlife Refuge; and
d. Revising paragraph B.2. of Minidoka National Wildlife Refuge to read as follows:
2. You may possess only approved nontoxic shot while in the field.
11. In § 32.32 Illinois by:
a. Revising paragraph D. of Chautauqua National Wildlife Refuge;
b. Revising paragraph A.4.and adding paragraph A.5. of Upper Mississippi River National Wildlife and Fish Refuge to read as follows:
1. We allow fishing on Lake Chautauqua from January 15 through October 15. You may not fish in the Waterfowl Hunting Area during waterfowl hunting season.
2. You may not leave private boats in refuge waters overnight.
3. We restrict motorboats to “slow speed/minimum wake.”
4. The public may not enter Weis Lake on the Cameron-Billsbach Unit of Chautauqua National Wildlife Refuge from October 16 through January 14, to provide sanctuary for migratory birds.
4. On Pools 4 through 11, you may not place or leave decoys on the refuge during the time from
5. This condition applies to Pools 4 through 11 only. We prohibit construction of permanent hunting blinds using manmade materials. You must remove all manmade blind materials from the refuge at the end of each day's hunt. Any blinds containing manmade materials left on the refuge are subject to immediate removal and disposal. Manmade materials include, but are not limited to: wooden pallets, lumber, railroad ties, fence posts (wooden or metal), wire, nails, staples, netting, or tarps. We allow you to leave only seasonal blinds, made entirely of natural vegetation and biodegradable twines, on the refuge. We consider all such blinds public property and open to use by any person on a first-come basis. We allow you to gather only willow, grasses, marsh vegetation, and dead wood on the ground from the refuge for blind-building materials. We prohibit cutting or removing any other refuge trees or vegetation.
12. In § 32.33 Indiana by revising paragraph D.1. of Muscatatuck National Wildlife Refuge to read as follows:
1. You may fish from the bank and from nonmotorized boats on Stanfield Lake from May 15 through October 15. You may not boat at other times. Stanfield Lake is open to ice fishing when ice conditions permit.
13. In § 32.34 Iowa by revising the heading of Walnut Creek National Wildlife Refuge to read as follows and placing the listing in alphabetical order:
14. In § 32.37 Louisiana by:
a. Revising Atchafalaya National Wildlife Refuge;
b. Revising paragraphs B., C., and D. of Bayou Cocodrie National Wildlife Refuge;
c. Revising Cameron Prairie National Wildlife Refuge;
d. Removing paragraphs D.3. and D.4. of Grand Cote National Wildlife Refuge;
e. Revising the introductory text of paragraph A. of Lacassine National Wildlife Refuge;
f. Revising the introductory text of paragraph C. of Lake Ophelia National Wildlife Refuge; and
g. Revising paragraphs A., C., and D. of Mandalay National Wildlife Refuge to read as follows:
1. Hunting must be in accordance with Sherburne Wildlife Management Area regulations.
2. For the Indian Bayou Area, we require an Army Corps of Engineer permit.
1. Hunting must be in accordance with Sherburne Wildlife Management Area regulations.
2. For the Indian Bayou Area, we require an Army Corps of Engineer permit.
1. Hunting must be in accordance with Sherburne Wildlife Management Area regulations.
2. For the Indian Bayou Area, we require an Army Corps of Engineer permit.
1. We require refuge permits for commercial shellfishing.
2. For the Indian Bayou Area, we require an Army Corps of Engineer permit for commercial shellfishing.
1. Each boat/vehicle entering the refuge must possess an entrance pass.
2. We allow fishing during daylight hours only.
3. We allow fishing on the Cross Bayou Cut and all tributaries that fill with water from Cocodrie Bayou during high water stages.
4. We prohibit camping.
5. We allow only cotton limb lines.
6. You may not use trotlines, slat traps, or nets while fishing.
1. We require refuge permits.
2. Any person entering, using, or occupying the refuge for hunting must abide by all terms and conditions in the appropriate refuge brochure.
1. We require refuge permits.
2. Any person entering, using, or occupying the refuge for hunting must abide by all terms and conditions in the appropriate refuge brochure.
1. We require refuge permits.
2. Any person entering, using, or occupying the refuge for hunting must abide by all terms and conditions in the appropriate refuge brochure.
15. In § 32.38 Maine by:
a. Alphabetically adding Lake Umbagog National Wildlife Refuge;
b. Revising paragraph D. of Rachel Carson National Wildlife Refuge; and
c. Revising paragraph D. of Sunkhaze Meadows National Wildlife Refuge to read as follows:
1. You may possess only approved nontoxic shot while in the field.
2. Designated permanent blinds will be available by reservation. We allow no other permanent blinds. You must remove temporary blinds, boats, and decoys from the refuge following each day's hunt.
3. You must wear in a conspicuous manner on the outermost layer of the head, chest, and back, a minimum of 400 square inches (2,600 cm
4. We allow pre-hunt scouting, however, we will not allow dogs during pre-hunt scouts.
5. We prohibit dog training.
6. You must unload all firearms outside of legal State hunting hours.
7. We prohibit the use of all-terrain vehicles (ATV's).
8. The Refuge will be open to hunting during the hours stipulated under Maine hunting regulations, but no longer than from
1. You may possess only approved nontoxic shot while in the field.
2. You may only use pursuit or trailing dogs to hunt coyote or snowshoe hare.
3. We allow hunting of snowshoe hare with dogs from November 20 to January 1.
4. We allow hunting of coyote with dogs from October 20 to November 9.
5. We allow a maximum of four dogs per hunter.
6. Dogs may only be on the refuge when the hunter is present.
7. You must equip dogs used to hunt coyote with operational radiotelemetry collars. You must be in possession of a working radiotelemetry receiver that can detect and track the frequency(ies) emitted by each radio collar used.
8. We do not allow hunting for coyote and raccoon from
9. We allow pre-hunt scouting, however, we do not allow dogs during pre-hunt scouts.
10. We prohibit dog training.
11. You must wear in a conspicuous manner on the outermost layer of the head, chest, and back, a minimum of 400 square inches (2,600 cm
12. You must unload all firearms outside of legal State hunting hours.
13. We prohibit the use of all-terrain vehicles (ATV's).
14. The refuge will be open to hunting during the hours stipulated under Maine hunting regulations, but no longer than from
1. We allow bear hunting with dogs from October 20 to October 29.
2. You must equip dogs used to hunt bear with operational radiotelemetry collars. You must be in possession of a working radiotelemetry receiver that can detect and track the frequency(ies) emitted by each radio collar used.
3. We allow a maximum of four dogs per hunter.
4. Dogs may only be on the refuge when the hunter is present.
5. You must take the first bear you tree, except in the case of cubs or a sow with cubs.
6. You must report where you took the bear to the State of Maine.
7. We allow pre-hunt scouting, however, we will not allow dogs during pre-hunt scouts.
8. We prohibit dog training.
9. You may use only portable tree stands, and you must remove them from the refuge each day.
10. You must wear in a conspicuous manner on the outermost layer of the head, chest, and back a minimum of 400 square inches (2,600 cm
11. You must unload all firearms outside of legal State hunting hours.
12. We prohibit the use of all-terrain vehicles (ATV's).
13. The refuge will be open to hunting during the hours stipulated under Maine hunting regulations, but no longer than from
16. In § 32.40 Massachusetts by:
a. Revising paragraph D. of Monomoy National Wildlife Refuge;
b. Adding paragraph D.3. to Nantucket National Wildlife Refuge; and
c. Revising the introductory text of paragraph B and revising paragraph B.3. and adding paragraph B.4. to Oxbow National Wildlife Refuge to read as follows:
3. In addition to daytime fishing, we allow fishing after sunset in accordance with State regulations.
3. You may possess only approved nontoxic shot while in the field, except while hunting turkey.
4. Hunters will comply with all State hunting regulations.
17. In § 32.42 Minnesota by adding introductory text to paragraph A, revising the introductory text of paragraph B. and adding paragraphs B.2., B.3., and C.3. to Big Stone National Wildlife Refuge to read as follows:
2. You may hunt fox, raccoon, and striped skunk only during open seasons for other small game species. You may not use dogs while raccoon hunting.
3. You may hunt only turkey if you have a valid State turkey hunting permit in your possession.
3. You may hunt only deer if you have a valid State permit in your possession.
18. In § 32.44 Missouri by revising paragraphs A., B., and C. of Big Muddy National Wildlife Refuge to read as follows:
1. Shotgun hunters may use only approved nontoxic shot while in the field.
2. You must remove all boats, decoys, and blinds from the refuge following each day's hunt except for blinds made entirely of marsh vegetation. You may not cut woody vegetation on the refuge for blinds.
1. You may use only approved nontoxic shot while hunting for upland game, except wild turkeys. You may use lead shot while hunting for wild turkey.
1. You may not use tree spikes to help you climb trees or hunt on the refuge.
2. You must remove tree stands from the refuge within 24 hours of the close of the deer hunting season.
3. You may not hunt over or place on the refuge any salt or other mineral blocks.
19. In § 32.47 Nevada by:
a. Revising paragraphs A. and B. of Ash Meadows National Wildlife Refuge;
b. Revising paragraphs A., B., and D.1. of Pahranagat National Wildlife Refuge; and
c. Adding paragraph A.3. and revising the introductory text of paragraph D. and paragraph D.2. of Ruby Lake National Wildlife Refuge.
1. We allow hunting only on designated days.
2. We allow only nonmotorized boats or boats with electric motors on the refuge hunting area during the migratory waterfowl hunting season.
1. We allow hunting of quail and rabbit only on designated days during the regular State season for quail.
2. We prohibit the discharging of rifles or handguns.
1. We allow hunting only on designated days.
2. We allow only nonmotorized boats or boats with electric motors on the refuge hunting area during the migratory waterfowl hunting season.
1. We allow fishing year round with exception of North Marsh, which we close October 1 to February 1.
3. The refuge is open to the public from 1 hour before sunrise to 2 hours after sunset.
2. We allow fishing on dikes in the areas north of the Brown Dike and east of the Collection Ditch with the exception that you may fish by wading and from personal flotation devices (float tubes) in designated areas.
20. In § 32.48 New Hampshire by adding Lake Umbagog National Wildlife Refuge to read as follows:
1. You may possess only approved nontoxic shot while in the field.
2. Designated permanent blinds will be available by reservation. We will allow no other permanent blinds. You must remove temporary blinds, boats, and decoys from the refuge following each day's hunt.
3. You must wear in a conspicuous manner on the outermost layer of the head, chest, and back, a minimum of 400 square inches (2,600 cm
4. You must unload all firearms outside of legal State hunting hours.
5. We prohibit use of all-terrain vehicles (ATV's).
6. We allow pre-hunt scouting, however, we do not permit dogs during pre-hunt scouts.
7. We prohibit dog training.
8. The refuge will be open to hunting during the hours stipulated under New Hampshire hunting regulations, but no longer than from
1. You may possess only approved nontoxic shot while in the field.
2. You may only use pursuit or trailing dogs to hunt coyote or snowshoe hare.
3. We allow hunting of snowshoe hare from November 20 to January 1.
4. We allow hunting of coyote with dogs from October 20 to November 9.
5. We allow a maximum of four dogs per hunter.
6. Dogs may only be on the refuge when the hunter is present.
7. You must equip dogs used to hunt coyote with operational radiotelemetry collars. You must be in possession of a working radiotelemetry receiver that can detect and track the frequency(ies) emitted by each radio collar used.
8. We do not allow hunting for coyote and raccoon from
9. We allow pre-hunt scouting, however, we will not allow dogs during pre-hunt scouts.
10. We prohibit dog training.
11. You must wear in a conspicuous manner on the outermost layer of the head, chest, and back, a minimum of 400 square inches (2,600 cm
12. You must unload all firearms outside of legal State hunting hours.
13. We prohibit the use of all-terrain vehicles (ATV's).
14. The refuge will be open to hunting during the hours stipulated under New Hampshire hunting regulations, but no longer than from
1. We allow hunting of bear with dogs from October 20 to November 9.
2. You must equip dogs used to hunt bear with operational radiotelemetry collars. You must be in possession of a working radiotelemetry receiver that can detect and track the frequency(ies) emitted by each radio collar used.
3. We allow a maximum of four dogs per hunter.
4. Dogs may only be on the refuge when the hunter is present.
5. You must take the first bear you tree, except in the case of cubs or a sow with cubs.
6. You must report where you took the bear to the State of New Hampshire.
7. We allow pre-hunt scouting, however, we do not allow dogs during pre-hunt scouts.
8. We prohibit dog training.
9. You may use only portable tree stands, and you must remove them from the refuge each day.
10. You must wear in a conspicuous manner on the outermost layer of the head, chest, and back, a minimum of 400 square inches (2,600 cm
11. You must unload all firearms outside of legal State hunting hours.
12. We prohibit the use of all-terrain vehicles (ATV's).
13. The refuge will be open to hunting during the hours stipulated under New Hampshire hunting regulations, but no longer than from
21. In § 32.49 New Jersey by revising paragraphs A., C.1., and D.1., revising the introductory text of paragraphs C. and D., and adding paragraph D.4 of Edwin B. Forsythe National Wildlife Refuge.
1. You must remove all hunting blind materials, boats, and decoys at the end of each hunting day. We do not allow permanent and pit blinds.
2. We may restrict use of Hunting Unit 3 of the Brigantine Division to certified Young Waterfowl Program trainees for up to 30 days as posted.
3. You may not possess more than 25 shells per day in Hunting Units A, B, and C in the Barnegat Division. You may not possess more than 50 shells per day in Unit 1 of the Brigantine Division.
4. In Hunting Unit B of the Barnegat Division, we restrict hunting to designated sites, with each site limited to one party of hunters. We require a minimum of six decoys per site.
5. In Hunting Unit D of the Barnegat Division, we require a minimum of six decoys and do not allow jump shooting. Access is by boat only; we do not allow foot access.
6. Access is by boat only in all Units except the portion of Unit A that is south of West Creek Dock Road, in the Barnegat Division, and Unit 5 in the Brigantine Division. You may access these Units by foot or boat.
7. You may occupy no sites or Units before 4:00 a.m. Access is by boat only.
8. You may possess only approved nontoxic shot while in the field.
1. We require a State permit for the appropriate New Jersey Deer Management Zone. You must have this permit stamped and validated in person at the Refuge Headquarters.
1. We allow saltwater fishing from the Holgate beach and Little Beach Island with the exception of those areas posted as closed. We may close the Holgate Unit and Little Beach Island to all public use during the migratory bird nesting season. We require a saltwater fishing permit to fish from Little Beach Island. You may obtain permits from the Refuge Headquarters.
4. We allow bank fishing and crabbing at designated areas. Contact the Refuge Headquarters for locations.
22. In § 32.50 New Mexico by alphabetically adding San Andres National Wildlife Refuge to read as follows:
1. We require hunters to check in and out of the hunt area.
2. We require hunters to attend unexploded ordnance (UXO) training prior to entering the hunt area.
3. We require State permits and payment of a hunt fee.
23. In § 32.51 New York by revising paragraphs A.1., B.1., C., and D.4, deleting paragraph A.3, and redesignating paragraphs A.4., A.5., A.6., and A.7., and A.8. as paragraphs A.3., A.4., A.5., A.6., and A.7. of Iroquois National Wildlife Refuge to read as follows:
1. We require refuge permits.
1. We require refuge permits.
4. We do not allow the use of boats or other flotation devices with the exception that you may use nonmotorized boats on Oak Orchard Creek east of Route 63.
24. In § 32.52 North Carolina by:
a. Revising paragraphs A.2., B.3., and C.3. of Pocosin Lakes National Wildlife Refuge; and
b. Revising paragraphs A. and B. of Roanoke River National Wildlife Refuge to read as follows:
2. Firearms in transport by vehicle or boat under power must remain unloaded.
3. Firearms in transport by a vehicle or boat under power must remain unloaded.
C. Big Game Hunting. * * *
3. Firearms in transport by a vehicle or boat under power must remain unloaded.
1. We require refuge permits.
2. You may possess only approved nontoxic shot while in the field.
25. In § 32.53 North Dakota by:
a. Revising paragraphs B. and C. of Lake Zahl National Wildlife Refuge; and
b. Revising paragraph C. of Upper Souris National Wildlife Refuge to read as follows:
1. You may possess only approved nontoxic shot while in the field.
2. The upland game bird season opens annually on the day following the close of the regular firearm deer season through the end of the State season.
3. Hunters may enter the refuge on foot only.
1. We allow archery hunting through the day before the opening of the State waterfowl season and allow it following the deer gun season.
2. We allow deer gun hunting concurrent with the State deer gun season.
3. Hunters may enter the refuge on foot only.
26. In § 32.54 Ohio by revising paragraph D. of Cedar Point National Wildlife Refuge to read as follows:
1. You may fish only during daylight hours during designated dates.
2. We do not allow boats or flotation devices.
27. In § 32.55 Oklahoma by:
a. Revising paragraph A.4., adding paragraph B.5, and revising paragraph D. of Little River National Wildlife Refuge; and
b. Adding paragraph C.4. and revising paragraphs B.2. and D.9. of Tishomingo National Wildlife Refuge to read as follows:
4. You must possess a refuge permit.
5. You must possess a refuge permit.
1. We prohibit off-road vehicle use.
2. You must possess a refuge permit.
2. We allow only bows and arrows and shotguns using approved nontoxic shot.
4. We prohibit baiting on the refuge and the Wildlife Management Unit.
9. You may only take bait for personal use while fishing in the refuge in accordance with Oklahoma State law. We do not allow removal of bait from the refuge for commercial sales. You cannot release bait back into the water.
28. In § 32.56 Oregon by:
a. Removing Ankeny National Wildlife Refuge;
b. Revising paragraphs A.2. and B.2. and adding paragraphs A.7. and B.5. of Cold Springs National Wildlife Refuge;
c. Revising the heading of “Klamath Forest National Wildlife Refuge” to read “Klamath Marsh National Wildlife Refuge;”
d. Revising paragraphs A.2. and B.2. of McKay Creek National Wildlife Refuge;
e. Adding McNary National Wildlife Refuge; and
f. Revising paragraph A. of William L. Finley National Wildlife Refuge to read as follows:
2. We allow hunting only on Tuesdays, Thursdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day.
7. We allow hunting in the Memorial Marsh Unit by designated blind sites only.
2. We allow hunting only on Tuesdays, Thursdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day.
5. We do not allow hunting of upland game birds until noon of each hunt day.
2. We allow hunting only on Tuesdays, Thursdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day.
2. We allow hunting only on Tuesdays, Thursdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day.
1. You may possess only approved nontoxic shot while in the field.
2. We allow dove hunting on the State Line and Juniper Canyon Units on legal hunt days in accordance with State regulations.
1. You may possess only approved nontoxic shot while in the field.
2. We allow hunting on State Line and Juniper Canyon Units in accordance with State regulations.
1. We allow shotguns and archery only.
2. We allow hunting on State Line and Juniper Canyon Units in accordance with State regulations.
29. In § 32.60 South Carolina by:
a. Revising paragraph D. of Cape Romain National Wildlife Refuge; and
b. Revising paragraphs C. and D. of Carolina Sandhills National Wildlife Refuge to read as follows:
1. We allow fishing from
2. We allow nonmotorized boats and boats with electric motors. You must hand load and unload boats except at designated boat ramps.
3. We do not allow fish baskets, net, set hooks, and trotlines.
30. In § 32.61 South Dakota by:
a. Revising paragraph B. of Pocasse National Wildlife Refuge; and
b. Revising paragraphs B. and D. of Sand Lake National Wildlife Refuge to read as follows:
31. In § 32.63 Texas by:
a. Revising paragraphs A., B., and C. of Balcones Canyonlands National Wildlife Refuge;
b. Alphabetically adding Lower Rio Grande Valley National Wildlife Refuge; and
c. Alphabetically adding Trinity River National Wildlife Refuge to read as follows:
1. The length of the hunting season will be concurrent with the State season in September and October.
2. We allow hunting in designated areas, from noon to sunset, Saturdays and Sundays.
3. You may possess only approved nontoxic shot while in the field.
4. We require refuge permits and payment of a hunt fee by all hunters.
5. We prohibit dogs.
6. All hunters must be 10 years old or older. An adult 21 years of age or older must supervise hunters ages 10-17 (inclusive).
7. We prohibit use or possession of alcohol.
8. We may immediately close the entire refuge or any portion thereof to hunting for the protection of resources, as determined by the refuge manager.
1. We allow hunting in November, December, and/or January.
2. We require hunters to check in and out of a hunt area.
3. We allow bows and arrows, shotguns, and rifles.
4. We may immediately close the entire refuge or any portion thereof to hunting for the protection of resources, as determined by the refuge manager.
5. Hunters must be at least 12 years of age. An adult 21 years of age or older must supervise hunters between the ages of 12 and 17 (inclusive).
6. The refuge will set bag limits.
7. We require hunters to visibly wear 400 square inches (2,600 cm
8. We require refuge permits and the payment of a hunt fee.
1. We allow hunting in November, December, and/or January.
2. We require hunters to check in and out daily at designated check stations.
3. We allow bows and arrows, shotguns, and rifles.
4. We may immediately close to hunting the entire refuge or any portion thereof for the protection of resources as determined by the refuge manager.
5. Hunters must be at least 12 years of age. An adult 21 years of age or older must supervise hunters between the ages of 12 and 17 (inclusive).
6. The refuge will set bag limits.
7. We require hunters to wear 400 square inches (2,600 cm2) of hunter orange on the outermost layer of the head, chest, and back, which must include a hunter orange hat or cap.
8. We require refuge permits and the payment of a hunt fee.
1. We require a refuge permit and payment of a fee.
2. We limit hunting to the months of September, October, and November in accordance with the State hunting season.
3. We allow only shotguns.
4. You may possess only approved nontoxic shot while in the field.
5. All hunters must be 12 years of age or older. An adult 21 years old or older must accompany hunters 12-17 years of age.
6. You may park at designated locations only.
1. We require a refuge permit and payment of a fee.
2. We will offer hunting during portions of the State hunting season.
3. We enforce a two-deer (one buck only) limit on white-tailed deer and no limit on feral hogs and nilgai antelope.
4. All hunters must be 12 years of age or older. An adult 21 years old or older must accompany hunters 12-17 years of age.
5. We will determine location and method of hunt each year.
6. You may park at designated locations only.
7. We prohibit the use of dogs and baiting for hunting.
1. We allow fishing only with pole and line, rod and reel, or hand-held line.
2. We do not allow the use of trotlines, setlines, bows and arrows, gigs, spears, or fish traps.
3. We do not allow use of frogs or turtles.
4. We allow fishing from sunrise to sunset.
5. We limit motors to a maximum of 10 horsepower. You may not fish or enter within 200 yards (180 m) of an established bird rookery from March through the end of May. Check at refuge headquarters for rookery location(s).
32. In § 32.65 Vermont by revising paragraphs A.1., A.2., A.4., A.5., C.1., C.4., and D. of Missisquoi National Wildlife Refuge to read as follows:
1. We require refuge permits to hunt in the Long Marsh Channel—Metcalfe Island Controlled Hunting Area, the Junior Waterfowl Hunting Area, and the Saxe's Pothole-Creek and Shad Island Pothole Hunting Area.
2. You may not possess more than 25 shells per day on the Long Marsh Channel-Metcalfe Island Controlled Hunting Area, the Junior Waterfowl Hunting Area, and the Saxe's Pothole-Creek and Shad Island Pothole Hunting Area.
4. Within any controlled hunting area, you must hunt within 100 feet (30 m) of the blind or blind stake for the area except to retrieve crippled birds.
5. You must hunt with one retriever per hunting party of up to two hunters per party within the Saxe's Pothole-Creek and Shad Island Pothole Hunting Area, the Long Marsh Channel-Metcalfe Island Hunting Area, and the Maquam Swamp Hunting Area.
1. You may use only shotguns and muzzleloaders on that part of the refuge east of the Missisquoi River during the State regular season or on that part of the refuge north and east of Route 78 during the Youth Hunt.
4. You may use only portable tree stands. You may leave them in place during deer seasons with proper notation on the big game permit.
33. In § 32.66 Virginia by:
a. Adding paragraph D.3. of Back Bay National Wildlife Refuge;
b. Revising paragraph A. of Chincoteague National Wildlife Refuge; and
c. Adding the alphabetical listing of Mackay Island National Wildlife Refuge to read as follows:
3. We require a refuge permit to fish in “D” Pool.
1. We require a refuge permit to hunt in designated public hunting areas.
2. We allow guided hunting in designated areas of Wildcat Marsh with refuge-designated commercial guides.
1. We allow fishing only from sunrise to sunset from March 15 through October 15.
2. You must attend all fishing lines.
3. We do not allow airboats.
34. In § 32.67 Washington by:
a. Alphabetically adding Arid Lands National Wildlife Refuge Complex;
b. Revising paragraphs A.1., A.3., and C. of Columbia National Wildlife Refuge;
c. Revising McNary National Wildlife Refuge;
d. Removing paragraphs A.4. and B.4., redesignating paragraphs A.5, A.6., and B.5. as A.4., A.5., and B.4. and revising newly redesignated paragraphs A.4., A.5., and B.4. of Toppenish National Wildlife Refuge; and
e. Revising paragraphs A. and D. of Willapa National Wildlife Refuge to read as follows:
1. You may possess only approved nontoxic shot while in the field.
2. We allow only shotguns.
1. In Marsh Unit 1 and Farm Units 226-227, we allow hunting only on Wednesdays, Saturdays, Sundays, and Federal holidays.
3. In Marsh Unit 1, concurrent with the State's designated Youth Day prior to the opening of the waterfowl season, an adult at least 18 years of age who is not hunting must accompany hunters under 16 years of age.
1. We allow only shotgun and archery hunting.
2. We allow hunting of deer only during State seasons that run concurrently with the State waterfowl season.
1. On the McNary Division, we allow hunting by refuge permit only. On the
2. We allow dove hunting only on the Wallula, Two Rivers, Peninsula, State line, and Juniper Canyon Units on legal hunt days in accordance with State regulations.
3. We allow waterfowl hunting on the Wallula and Two Rivers Units 7 days a week during State waterfowl season.
4. We allow waterfowl hunting on the Peninsula Unit Friday through Monday during State waterfowl season subject to the following condition: Hunting on the east side of the Peninsula and in the goose pits is by assigned blinds on a first-come, first-served basis.
5. The refuge is open from 5 a.m. to 1
6. You may not possess more than 25 approved nontoxic shells while in the field.
1. On the McNary Division, we allow hunting only on Wednesdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day. We do not allow hunting until noon of each hunt day. Hunting is for pheasant and quail only. On the first Saturday in December, only youth aged 10-17 and an accompanying adult aged 18 or over may hunt.
2. You may not possess more than 25 approved nontoxic shot shells while in the field.
3. We allow upland game hunting on the Wallula, Two Rivers, State line, and Juniper Canyon Units in accordance with State regulations.
4. We do not allow hunting on the Peninsula Unit until noon on legal goose hunting days.
1. On the McNary Division, visiting hours are from sunrise to sunset. We do not allow the use of boats and other flotation devices.
2. We allow fishing only with hook and line.
3. We allow fishing on the Wallula, Two Rivers, and Peninsula Units in accordance with State regulations.
4. Snipe hunters may possess only approved nontoxic shot while in the field.
5. On the Halvorson and Webb Units, you may hunt on Wednesdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day only. On the Robbins Road Unit, you may hunt on Tuesdays, Thursdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day only. Pumphouse, Isiri, Petty, and Chambers Units are open 7 days a week during waterfowl season.
4. On the Halvorson and Webb Units, you may hunt on Wednesdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day only. On the Robbins Road Unit, you may hunt on Tuesdays, Thursdays, Saturdays, Sundays, Thanksgiving Day, Christmas Day, and New Year's Day only. Pumphouse, Isiri, Petty, and Chambers Units are open 7 days a week during waterfowl season.
A.
1. Prior to entering the hunt area at the Riekkola Unit, we require you to obtain a refuge permit, pay a recreation user fee, and obtain a blind assignment.
2. At the Riekkola Unit, you may take ducks and coot only coincidental to hunting geese. We do not allow exclusive hunting of ducks in the Riekkola Unit.
3. We allow hunting in the Riekkola Unit only from established blinds on Wednesdays and Saturdays.
4. You may possess no more than 25 approved nontoxic shells per day while in the field.
D.
35. In § 32.68 West Virginia by adding paragraph C.2. in Canaan Valley National Wildlife Refuge to read as follows:
2. We allow shotgun and muzzle-loader hunting only with the possession of approved nontoxic shot size #4 or smaller for hunting of wild turkey. We prohibit rifle hunting.
36. In § 32.69 Wisconsin by revising paragraphs B.2., C.1., and C.2. of Necedah National Wildlife Refuge to read as follows:
2. During the spring turkey season, we allow unarmed hunters who have an unexpired spring turkey permit in their possession to scout the hunt area. We allow this scouting beginning on the Saturday immediately prior to the opening date listed on their State turkey hunting permit.
1. You may not possess a loaded firearm or a nocked arrow on a bow within 50 feet (15 m) of the centerline of all public roads. Also, during the gun deer season, you may not possess a loaded firearm within 50 feet (15 m) of the center of refuge trails, nor may you discharge a gun from across, down, or alongside these trails.
2. You may not construct or use permanent blinds, stands, or ladders.
37. In § 32.71 United States Unincorporated Pacific Insular Possessions by revising paragraph D. of Johnston Atoll National Wildlife Refuge to read as follows:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, D.C. 20503 and to Departmental Clearance office, USDA, OCIO, Mail Stop 7602, Washington, D.C. 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-6746.
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
RUS telephone borrowers fill out the form to request RUS approval in order to sell capital assets. Specifics to the sale of capital assets, including the use of Form 793 and submission of supporting documentation, are covered in REA Bulletin 415-1, “Sale of Property by Telephone Borrowers.” If the information in Form 793 is not collected when capital assets are sold, the capital assets securing the Government's loans could be liquidated and the Government's security either eliminated entirely or diluted to an undesirable level. This increases the risk of loss to the Government in the case of a default.
USDA—Natural Resources Conservation Service.
“Notice of a Finding of No Significant Impact”.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Guidelines (40 CFR 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 Environmental Quality Incentives Program in the Five States Grazing Emphasis Geographic Priority Area, Colfax, Curry, Harding, Lea, Mora, Quay, Roosevelt, San Miguel, Union Counties, New Mexico.
Rosendo Trevino, State Conservationist, Natural Resources Conservation Service, 6200 Jefferson NE, Albuquerque, New Mexico, 87109, telephone (505) 761-4400.
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, Rosendo Trevino, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.
The measure concerns a plan for land cover improvement. The planned works of improvement involve brush management, grazing management, and facilitating practices.
The Finding of No Significant Impact (FNSI) has been forwarded to the Environmental Protection Agency and to various Federal, State, and local agencies and interested parties. A limited number of copies of the FNSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment are on file and may be reviewed by contacting Rosendo Trevino.
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
Amtrak Reform Council.
Notice of Special Public Business Meeting in Washington, D.C., and a Special Outreach Hearing for the New England states in Burlington, VT.
As provided in Section 203 of the Amtrak Reform and Accountability Act of 1997 (Reform Act), the Amtrak Reform Council (ARC) gives notice of a special public two-day meeting of the Council. The first day of the meeting will be a public business meeting at which the Council will receive presentations on Florida's state rail program for the development of passenger rail services; developments in financing rail passenger rail equipment; and Amtrak's marketing strategy and its relation to the Corporation's strategic business plan. (Portions of this discussion may be closed to the public if issues requiring the discussion of proprietary information are raised.). The Council staff will also discuss its progress in implementing the Council's work plan for FY 2000.
On the second day the Council will hold an Outreach Hearing for the New England states to discuss Amtrak's services in New England outside of rail services on the Northeast Corridor. The Council has invited various state transportation officials, rail corridor officials, and Amtrak executives. They will discuss aspects of current and future intercity railroad passenger service in New England outside of the Northeast Corridor.
The Business Meeting will be held on Monday, July 17, 2000 from 9:00 a.m. to 5:00 p.m. The Council will hold its Outreach Hearing in Burlington, VT on Tuesday, July 18, 2000 from 9:00 a.m. to 3:00 p.m. Both the Business Meeting and Hearing are open to the general public unless propriety information is introduced.
The July 17, 2000, Business Meeting will take place Room 2230 in the headquarters of Department of Transportation (Nassif Building), 400 Seventh Street, SW, Washington, DC 20590. The July 18, 2000, Outreach
Deirdre O'Sullivan, Amtrak Reform Council, Room 7105, JM-ARC, 400 Seventh Street, SW, Washington, DC 20590, or by telephone at (202) 366-0591; FAX: 202-493-2061. For information regarding ARC's upcoming events, the agenda for meetings, the ARC's First Annual Report, information about ARC Council Members and staff, and much more, you can also visit the Council's website at www.amtrakreformcouncil.gov.
The ARC was created by the Amtrak Reform and Accountability Act of 1997 (Reform Act), as an independent commission, to evaluate Amtrak's performance and to make recommendations to Amtrak for achieving further cost containment, productivity improvements, and financial reforms. In addition, the Reform Act provides: that the Council is to monitor cost savings from work rules established under new agreements between Amtrak and its labor unions; that the Council submit an annual report to Congress that includes an assessment of Amtrak's progress on the resolution of productivity issues; and that, after a specified period, the Council has the authority to determine whether Amtrak can meet certain financial goals specified under the Reform Act and, if it finds that Amtrak cannot, to notify the President and the Congress.
The ARAA prescribes that the Council is to consist of eleven members, including the Secretary of Transportation and ten others nominated by the President and the leadership of the Congress. Members serve a five-year term.
The United States Chemical Safety and Hazard Investigation Board announces that it will convene a Public Meeting beginning at 9 a.m. local time on July 18, 2000, at the Paterson, New Jersey, City Hall Council Chambers, Third Floor, 155 Market Street, Paterson, New Jersey.
The purpose of the meeting is to allow the CSB Investigation team to present to the Board, in open session, its findings of fact concerning the April 1998 explosion at Morton Specialty Chemical's Paterson facility.
The meeting will be open to the public, and public comments will be accepted following the presentation by investigators.
For more information, please contact the Chemical Safety and Hazard Investigation Board's Office of External Relations, (202) 261-7600, or visit our website at:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed information 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 this continuing information collection, 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 September 8, 2000.
Direct all written comments to Linda Engelmeier, Departmental Forms Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington, DC 20230 (or via Internet at lengelme@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Robert Sadler, Southeast Regional Office, 9721 Executive Center Drive, St. Petersburg, Florida 33702, phone 727-570-5326.
This mandatory reporting requirement expires November 30, 2000, and is being renewed under authority of 50 CFR Part 622.4. The wreckfish fishery for the South Atlantic is managed under an Individual Transferable Quota System. Under this system fishermen are issued a share of the fishery and an individual annual quota. Shares are issued by certificate and may be bought and sold. Buying and selling of shares are not completed until the transfer is recorded by the National Marine Fisheries Service (NMFS). The information in this collection is necessary so the NMFS can record the sale and thereby monitor the fishery to provide for better conservation and management.
When shares in the wreckfish fishery are sold, information concerning the sale is recorded on the back of the share certificate and sent to the NMFS. The transfer of ownership is recorded and new share certificates issued.
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 (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 respondents, 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed information 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 September 8, 2000.
Direct all written comments to Linda Engelmeier, Departmental Forms Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington, DC 20230 (or via Internet at lengelme@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Patsy A. Bearden, National Marine Fisheries Service, Alaska Region, P.O. Box 21668, Juneau, Alaska 99802, telephone number 907-586-7008.
Existing recordkeeping and reporting requirements for participants in the groundfish fisheries of the exclusive economic zone off Alaska (Bering Sea and Aleutian Islands and the Gulf of Alaska) would be revised to require owners of catcher/processors and motherships to complete the State of Alaska, Department of Fish and Game (ADF&G) Commercial Operator's Annual Report (COAR), which provides information on ex-vessel and first wholesale values for statewide fish and shellfish products. This information currently is submitted to ADF&G by shoreside processors under State of Alaska regulations. The intent of this data collection is to require at-sea groundfish processors to submit these reports as well.
ADF&G would provide the COAR to each mothership and catcher/processor on an annual basis to collect information from the previous year. The completed COAR and certification page would be sent by the processor to ADF&G for computer data entry. If no receipt or production took place, the processor would submit only a certification page that indicates no receipt or production took place for that year. Use of the COAR information would be coordinated between NMFS and the State of Alaska.
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 (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 respondents, 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.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs increasing guaranteed access levels.
July 10, 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.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.
Upon the request of the Government of the Dominican Republic, the U.S. Government has agreed to increase the current Guaranteed Access Levels for textile products in Categories 338/638, 339/639 and 633.
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 and man-made fiber textile products, produced or manufactured in the Dominican Republic and exported during the twelve-month period which began on January 1, 2000 and extends through December 31, 2000.
Effective on July 10, 2000, you are directed to increase the Guaranteed Access Levels for the categories listed below for the period beginning on January 1, 2000 and extending through December 31, 2000.
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,
Department of the Air Force, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Headquarters Air Force Recruiting Service announces the proposed extension of a currently approved public information collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by September 8, 2000.
Written comments and recommendations on the proposed information collection should be sent to Department of Defense, HQ AFRS/RSOC, 550 D Street West, Suite 1, Randolph AFB, TX 78150-4527.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address, or call HQ AFRS/RSOC, Officer Accessions Branch, at (210) 652-4334.
Respondents are civilian and active-duty candidates applying for a commission in the United States Air Force. These forms provide pertinent information to facilitate selection of candidates for a commission.
Department of the Navy, DOD.
Notice.
The Naval Research Advisory Committee will meet to discuss basic and advanced research and technology. All sessions of the meetings will be devoted to briefings, discussions and technical examination of information related to an assessment of current and projected operational requirements, deficiencies and vulnerabilities of the Navy and Marine Corps command and control systems in order to recommend a Department of the Navy strategy for developing a next generation maritime command and control capability, and an examination of quality of work life issues for Sailors and Marines in order to anticipate what they will be for the 21st century and recommend Navy and Marine Corps responses to the new challenges.
The meetings will be held on Monday, July 17 through Friday, July 21, 2000, from 8 a.m. to 5 p.m.; Monday, July 24 through Thursday, July 27, 2000, from 8 a.m. to 5 p.m.; and Friday, July 28, 2000, from 8:30 a.m. to 12 p.m.
The meeting will be held at the Space and Naval Warfare Systems Center San Diego, 53560 Hull Street, San Diego, California.
Diane Mason-Muir, Program Director, Naval Research Advisory Committee, 800 North Quincy Street, Arlington, VA 22217-5660, (703) 696-6769.
This notice of meetings is provided in accordance with the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2). All sessions of the meetings will be devoted to briefings, discussions and technical examination of information related to an assessment of command and control technical options, including technical risk/benefits and functional ramifications; examination of lessons learned from the naval operating forces in the context of network-centric options; identification of information infrastructure framework to support advanced command, control communications, computers, intelligence, surveillance and reconnaissance (C4ISR) concepts and mission capabilities; identification of emerging science and technology opportunities to meet joint command center C4ISR requirements; assessment
Department of Education.
The Leader, Regulatory Information Management, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before August 9, 2000.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Wai-Sinn Chan, Acting Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW, Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address Wai-Sinn_L._Chan@omb.eop.gov.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 1.
Burden Hours: 9.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at (202) 708-6287 or via her internet address Sheila_Carey@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Office of Postsecondary Education, Education.
This notice announces the next hearing of the Web-based Education Commission. Notice of this hearing is required under Section 10 (a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public of their opportunity to attend this hearing.
The hearing will be held on July 19-20, 2000. The session on July 19 is scheduled for 1 p.m.-5 p.m. The session on July 20 is scheduled for 9 a.m.-12 noon. Both sessions will be held on Capitol Hill in room 628 of the Dirksen Senate Office Building.
David Byer, Executive Director, Web-based Education Commission, U.S. Department of Education, 1990 K Street, NW, Washington, DC 20006-8533. Telephone: (202) 219-7045. Fax: (202) 502-7675.
The Web-based Education Commission is authorized by Title VIII, Part J of the Higher Education Amendments of 1998, as amended by the Fiscal 2000 Appropriations Act for the Departments of Labor, Health, and Human Services, and Education, and Related Agencies. The Commission is required to conduct a thorough study to assess the critical pedagogical and policy issues affecting the creation and use of web-based and other technology-mediated content and learning strategies to transform and improve teaching and achievement at the K-12 and postsecondary education levels. The Commission must issue a
The July 19-20 hearing will cover a range of higher education technology-related issues. The hearing will examine online access, courses and programs, accreditation and assessment, distributive learning, costs and financial assistance, postsecondary education regulations, faculty issues, and the postsecondary education marketplace.
The hearing is open to the public. Records are kept of all Commission proceedings and are available for public inspection at the office of the Web-based Education Commission, Room 6131, 1990 K Street, NW, Washington, DC 20006-8533, from the hours of 9 a.m. to 5:30 p.m.
Assistance to Individuals With Disabilities: The hearing site is accessible to individuals with disabilities. Individuals who will need an auxiliary aid or service to participate in the hearing (
Electronic Access to This Document: 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 previously mentioned sites. If you have questions about using the PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area, at (202) 512-1530.
The official version of this document is the document published in the
Department of Education.
Notice; deadline and submission dates for receipt of applications, reports, and other documents for the 2000-2001 award year.
The Secretary announces the deadline and submission dates for receiving documents from persons applying for assistance under the Federal Perkins Loan, Federal Work-Study (FWS), Federal Supplemental Educational Opportunity Grant (FSEOG), Federal Family Education Loan (FFEL), William D. Ford Federal Direct Loan (Direct Loan), Federal Pell Grant, and Leveraging Educational Assistance Partnership (LEAP) programs for the 2000-2001 award year.
The Federal Perkins Loan, FWS, FSEOG, FFEL, Direct Loan, Federal Pell Grant, and LEAP programs, administered by the U.S. Department of Education (Department), provide assistance to students attending eligible institutions of higher education to help them pay for their educational costs.
The following table provides the earliest submission and deadline dates for submitting Federal Pell Grant Disbursement Records to the Department's Recipient Financial Management System (RFMS). The 2000-
Table B provides the earliest date an institution can submit a disbursement record to the Department. Any disbursement record received prior to the earliest submission date is rejected. Table B also includes the latest date an institution may submit a disbursement record. The Department may impose an adverse action such as a fine or other penalty for an institution's failure to submit a Federal Pell Grant disbursement record within the required 30-day timeframe. Also, failing to submit a disbursement record within the required 30-day timeframe may result in an audit or program review finding for an institution.
The Department accepts as proof of delivery, if the documents were submitted by mail or by non-U.S. Postal Service courier, one of the following:
(1) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(2) A legibly-dated U.S. Postal Service postmark.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method of proof of mailing, check with the post office at which the submission was mailed. The Department strongly encourages the use of First Class Mail.
(3) A dated shipping label, invoice, or receipt from a commercial courier.
(4) Other proof of mailing or delivery acceptable to the Secretary.
When submitting a written request for administrative relief, the Department accepts commercial couriers or hand deliveries between 8 a.m. and 4:30 p.m. Eastern Time, Monday through Friday except Federal holidays. The address for hand deliveries is listed in Table B.
A more detailed discussion of the student application process for the Federal Pell Grant Program is contained in the
The following regulations apply: (1) Federal Pell Grant Program, 34 CFR part 690, (2) Student Assistance General Provisions, 34 CFR part 668, and (3) Institutional Eligibility, 34 CFR part 600.
Jacquelyn C. Butler, Program Specialist, U.S. Department of Education, Office of Student Financial Assistance Programs, 400 Maryland Avenue, SW (ROB-3, Room 3045), Washington, DC 20202-5447. Telephone: (202) 708-8242. Individuals who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternate format (
You may view this document in text or Adobe Portable Document Format (PDF) on the Internet at the following sites:
The official version of this document is the document published in the
20 U.S.C. 421-429, 1070a, 1070b-1070b-3, 1070c-1070c-4, 1071-1087-2, 1087a, and 1087aa-1087ii; 42 U.S.C. 2751-2756b.
Take notice that on June 28, 2000, El Paso Natural Gas Company (El Paso) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, the following tariff sheets, with an effective date of July 1, 2000:
El Paso states that the filing is being made in compliance with the Commission's order issued November 10, 1999 at Docket No. RP95-363-002,
El Paso states that the filing implements the pro forma tariff rates and provisions applicable to South California Edison Company contained in El Paso's August 4, 1999 Offer of Settlement.
Any person desiring to protest this filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed as provided in Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice that on June 29, 2000, Koch Gateway Pipeline Company (Koch) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets, to become effective July 31, 2000.
Koch states that it is proposing to create a new auction process for its
Koch states that copies of this filing have been served upon Koch's customers, state commissions and other interested parties.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
MultiFuels Marketing Company (MultiFuels) submitted for filing a rate schedule under which MultiFuels will engage in wholesale electric power and energy transactions as a marketer. MultiFuels also requested waiver of various Commission regulations. In particular, MultiFuels requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by MultiFuels.
On June 27, 2000, pursuant to delegated authority, the Director, Division of Corporate Applications, Office of Markets, Tariffs, and Rates, granted requests for blanket approval under Part 34, subject to the following:
Within thirty days of the date of the order, any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by MultiFuels should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214).
Absent a request for hearing within this period, MultiFuels is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful objective within the corporate purposes of MultiFuels, and compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of MultiFuels issuances of securities or assumptions of liability.
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is July 27, 2000.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, N.E., Washington, D.C. 20426. The Order may also be viewed on the Internet at
Take notice that on June 29, 2000, Reliant Energy Gas Transmission Company (REGT), 111 Louisiana Street, Houston, Texas 77002-5231, filed a request with the Commission in Docket No. CP00-398-000, pursuant to Section 157.205, 157.211 and/or 157.216(b) of the Commission's Regulations under the Natural Gas Act (NGA) for authorization to abandon certain facilities in Arkansas authorized in blanket certificates issued in Docket Nos. CP82-384-000 and CP82-384-001, all as more fully set forth in the request on file with the Commission and open to public inspection. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
REGT proposes to abandon Line KM-50, in its entirety, in Union County, Arkansas. REGT proposes to sell and transfer this line at net book value to Reliant Energy Arkla, a distribution division of Reliant Energy Incorporated (Arkla). Arkla will operate this segment of line as part of its low pressure distribution system. Net book value of this 2-inch line is $6,418.
Any person or the Commission's staff may, within 45 days after the Commission has issued this notice, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the Regulations under the NGA (18 CFR 157.205) a protest to the request. If no protest is filed within the allowed time, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the NGA.
Unicom Energy, Inc. (Unicom) filed with the Commission a rate schedule in the above-captioned proceeding, under which Unicom will engage in wholesale electric power and energy transactions at market-based rates, and for certain
The Commission's June 28, 2000 Order granted, approved Unicom's request for blanket approval under Part 34, subject to the conditions found in Appendix B in Ordering Paragraphs (2), (3), and (5):
(2) Within 30 days of the date of this order, any person desiring to be heard or to protest the Commission's blanket approval of issuances of securities or assumptions of liabilities by Unicom should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.211 and 385.214.
(3) Absent a request to be heard within the period set forth in Ordering Paragraph (2) above, Unicom is hereby authorized to issue securities and assume obligations and liabilities as guarantor, indorser, surety or otherwise in respect of any security of another person; provided that such issue or assumption is for some lawful object within the corporate purposes of the Unicom, compatible with the public interest, and reasonably necessary or appropriate for such purposes.
(5) The Commission reserves the right to modify this order to require a further showing that neither public nor private interests will be adversely affected by continued Commission approved of Unicom's issuances of securities or assumptions of liabilities.* * *
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is July 28, 2000.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, N.E., Washington, D.C. 20426. This issuance may also be viewed on the Internet at
Take notice that the following filings have been made with the Commission:
Take notice that on June 28, 2000, FPL Energy Cape, LLC, 100 Middle Street, Portland Maine 04101, filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
FPL Energy Cape, LLC, a Delaware limited liability company proposes to engage in the business of owning and operating the Cape Station, consisting of two combustion turbine units in South Portland, Maine. The Maine Public Utilities Commission has found that allowing these facilities to be eligible facilities will benefit consumers, is in the public interest and does not violate state law.
Take notice that on June 29, 2000, Automated Power Exchange, Inc. (APX) tendered for filing a revised annual report for 1999.
Take notice that on June 30, 2000, Allegheny Electric Cooperative, Inc. (Allegheny), tendered for filing in the above-referenced docket a complaint under Section 206 of the Federal Power Act against Pennsylvania Electric Company (Penelec) concerning the wholesale rates and charges Penelec collects from Allegheny pursuant to a 1993 Wheeling and Supplemental Power Agreement between Allegheny and Penelec.
Take notice that on June 29, 2000, Nevada Power Company (Nevada Power) and Sierra Pacific Power Company (Sierra), tendered for filing pursuant to Section 205 of the Federal Power Act and the Commission's Order in the above-referenced proceeding dated May 31, 2000, nine revised Transition Power Purchase Contracts that will apply to sales from the divested generation to Nevada Power and Sierra. The revisions are intended to comply with the requirement in the Commission's May 31, Order regarding the notice that must be given of the amount of capacity taken under the contracts. With respect to four of the contracts, the revisions also include language designed to implement the Request for Rehearing of the May 31, Order filed by Nevada Power and Sierra.
Take notice that on June 28, 2000, Alcoa Power Generating Inc. (APGI) tendered for a filing service agreement between Aquila Energy Marketing Corporation and APGI under APGI's Market Rate Tariff No. 1 (MR-1). This Tariff was accepted for filing by the Commission on July 13, 1999, in Docket No. ER99-2932-000.
The service agreement with Aquila Energy Marketing Corporation is proposed to be effective June 1, 2000.
Take notice that on June 28, 2000, Southwest Power Pool, Inc. (SPP), on behalf of its members, tendered for filing an executed signature page to the SPP Membership Agreement signed by Southwestern Public Service Company (SPS), and revised sheets to its currently
SPP requests an effective date of June 29, 2000 for these changes.
Copies of this filing have been served on all affected state commissions, SPP customers and SPP members.
Take notice that on June 28, 2000, Entergy Services, Inc., on behalf of Entergy Gulf States, Inc., tendered for filing an Interconnection and Operating Agreement with The Goodyear Tire & Rubber Company (Goodyear), and a Generator Imbalance Agreement with Goodyear.
Take notice that on June 28, 2000, Avista Corporation (AVA) tendered for filing with the Federal Energy Regulatory Commission (Commission) pursuant to Section 35.12 of the Commission's Regulations, 18 CFR Part 35.12, an executed Net Settlement Agreement with Engage Energy US, L.P.
Avista Corporation (AVA) requests that the Net Settlement Agreement be made effective April 1, 2000.
A copy of this filing has been served upon Engage Energy US, L.P.
Take notice that on June 28, 2000, MidAmerican Energy Company (MidAmerican), 666 Grand Avenue, Suite 2900, Des Moines, Iowa 50309, filed with the Commission a First Amendment to the Power Sales Agreement Between MidAmerican Energy Company and Waverly Light and Power (Amendment), dated February 10, 1999, entered into by MidAmerican and the Municipal Electric Utility of Waverly, Iowa, pursuant to MidAmerican's Service Agreement No. 12 with Waverly, effective February 1, 1997, and pursuant to MidAmerican's Rate Schedule for Power Sales, FERC Electric Tariff, Original Volume No. 5.
MidAmerican requests an effective date of June 29, 2000 for the Amendment and seeks a waiver of the Commission's notice requirement.
MidAmerican has served a copy of the filing on the Municipal Electric Utility of Waverly, Iowa, the Iowa Utilities Board, the Illinois Commerce Commission and the South Dakota Public Utilities Commission.
Take notice that on June 28, 2000 Florida Power & Light Company (FPL) filed a Service Agreement with City of Lakeland, Florida for service pursuant to Tariff No. 1 for Sales of Power and Energy by Florida Power & Light and a Service Agreement with Allegheny Energy Supply Company, LLC for service pursuant to FPL's Market Based Rates Tariff.
FPL requests that the Service Agreements be made effective on June 1, 2000.
Take notice that on June 28, 2000, Commonwealth Edison Company (ComEd) tendered for filing an executed service agreement for Central Illinois Light Company (CILCO) under ComEd's FERC Electric Market Based-Rate Schedule for power sales.
ComEd requests and effective date of May 30, 2000 for the service agreement and accordingly seeks waiver of the Commission's notice requirements.
Copies of this filing were served on CILCO.
Take notice that on June 28, 2000, CinCap VIII, LLC (CinCap VIII) and Cinergy Capital & Trading, Inc. (CC&T), tendered for filing a Master Power Purchase and Sale Agreement dated June 1, 2000 under which CinCap VIII and CC&T may sell and purchase electric power pursuant to their respective rate schedules authorizing them to sell power at market-based rates.
Take notice that on June 28, 2000, Commonwealth Edison Company (ComEd) tendered for filing agreements establishing Peoples Energy Services Corporation (Peoples), as a customer under ComEd's FERC Electric Market Based-Rate Schedule for power sales.
ComEd requests an effective date of June 6, 2000 for the agreement and accordingly seeks waiver of the Commission's notice requirements.
Copies of the filing were served on Peoples.
Take notice that on June 28, 2000, New Century Services, Inc. (NCS), on behalf of Cheyenne Light, Fuel and Power Company, Public Service Company of Colorado, and Southwestern Public Service Company (SPS) (collectively the NCE Operating Companies), filed amended tariff sheets to the NCE Operating Companies' open-access transmission tariff (NCE Tariff). NCS states that the purpose of the filing is to amend the NCE Tariff to make clear that it does not apply to transmission service on the SPS transmission system that will be available under the Southwest Power Pool open-access transmission tariff.
NCS requests that the revised tariff sheets be made effective on June 29, 2000.
Take notice that on June 28, 2000, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Company, LLC (Allegheny Energy Supply Company) filed Second Revised Service Agreement No. 3 to complete the filing requirement for one (1) new Customer of the Market Rate Tariff under which Allegheny Energy Supply offers generation services. The Service Agreement portion of Second Revised Service Agreement No. 3 will maintain the effective date of November 29, 1999, in accordance with the Commission's Order at Docket No. ER00-907-000.
Allegheny Energy requests a waiver of notice requirements to make the Netting Agreement effective as of May 2, 2000 to DTE Energy Trading, 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 June 29, 2000, Rockingham Power, L.L.C., tendered for filing a long-term power sales agreement between Rockingham Power, L.L.C. and Duke Power, a Division of Duke Energy Corporation, to be in effect as of May 30, 2000.
Take notice that on June 29, 2000, PPL Electric Utilities Corporation d/b/a PPL Utilities (formerly known as PP&L, Inc.), tendered for filing notice of cancellation of the Power Sales Tariff—Market Rates Service Agreement, dated June 15, 1998, between American Electric Power Service Corporation (as agent for the AEP Companies) and PPL Utilities.
PPL Utilities requested an effective date of this cancellation of August 28, 2000.
Notice of the proposed cancellation has been served upon American Electric Power Service Corporation.
Take notice that on June 29, 2000, the Western Systems Coordinating Council (WSCC), tendered for filing with the Commission an First Amendment to the Reliability Criteria Agreement under the WSCC's Reliability Management System. The amendment modifies the time period under the Disturbance Control Standard to fifteen minutes.
The WSCC requests that the Commission make such amendment effective July 1, 2000.
Take notice that on July 29, 2000, Wisconsin Public Service Corporation (WPSC), tendered for filing an executed Non-Firm Point-to-Point Transmission Service Agreement with The Legacy Group, LLC providing for transmission service under FERC Electric Tariff, Volume No. 1.
WPSC requests that the agreement be accepted for filing and made effective on June 27, 2000.
Take notice that on June 29, 2000, Avista Corp. (AVA), tendered for filing with the Federal Energy Regulatory Commission executed Service Agreements for Short-Term Firm and Non-Firm Point-To-Point Transmission Service under AVA's Open Access Transmission Tariff—FERC Electric Tariff, Volume No. 8 with Public Service Company of Colorado.
AVA requests the Service Agreements be given a respective effective date of June 12, 2000.
Take notice that on June 29, 2000, Wisconsin Public Service Corporation (WPSC), tendered for filing an executed Firm Transmission Service Agreement with Public Service of Colorado providing for transmission service under FERC Electric Tariff, Volume No. 1.
WPSC requests that the agreement be accepted for filing and made effective on June 27, 2000.
Take notice that on June 29, 2000, Wisconsin Public Service Corporation (WPSC), tendered for filing an executed Firm Transmission Service Agreement with The Legacy Group, LLC providing for transmission service under FERC Electric Tariff, Volume No. 1.
WPSC requests that the agreement be accepted for filing and made effective June 27, 2000.
Take notice that on June 29, 2000, Wisconsin Electric Power Company (Wisconsin Electric), tendered for filing an electric service agreement under its Market Rate Sales Tariff (FERC Electric Tariff, Original Volume No. 8) with Conectiv Energy Supply, Inc.
Wisconsin Electric respectfully requests an effective date of June 16, 2000 to allow for economic transactions.
Copies of the filing have been served on Conectiv Energy Supply, Inc., the Michigan Public Service Commission, and the Public Service Commission of Wisconsin.
Take notice that on June 29, 2000, Wisconsin Electric Power Company (Wisconsin Electric), tendered for filing notice that effective June 30, 2000, Service Agreement No. 20, effective August 22, 1995 under Wisconsin Electric Power Company's Coordination Sales Tariff, FERC Electric Tariff First Revised Volume 2 is to be canceled as requested by the customer Utility 2000 Energy Corp. (U2K).
Copies of the filing have been served on U2K Michigan Public Service Commission, and the Public Service Commission of Wisconsin.
Take notice that on June 29, 2000, PJM Interconnection, L.L.C. (PJM), tendered for filing changes to the PJM Open Access Transmission Tariff (PJM Tariff) and the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C., to permit and accommodate requests to schedule and dispatch generation to meet voltage limits more restrictive than that which PJM determines is required for the reliable operation of transmission system in the PJM control area.
Copies of this filing were served upon all members of PJM and each state electric utility regulatory commission in the PJM control area.
Take notice that on June 29, 2000, PJM Interconnection, L.L.C. (PJM), tendered for filing changes to the PJM Open Access Transmission Tariff (PJM Tariff) to add a new Section 2.3 setting forth procedures for transmission customers to exercise the transmission reservation priority rights specified in Section 2.2 of the PJM Tariff.
Copies of this filing were served upon all members of PJM and each state electric utility regulatory commission in the PJM control area.
Take notice that on June 29, 2000, PJM Interconnection, L.L.C. (PJM), tendered for filing an executed service agreement for network integration transmission service under the PJM Open Access Transmission Tariff with Conectiv Energy Supply, Inc. (Conectiv).
Copies of this filing were served upon Conectiv and the state commissions within the PJM control area.
Take notice that on June 29, 2000, Williams Energy Marketing & Trading Company (Williams EM&T), tendered for filing pursuant to Section 205 of the Federal Power Act (FPA), 16 U.S.C. § 824d (1994), and Part 35 of the Commission's Regulations, 18 CFR 35, its Fourth Revised FERC Electric Rate Schedule No. 1.
The primary purpose of this filing is to clarify that Williams EM&T has authority to sell wholesale ancillary services to entities located in California that do not self-supply ancillary services to the California Independent System Operator Corporation (CAISO).
Take notice that on June 29, 2000, Sierra Pacific Power Company (Sierra) and Nevada Power Company (Nevada Power), tendered for filing pursuant to Section 205 of the Federal Power revised tariff sheets applicable to their Joint Open Access Transmission Tariff. Certain of the revisions are intended to revise the charges for Energy Imbalances and to provide for Generation Imbalance Service.
Sierra and Nevada Power request that these changes be made effective as of July 1, 2000. Sierra and Nevada Power also have filed Generation Interconnection Procedures, which they request be made effective September 1, 2000.
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, N.E., Washington, D.C. 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 Federal Energy Regulatory Commission and is available for public inspection:
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Commission, 888 First Street, NE, Washington, D.C. 20426. Please include the Project No. (2954-020) on any comments or motions filed.
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
Filing and Service of Responsive Documents—Any filings must bear in all capital letters that title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. 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. A copy of any 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.
The following notice of meeting is published pursuant to section 3(a) of the Government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C. 552B:
Items listed on the agenda may be deleted without further notice.
This is a list of matters to be considered by the Commission. It does not include a listing of all papers relevant to the items on the agenda; however, all public documents may be examined in the Reference and Information Center.
Environmental Protection Agency (EPA).
Notice.
In its efforts to reduce risk from pesticide exposure, EPA on occasion has made agreements with pesticide registrants to cap the annual production of a particular pesticide active ingredient. In an August 1999 Memorandum of Agreement (MOA) between EPA and the registrants of azinphos-methyl (AZM), the total volume of AZM available for use each year was capped. In the MOA, a temporary approach for allocating the cap among the producers of AZM was agreed upon for 2000 with the understanding a clear mechanism for allocating the cap would be in place for subsequent years. Because EPA has restricted the quantities of certain pesticides in the past and may do so in the future, the Agency agreed to hold a public meeting to get input on establishing a mechanism for accomplishing this and any future chemical-specific quantity limits. The purpose of this notice is to announce a public meeting to discuss mechanisms for chemical-specific quantity limits and to solicit comment on EPA's preliminary thinking on the allocation of chemical-specific quantity limits.
Comments, identified by docket control number OPP-00666, must be received on or before August 24, 2000.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Richard Dumas, Special Review and Reregistration Division, 7508C, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8015; fax number: (703) 308-8041; e-mail address: dumas.richard@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to pesticide registrants, pesticide user groups, and environmental groups. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is
1.
2.
3.
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 disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this notice.
8. 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
1.
2.
In the MOA, a temporary approach for allocating production among the producers of technical grade AZM was agreed upon for 2000 with the understanding that EPA would reexamine the allocation of AZM production under the cap for subsequent years. Because persons other than the present AZM registrants may have interests in the allocation of AZM production, and because chemical-specific quantity limits may be used for other pesticides in the future, the Agency agreed to hold a public meeting to get input on mechanisms for implementing chemical-specific quantity limits. Below are the characteristics that the Agency believes are needed for any chemical-specific quantity limit and some preliminary ideas on the issues that the Agency needed feedback.
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FIFRA section 3(c)(5)(D) allows the Administrator to register a pesticide only upon finding that the pesticide when used in accordance with widespread and commonly recognized practice will not generally cause unreasonable adverse effects on the environment. In instances where a pesticide causes adverse effects that closely approach being unreasonable, and which would become unreasonable if the pesticide were more widely used, limitations to prevent the pesticide from becoming more widely used may be necessary to maintain registration. Measures which would limit the total quantity applied are therefore consistent with EPA's statutory authority. Special Review and Reregistration Division, Office of Pesticide Programs.
Environmental protection, Pesticide production caps
Environmental Protection Agency.
Notice of Peer-Review Panel Workshop.
The U.S. Environmental Protection Agency (EPA) is announcing that Versar, Inc., an EPA contractor for external scientific peer review, will organize, convene, and conduct an external peer-review panel workshop to review the external review draft document titled,
The peer-review panel workshop will be held Wednesday, July 26, 2000, from 8:30 a.m. until 5:00 p.m. and Thursday, July 27, from 8:30 a.m. until Noon. Members of the public may attend as observers, and there will be a limited time for comments from the public.
The external peer-review panel workshop will be held at the Crystal City Marriott Hotel, 1999 Jefferson Davis Highway, Arlington, Virginia. Versar, Inc., an EPA contractor, is organizing, convening, and conducting the peer-review workshop. To attend the workshop, please register by July 24, 2000, by calling Mr. Amanjit Paintal, Versar, Inc., 6850 Versar Center, Springfield, VA 22151 at 703-750-3000 extension 449, or send a facsimile to 703-642-6954. You can also register via email at paintama@versar.com. Space is
The draft guidance document on ecological soil screening levels is available on the Internet at http://www.epa.gov/superfund/programs/risk/tooleco.htm. A limited number of paper copies are available from Versar. If you are requesting a paper copy, please provide your name, mailing address, and the document title,
For workshop information, registration, and logistics, contact Mr. Amanjit Paintal, Versar, Inc., 6850 Versar Center, Springfield, VA 22151, at 703-750-3000 extension 449 or via email at paintama@versar.com.
For technical information, contact Steve Ells, OSWER, telephone: 703-603-8822, facsimile: 703-603-9100, e-mail: ells.steve@epa.gov; or Randy Wentsel, ORD, telephone: 202-564-3214, facsimile: 202-565-0050, e-mail: wentsel.randy@epa.gov.
The purpose of the document is to put forward procedures to develop scientifically sound, ecologically based, soil screening levels that are protective of the terrestrial environment for up to 24 chemicals of concern. As part of the process, methodologies and models that use site-specific exposure data to modify these screening levels are presented.
Although several different entities (Oak Ridge National Laboratory, the Canadian Council of Ministers of the Environment, the Dutch National Institute of Public Health and the Environment, and the Ontario Ministry of Environment and Energy) have developed sets of soil screening levels, benchmarks, or preliminary remediation goals for many contaminants, EPA has not embraced any specific approach for use nationally at all Superfund sites. Although some EPA Regional Offices, Federal agencies, states and contractors use one or more of these approaches, many do not and instead perform literature searches for toxicity data on each of the chemicals of potential concern and develop site-specific soil concentrations to be used as screening levels for the site under investigation. This repetitious approach can be very costly and time-consuming.
In order to improve national consistency and to conserve resources, an effort was made to form a multi-stakeholder process to develop scientifically sound, ecologically-based, soil screening levels, and many have participated, e.g., EPA, DoD, DOE, states, industry, and consultants. This collaborative project is expected to result in a Superfund guidance document that includes generic ecological soil screening levels (Eco-SSLs) for up to 24 chemicals that are frequently of ecological concern at Superfund sites. These Eco-SSLs will be soil concentrations that are expected to be protective of the mammalian, avian, plant, and soil invertebrates communities that could be exposed to the chemicals of concern. These Eco-SSLs will be conservative in order to be confident that chemicals that could present an unacceptable risk are not screened out early in the risk assessment process. The process used to develop this first set of Eco-SSLs can also be used to develop additional screening levels for other chemicals.
The participants produced draft Eco-SSLs for mammals, birds, plants, and soil biota. The plant and soil biota values were developed from available plant and soil invertebrate toxicity test data. The mammal and bird benchmarks were back-calculated from a hazard quotient of 1.0 using animal toxicity data and a small number of generic food chain models. The lowest reasonable Eco-SSL for each chemical will then be used to screen chemicals found at sites. These generic (i.e., not site-specific) Eco-SSLs will be used during Step 2 of the Superfund Ecological Risk Assessment (ERA) process (Ecological Risk Assessment Guidance for Superfund; Process for Designing and Conducting Ecological Risk Assessments, 1997), when there often are only limited site-specific data available. These levels represent a set of screening ecotoxicity values that can be used routinely to identify those chemicals of potential concern (COPCs) in soils requiring further evaluation in a baseline ecological risk assessment; they are not national cleanup standards.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given of a change in location for the Science Advisory Board's (SAB's) Executive Committee meeting scheduled for Wednesday and Thursday, July 12-13, 2000. This meeting was previously noticed in 65 FR 39614, June 27, 2000. The only change from that previous notice is the meeting location. Both days of the meeting will now be held at the US Environmental Protection Agency, Environmental Research Center (ERC), Highway 54 and T.W. Alexander Drive, Research Triangle Park, NC. On July 12, the meeting will be in ERC Classroom Two, and on July 13, the meeting will be in ERC Classroom One. The meeting will convene each day at 8:30 am and adjourn no later than 5:30 pm. All times noted are Eastern Daylight Time. The meeting is open to the public, however, seating is limited and available on a first come basis.
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-954, must be received on or before August 9, 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
By mail: Treva C. Alston, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8373; e-mail address: alston.treva@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
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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-954 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 disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. 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 the petitions contain data or information regarding the elements set forth in
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 petitioner. 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 a pesticide petition PP 0E6098 from Huntsman Petrochemical Corporation, 3040 Post Oak Blvd., Houston TX 77056 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR part 180 to establish an exemption from the requirement of a tolerance for poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
1.
i. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
ii. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
iii. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
iv. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
v. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
vi. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
vii. The number average molecular weight of poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
viii. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
ix. Poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
2.
1.
ii.
2.
There is no reasonable expectation of any increased risk due to cumulative exposure to poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
1.
2.
Huntsman is not aware of any country requiring a tolerance for poly(oxy-1,2-ethanediyl), α-(2-methyl-1-oxo-2-propenyl)-
EPA has received a pesticide petition PP 0E6099 from Huntsman Petrochemical Corporation, 3040 Post Oak Blvd., Houston, TX 77056 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR part 180 to establish an exemption from the requirement of a tolerance for 2,5-furandione, polymer with (1-methylethenyl)benzene, sodium salt for use as a surfactant in formulations when used in accordance with good agricultural practices as an inert ingredient in pesticide formulations applied to growing crops or on the RAC after harvest. 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.
1.
i. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt is not a cationic polymer, nor is it capable of becoming a cationic polymer in the natural aquatic environment.
ii. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt contains, as an integral part of its composition, the atomic elements carbon, hydrogen, oxygen and monovalent sodium.
iii. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250 (d)(2)(iii).
iv. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt is not designed, nor is it reasonably anticipated to substantially degrade, decompose, or depolymerize.
v. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt is not manufactured from monomers and/or other reactants that are not already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
vi. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt is not a water absorbing polymer with a number average molecular weight greater than or equal to 10,000.
vii. The number average molecular weight of 2,5-furandione, polymer with (1-methylethenyl)benzene, sodium salt is 15,000. Substances with molecular weights greater than 400 generally are not absorbed through the intact skin, and substances with molecular weights greater than 1,000 generally are not absorbed through the intact GI tract. Chemicals not absorbed through the skin or GI tract generally are incapable of eliciting a toxic response.
viii. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt contains less than 0.1% oligomeric material below 1,000 molecular weight. The amount of oligomeric material less than 500 molecular weight is essentially nil.
ix. 2,5-Furandione, polymer with (1-methylethenyl)benzene, sodium salt does not contain reactive functional groups.
2.
1.
ii.
2.
There is no reasonable expectation of any increased risk due to cumulative exposure to 2,5-furandione, polymer with (1-methylethenyl)benzene, sodium salt since polymers with molecular weights greater than 400 generally are not absorbed through the intact skin, and substances with molecular weights greater than 1,000 generally are not absorbed through the intact GI tract. Chemicals not absorbed through the skin or GI tract generally are incapable of eliciting a toxic response.
1.
2.
Huntsman is not aware of any country requiring a tolerance for 2,5-furandione, polymer with (1-methylethenyl)benzene, sodium salt, nor have there been any CODEX maximum residue levels established for any food crops at this time.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9601
Comments must be submitted on or before August 9, 2000.
The proposed settlement is available for public inspection at U.S. EPA, Region 5, 77 W. Jackson Boulevard, Chicago, IL 60604. A copy of the proposed agreement may be obtained from Richard R. Wagner, at U.S. EPA, Region 5, 77 W. Jackson Boulevard (C-14J), Chicago, IL 60604, phone (312) 886-7947. Comments should reference the Green Industries Corporation prospective purchaser agreement, and should be addressed to Richard R. Wagner.
Richard R. Wagner, at U.S. EPA, Region 5, 77 W. Jackson Boulevard (C-14J), Chicago, IL 60604, phone (312) 886-7947.
Environmental Protection Agency.
Notice of Proposed Settlement.
The Environmental Protection Agency is proposing to enter into a settlement with the BMI Textron Corporation for response cost pursuant to Section 122(h)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9622(h)(1) concerning the BMI Textron Site located in Lake Park, Florida.. EPA will
Written comments may be submitted to Ms. Batchelor within 30 calendar days of the date of this publication.
Environmental Protection Agency.
Notice of Proposed Settlement.
The Environmental Protection Agency is proposing to enter into a settlement with Mr. Marshall J. Williams and Williams Paving Company, LLC for response costs pursuant to section 122(h)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9622(h)(1) concerning the Chemfax Resin Superfund Site located in Gulfport, Harrison County, Mississippi. EPA will consider public comments on the proposed settlement for thirty (30) days. EPA may withdraw from or modify the proposed settlement should such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper or inadequate. Copies of the proposed settlement are available from:
Ms. Paula V. Batchelor, U.S. EPA, Region 4, (WMD-CPSB), 61 Forsyth Street, S.W., Atlanta, Georgia 30303, (404) 562-8887.
Written comments may be submitted to Ms. Batchelor within 30 calendar days of the date of this publication.
The Sub-Saharan Africa Advisory Committee was established by Pub. L. 105-121, November 26, 1997, to advise the Board of Directors on the development and implementation of policies and programs designed to support the expansion of the Bank's financial commitments in Sub-Saharan Africa under the loan, guarantee and insurance programs of the Bank. Further, the committee shall make recommendations on how the Bank can facilitate greater support by U.S. commercial banks for trade with Sub-Saharan Africa.
Wednesday, July 19, 2000, at 9 a.m. to 1 p.m. The meeting will be held at the Export-Import Bank in Room 1143, 811 Vermont Avenue, NW, Washington, DC 20571.
This meeting will include an update on telecommunications and technology and a discussion on the Africa Growth and Opportunities Act in Sub-Saharan Africa.
The meeting will be open to public participation, and the last 10 minutes will be set aside for oral questions or comments. Members of the public may also file written statement(s) before or after the meeting. If any person wishes auxiliary aids (such as a sign language interpreter) or other special accommodations, please contact, prior to July 14, 2000, Teri Stumpf, Room 1215, Vermont Avenue, NW, Washington, DC 20571, Voice: (202) 565-3502 or TDD (202) 565-3377.
For further information, contact Teri Stumpf, Room 1215, 811 Vermont Ave., NW, Washington, DC 20571, (202) 565-3502.
Federal Communications Commission.
Notice.
In this document, the Commission grants the section 271 application of Southwestern Bell (SWBT) for authority to enter the interLATA toll market in the State of Texas. The Commission grants SWBT's application based on our conclusion that SWBT has satisfied all of the statutory requirements for entry, and opened its local exchange markets to full competition.
Effective date of approval of section 271 application is July 10, 2000.
Audrey Wright or William Dever, Attorneys, Policy and Program Planning Division, Common Carrier Bureau, at (202) 418-1580, or via the Internet at
This document is a brief description of the Commission's Memorandum Opinion and Order adopted June 30, 2000, and released June 30, 2000. The full text also may be obtained through the World Wide Web, at
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6. SWBT also offers interconnection in Texas to other telecommunications carriers at just, reasonable, and nondiscriminatory rates, in compliance with checklist item 1. SWBT offers interconnection at the total element, long-run incremental cost (TELRIC)-based rates that are just, reasonable, and nondiscriminatory, pursuant to our rules. SWBT complies with our rules because it pro-rates its site preparation charges and allocates them according to our rules.
7. SWBT meets the standards for interim collocation rates set forth in our order approving Bell Atlantic's section 271 application.
8.
9. As an initial matter, SWBT demonstrates that it provides documentation and technical assistance necessary for new entrants to connect with its OSS, and a change management process that provides information necessary for competing carriers to modify their systems and procedures when SWBT changes its OSS. With respect to pre-ordering, or the activities that a competing carrier undertakes to gather and verify the information necessary to place an order, SWBT demonstrates (primarily through evidence of actual commercial usage) that it has deployed operationally ready interfaces and systems that offer nondiscriminatory access to pre-ordering OSS functions. Specifically, SWBT's pre-ordering interfaces and systems enable competing carriers to
10. In terms of the interfaces and systems that enable competing carriers to place an order for service, SWBT demonstrates through performance data and third-party testing that it its systems return timely order confirmation and rejection notices, provide jeopardy and order completion notification, flow through a high percentage of orders without manual handling, and are capable of handling reasonably foreseeable demand volumes. In terms of provisioning, performance data demonstrates that SWBT provisions orders for competing carriers' customers in substantially the same time and manner that it provisions orders for its own retail customers.
11. In addition, with respect to maintenance and repair, SWBT demonstrates through commercial usage that its interfaces and systems enable competing carriers to create, modify, and cancel trouble tickets, and to request that SWBT test a customer's circuit, in substantially the same time and manner as SWBT's retail operations. Similarly, SWBT resolves problems associated with customers of competing carriers in substantially the same time and manner and at the same level of quality that it performs repair work for its own customers. Finally, with respect to billing, SWBT demonstrates that it provides complete and accurate reports on the service usage of competing carriers' customers in the same manner that SWBT provides such information to itself.
12. Pursuant to this checklist item, SWBT must also provide nondiscriminatory access to network elements in a manner that allows other carriers to combine such elements. Based on evidence of actual commercial usage, and upon SWBT's legal obligations under interconnection agreements offered in Texas, SWBT demonstrates that it provides to competitors combinations of already-combined network elements as well as nondiscriminatory access to unbundled network elements in a manner that allows competing carriers to combine those elements themselves.
13. We also find that SWBT satisfies the pricing requirements of checklist item 2. In fulfilling its obligations under this checklist item, SWBT demonstrates that it provides nondiscriminatory access to unbundled network elements (UNEs) at any technically feasible point at rates, terms and conditions that are just, reasonable, and nondiscriminatory. This checklist item ensures that new entrants are not placed at a competitive disadvantage due to discriminatory prices for network elements.
14. We do not find that the SWBT's assessment of nonrecurring charges on UNE orders causes it to fail this checklist item. First, we find that the a central office access charge (COAC) is not subject to the Commission's forward-looking methodology because the Supreme Court held only that incumbent local exchange carriers (LECs) cannot separate already combined elements before providing them, not that they must combine separate UNEs.
15. We reach the same conclusion regarding SWBT's interim rates for charges relating to the installation and conditioning of xDSL-capable loops. The Texas Commission is now conducting a proceeding to set permanent xDSL rates based on cost studies that SWBT submitted at the direction of the Texas Commission arbitrator, and this interim solution is reasonable under the circumstances. We also find that SWBT's promotional discounts on unbundled loop and platform orders for telecommunications carriers serving residential customers arise out of SBC's merger with Ameritech and do not cause it to fail this checklist item. We also found that these promotional offerings are offered to all telecommunications carriers on a nondiscriminatory basis.
16.
17.
18. SWBT provides evidence and performance data establishing that it can efficiently furnish unbundled loops, for the provision of both traditional voice services and various advanced services, to other carriers in a nondiscriminatory manner. More specifically, SWBT establishes that it provides coordinated cutovers of voice grade loops,
19. SWBT also demonstrates that it provides DSL-capable loops to competing carriers in a nondiscriminatory manner. Specifically, SWBT demonstrates that for both DSL and BRI loops used for advanced services, SWBT provides timely advanced services order processing and installation comparable to that which it provides SWBT retail advanced services customers. For both DSL and BRI loops, SWBT also demonstrates that it provides maintenance and repair functions for competing carriers in substantially the same time and manner that it provides such services for SWBT retail customers. In addition, SWBT demonstrates that it provides high capacity loops (
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27.
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29. We believe that SWBT has made a concerted effort to resolve a traffic reporting dispute it has had with competing carriers, has continued to exchange traffic records with carriers during the course of this dispute, and has implemented a reasonable interim traffic reporting mechanism while industry groups work toward a permanent industry-wide solution. We
30.
31.
32.
33. Among other factors, we may review the local and long distance markets to ensure that there are not unusual circumstances that would make entry contrary to the public interest under the particular circumstances of this Application. We find that, consistent with our extensive review of the competitive checklist, barriers to competitive entry in the local market have been removed and the local exchange market today is open to competition. We also find that the record confirms our view that a Bell Operating Company's (BOC's) entry into the long distance market will benefit consumers and competition if the relevant local exchange market is open to competition consistent with the competitive checklist.
34. Another factor that could be relevant to our analysis is whether we lack sufficient assurance that markets will remain open after grant of the application. We find that the performance monitoring and enforcement mechanisms developed in Texas, in combination with other factors, provide meaningful assurance that SWBT will continue to satisfy the requirements of section 271 after entering the long distance market. Where, as here, a BOC relies on performance monitoring and enforcement mechanisms to provide such assurance, we review the mechanisms involved to ensure that they are likely to perform as promised. We conclude that these mechanisms have a reasonable design and are likely to provide incentives sufficient to foster post-entry checklist compliance.
35.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 1:30 p.m. on Monday, July 10, 2000, the Federal Deposit Insurance Corporation's Board of Directors will meet in closed session, pursuant to sections 552b(c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of Title 5, United States Code, to consider matters relating to the Corporation's supervisory, corporate, and receivership activities.
The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550—17th Street, NW, Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at (202) 898-6757.
Federal Election Commission.
Notice.
The Commission has adopted a policy statement that provides guidance to candidates and political party committees on the status of certain civil enforcement actions under the Federal Election Campaign Act pending Supreme Court resolution of the issues presented in the Tenth Circuit's decision in
June 20, 2000.
Louise Wides, Assistant Staff Director,
In a split decision, the United States Court of Appeals for the Tenth Circuit recently held that 2 U.S.C. 441a(d)(3), which limits the amount of a political party's coordinated expenditures in congressional elections, violates the First Amendment.
Only the Tenth Circuit has found section 441a(d)(3) unconstitutional, and its decision is not controlling outside that court's geographic jurisdiction. Furthermore, if the United States Supreme Court overrules the Tenth Circuit, the Court's decision upholding section 441a(d)(3) will apply retroactively to any activities in the interim that violate section 441a(d)(3), even in the Tenth Circuit.
Notice and request for comments.
The Federal Emergency Management Agency has submitted the following proposed information collection to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).
Interested persons are invited to submit written comments on the proposed information collection to the Desk Officer for the Federal Emergency Management Agency, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 within 30 days of the date of this notice.
Requests for additional information or copies of the information collection should be made to Muriel B. Anderson, Chief, Records Management Branch, Program Services Division, Operations Support Directorate, Federal Emergency Management Agency, 500 C Street, SW, Room 316, Washington, DC 20472, telephone number (202) 646-2625, FAX number (202) 646-3524, or e-mail address: muriel.anderson@fema.gov.
Notice and request for comments.
The Federal Emergency Management Agency has submitted the following proposed information collection to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).
Interested persons are invited to submit written comments on the proposed information collection to the Desk Officer for the Federal Emergency Management Agency, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 within 30 days of the date of this notice.
Requests for additional information or copies of the information collection should be made to Muriel B. Anderson, Chief, Records Management Branch, Program Services Division, Operation Support Directorate, Federal Emergency Management Agency, 500 C Street, SW,
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Minnesota (FEMA-1333-DR), dated June 27, 2000, and related determinations.
June 27, 2000
Madge Dale, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
Notice is hereby given that, in a letter dated June 27, 2000, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Minnesota, resulting from severe storms and flooding on May 17, 2000, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance and Hazard Mitigation in the designated areas and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance or Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint Theodore Monette of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Minnesota to have been affected adversely by this declared major disaster:
Dodge, Faribault, Fillmore, Freeborn, Houston, Mower, and Winona Counties for Public Assistance.
All counties within the State of Minnesota are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster for the State of Minnesota (FEMA-1333-DR), dated June 27, 2000, and related determinations.
June 30, 2000.
Madge Dale, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
The notice of a major disaster for the State of Minnesota is hereby amended to include Individual Assistance for the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 27, 2000:
The counties of Becker, Clay, Norman and Mahnomen and the White Earth Indian Reservation for Individual Assistance and Public Assistance.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of North Dakota (FEMA-1334-DR), dated June 27, 2000, and related determinations.
June 27, 2000.
Madge Dale, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
Notice is hereby given that, in a letter dated June 27, 2000, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
I have determined that the damage in certain areas of the State of North Dakota, resulting from severe storms, flooding, and ground saturation beginning on June 12, 2000, and continuing is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance, Public Assistance, and Hazard Mitigation in the designated areas. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance or Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint Steven R. Emory of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of North Dakota to have been affected adversely by this declared major disaster:
Benson, Bottineau, Cass, Eddy, Foster, Grand Forks, Griggs, Kidder, McHenry, McLean, Nelson, Pierce, Ramsey, Ransom, Sheridan, Traill, Walsh, Wells, and the Indian Reservations of the Spirit Lake Tribal Reservation and the Turtle Mountain Band of Chippewa for Individual Assistance.
Bottineau, Cass, Eddy, Foster, Grand Forks, Griggs, Kidder, McHenry, McLean, Nelson, Pierce, Ransom, Sheridan, Traill, Walsh, Wells, and the Indian Reservations of the Spirit Lake Tribal Reservation and the Turtle Mountain Band of Chippewa for Public Assistance.
All counties within the State of North Dakota are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Wisconsin (FEMA-1332-DR), dated June 23, 2000, and related determinations.
June 23, 2000.
Madge Dale, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
Notice is hereby given that, in a letter dated June 23, 2000, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Wisconsin, resulting from severe storms, flooding and tornadoes on May 26, 2000, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance and Hazard Mitigation in the designated areas and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance or Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint James Roche of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Wisconsin to have been affected adversely by this declared major disaster:
The counties of Adams, Crawford, Dane, Grant, Green, Iowa, Juneau, Lafayette, Monroe, Richland, Sauk, and Vernon for Public Assistance.
All counties within the State of Wisconsin are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster for the State of Wisconsin, (FEMA-1332-DR), dated June 23, 2000, and related determinations.
June 30, 2000.
Madge Dale, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
The notice of a major disaster for the State of Wisconsin is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 23, 2000:
The counties of Columbia, Kenosha, Jackson and Walworth for Public Assistance.
Federal Emergency Management Agency (FEMA).
Notice of change to cost share policy.
We (FEMA) are standardizing the cost share for the Emergency Management Performance Grant in order to bring about a fair and equitable distribution of grant funds and cost-share requirements among the States.
The cost share change is effective October 1, 2000 for FY 2001 grants.
Jonna M. Long, Federal Emergency Management Agency, 500 C Street SW., room 717, Washington, DC 20472, telephone (202) 646-7057; facsimile (202) 646-4157; or email jonna.long@fema.gov.
In FY 2000, we consolidated funding for certain non-disaster programs into the Emergency Management Performance Grant (EMPG). Programs consolidated include State and Local Assistance (SLA); Superfund Amendments and Reauthorization Act (SARA) Title III; Mitigation Assistance Program (MAP); Disaster Preparedness Improvement Grants (DPIG); Pre-disaster Mitigation (Project Impact) to States; and Terrorism Consequence Management Preparedness Assistance (TCMPA).
We offered the grants in FY 2000 at composite cost shares based on the cost share policies associated with the programs consolidated into the EMPG. The composite cost shares for the non-terrorism portion of the EMPG ranged from approximately 51 percent Federal/49 percent State to approximately 54 percent Federal/46 percent State. The TCMPA portion was 100 percent federally-funded.
The composite cost shares were dependent upon which of the six programs a State participated in before consolidation, and for some programs how many years a State participated. The result of this varied participation by States is that the consolidation process has the potential to lock-in an uneven distribution of cost-share requirements.
We used the composite cost shares during the transition from the multiple programs to the unified EMPG. To complete the transition, and in order to bring about a fair and reasonable distribution of the funds for emergency management, we are phasing in implementation of a Federal cost share of 50 percent that will apply equally to all States for the non-TCMPA portion of the EMPG. This will be more equitable and easier to manage than previously, both at the Federal and State levels. States will have a simpler and more predictable means of planning for their share of the costs of emergency management than now, which will help their long-term budgeting process. The complete phase-in of the standard cost share will take approximately four years, with some States arriving at the 50 percent level each year.
The TCMPA portion will continue to be 100 percent federally-funded.
For FY 2001 grants, we will pay a cost share one percentage point less than the composite share that we paid in 2000. For example, if a particular State's EMPG was shared in FY 2000 at 52 percent Federal/48 percent State, in FY 2001 the grant will be shared at 51 percent Federal/49 percent State. Such phasing in of the standard cost share will ease the financial burden to the State (by avoiding too large an adjustment in any one year) and will enable it to budget better for outyear cost shares.
P.L. 106-74, the Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 2000, 113 Stat. 1086.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 3, 2000.
In connection with this application, Applicants also have applied to acquire Keystone CDC, Inc., and thereby engage in community development activities, pursuant to § 225.28(b)(12) of Regulation Y; Keystone Financial Life Insurance Company, and thereby engage in credit life and disability life reinsurance activities related to home equity loan products, pursuant to § 225.28(b)(11) of Regulation Y; Keystone Financial Mid-Atlantic Funding Corporation, and thereby engage in issuing medium-term debt instruments, pursuant to § 225.28(b)(1) of Regulation Y; Martindale Andres &
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 4, 2000.
Board of Governors of the Federal Reserve System, July 5, 2000.
Board of Governors of the Federal Reserve System.
4 p.m., Thursday, July 13, 2000.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, N.W., Washington, D.C. 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Lynn S. Fox, Assistant to the Board; 202-452-3204.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at http://www.federalreserve.gov for an electronic announcement that not only lists applications, but also indicates procedural and other information about the meeting.
Office of the Secretary, HHS.
Notice.
The Health Insurance Portability and Accountability Act of 1996, (Section 1172 (f), Subtitle F of Pub. L. 104-191), requires the Secretary of Health and Human Services to publish in the
Under the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Secretary of Health and Human Services is required to adopt standards for specified administrative health care transactions to enable information to be exchanged electronically, as well as security standards. The law requires that, within 24 months of adoption, all health plans, health care clearinghouses and health care providers who choose to conduct these transactions electronically must comply with these standards. In addition, the law outlined a process leading to the development of standards to protect the privacy of individually identifiable health information.
In preparing these reports and recommendations, the Secretary is required to consult with the NCVHS, the statutory public advisory body to HHS on health data, privacy and health information policy. On February 7, 2000 the Committee submitted a set of public comments on the Notice of Proposed Rulemaking issued by HHS entitled “Standards for the Privacy of Individually Identifiable Health Information.”
In accordance with the law, the full text of the NCVHS comments is published below.
February 7, 2000, U. S. Department of Health and Human Services, Assistant Secretary for Planning and Evaluation, Attention: Privacy-P, Room G-322A, Hubert H. Humphrey Building, 200 Independence Avenue SW, Washington, D. C. 20201.
On behalf of the National Committee on Vital and Health Statistics (NCVHS), I am pleased to forward to you our recommendations on the notice of proposed rule-making for standards for
While the scope of the proposed rule addresses many health information privacy issues, it should be noted that there is still a need for anti-discrimination legislation. The NCVHS previously urged the Secretary to propose legislation expanding the anti-discrimination provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to cover all aspects of discrimination based on health status and condition.
While the proposed rule meets the requirements of HIPAA, the NCVHS strongly believes that there is a need for comprehensive federal legislation to address the privacy of individually identifiable health information. The proposed rule is limited in scope and does not cover all records or all entities with access to individually identifiable health information.
The NCVHS agrees that the scope of the rule should be extended to all individually identifiable health information, including purely paper records. The privacy regulations should be uniform across all forms of identifiable health information and across all holders of such information. Having uniform regulations apply to all medical records would simplify the burden for covered entities to comply with.
The NCVHS also recommends that HHS use all available authority (or all available means to extend HHS authority) to try to achieve uniform regulations across medical records, types of records, and types of covered entities. For example, the conditions of participation under Medicare and Medicaid could be utilized to achieve uniform regulation.
The definition of protected health information raises serious problems outside the treatment and payment process. Within the treatment and payment process, we can safely assume that all information about data subjects is protected health information. As a result, we do not encounter major line drawing problems. However, for employers or life insurers, the same assumption does not work. These non-medical record keepers routinely maintain other, non-health, information on individuals. How can they tell when personal information is protected health information within the meaning of the rule? Schools would present the same problem, except that the rules unfortunately and inappropriately exempt most schools from the health privacy rules altogether. We believe that there is a lot of confusion in the definition and this needs to be clarified.
The definition of health plan excludes health care payment under property and casualty insurance. Putting aside the issue of workers compensation, the definition creates a significant loophole for insurers who want to avoid the scope of the privacy rules in order to use health information for marketing or other uses unrelated to health. From the perspective of a patient, the nature of the policy is not relevant. When a casualty insurance company pays for health care, the patient will think that the company looks the same as other insurance companies. Yet the rule denies a patient privacy rights for property and casualty insurance information. Sometimes, treatment may continue while the ultimate source of payment (property policy vs. health policy) remains unknown, perhaps for months or years. Will information be subject to the privacy rule in the interim, and how will covered entities or others know?
Workers compensation is a complex subject that requires special treatment and reasonable accommodation. However, like other casualty insurance, it is not entitled to a complete exemption. The Department should not evade its responsibility to address these difficult issues by simply exempting them. If necessary, a separate and subsequent rulemaking should consider how to meet confidentiality interests of patients while allowing workers' compensation to be administered efficiently.
The definition of designated record set has two fundamental problems. First, record keepers will find it impossible to determine how to apply this term under the privacy rule. Second, the definition relies upon an outmoded and discredited concept from the Privacy Act of 1974. The Privacy Protection Study Commission recommended abandoning the “retrieved in fact” standard in the Privacy Act of 1974 more than twenty years ago. We believe that this definition will be difficult to operationalize and recommend that this definition should be revisited.
The definition of individual excludes foreign military and foreign diplomatic personnel and their dependents. The commentary offers no adequate justification for this exclusion. If it only applied to records maintained directly by the federal government, then the problems inflicted by the exclusion would fall exclusively on the federal government. But it includes care paid for by the Department of Defense, and this means providers, plans, and clearinghouses will have some records. This is a specific problem which needs to be addressed in the rule.
The term research information unrelated to treatment is not clear. The need for the term is elusive. There is an inability to understand the point of the term and its associated substantive provision. Regular research information is subject to IRB oversight. This category of research information is apparently not. The recognition of two separate categories of research information is confusing and potentially troublesome. There is a need for more explanation. The NCVHS recommends that there be no distinction in the categories of research. All research should be treated the same.
The definition of treatment includes disease management as an included function. Disease management is not a defined term and this creates one of the biggest loopholes in the rule. Protected health information could be disclosed to virtually anyone—including marketers and employers—under the guise of disease management. It is essential that this loophole be closed. The potential breadth of the term is evident from a definition recently adopted by the Disease Management Association of America:
Disease management is a multidisciplinary, continuum-based approach to health care delivery that proactively identifies populations with, or at risk for, established medical conditions that: supports the physician/patient relationship and plan of care; emphasizes prevention of exacerbations and complications utilizing cost-effective evidence-based practice guidelines and patient empowerment strategies such as self-management education; and continuously evaluates clinical, humanistic, and economic outcomes with the goal of improving overall health.
It is difficult to imagine any privacy-invasive use or disclosure of patient information that could not be justified as disease management under this definition. The definition fails to recognize that patient privacy and patient consent are relevant limiting factors in disease management activities. We do not recommend the adoption of this definition in the
There was a divergence of opinion among the Committee regarding informed consent versus statutory authorization. Concern was expressed that statutory authorization undercut traditional codes of medical ethics and that informed consent should be preserved. However, many NCVHS members felt that statutory authorization provided a better, more uniform level of protection than the case by case application of informed consent. Some NCVHS members expressed concern that the proposed rules will interfere with good clinical care. The issue of how much access physicians should have to the records of non-patients and whether consent is required needs to be clarified.
The NCVHS supports the concept of minimum necessary use and disclosure. The Committee, however, would add an additional standard: minimum identifiable form. Minimum identifiable form would limit the amount of identifiable data. For example, rather than using name, one would use another identifier. Therefore, any use or disclosure would be the minimum amount of protected health information necessary to accomplish the intended purpose of use or disclosure in a minimum identifiable form.
Statutorily mandated public health requests are recurring and routine and involve a broad range of information for epidemiological investigations. This rule should not unduly interfere with these requests. These requests are established by a state law and rules that are published with public comment. This requirement should also not require duplication between tasks that are already accomplished by an IRB and Privacy Board approved research. It does not make sense to ask a covered entity to create (or contract) with an IRB or privacy board and then also have to review the board's findings itself.
The covered entity is not likely to have the expertise needed to make fine distinctions regarding minimum necessary in the research context. The regulation could accomplish their purpose by simply requiring covered entities to verify that the research received IRB (or privacy board) approval.
Several members of the NCVHS recommend exempting treatment from the concept of minimum necessary use and disclosure. Some members believe that the concept is appropriate for treatment, payment and health care operations.
The following language is a suggested addition to the minimum necessary rule:
All procedures and policies that covered entities develop should take into consideration the minimum necessary principle. However this rule should never compromise patient safety, and requests for protected data for patient treatment, and operations and payment and public health should be exempted from the requirement of individual application of this rule to each specific request. Further research requests will be deemed to have satisfied these requirements if the covered entity has verified receipt of the signed approval of an IRB or privacy board.
The choice made by the rule to allow disclosures without authorization for payment and treatment is a compromise that only works if the small percentage of patients who want additional restrictions on routine disclosures can be reasonably accommodated. Giving individuals a realistic opportunity to seek restrictions on payment and treatment disclosures authorized by the rule is crucial. However, the proposed rule does not strike an adequate balance.
A health plan or provider might simply refuse all patient requests for additional restrictions because of a plan's or provider's noncompliance or administrative convenience. The commentary goes too far in telling covered entities that they can decline to even consider requests. Nevertheless, patients still need more consideration of their requests.
The solution is to require that covered entities negotiate with patients over disclosure restrictions in good faith and that they must provide a written reason for rejecting the request of a patient. Fairer negotiations and clearer explanations will provide those patients whose requests cannot reasonably be accommodated with an opportunity to make other arrangements for their health care.
Covered entities should also be required to keep track of how they handle patient requests for restrictions so that HHS can review the degree of good faith shown in handling requests. Without a record-keeping requirement, those at HHS charged with enforcement may be unable to determine if an entity treats patients' requests fairly and honorably.
The regulations could use further clarity defining what rules apply to what data. How do the rules about de-identified data interact with the rules about research and the rules about minimum necessary? If research is done on de-identified data is it exempt from all requirements? Are requests for de-identified data exempt from all reviews related to minimum necessary? The introductory section suggests that none of the other rules apply to de-identified data but it would be good to see that stated explicitly.
This section is confusing. Why is an exemption made to communications related to consultations and referrals for treatment under this section? The goal obviously is to facilitate traditional clinical communications. We would have presumed that this exemption was already provided by the exemption for treatment, operation and payment purposes. If this exemption is needed for consultations and referrals then it is also needed for a host of many other clinical communications between business partners,
The requirement to control information received from the covered entity for the purpose of consultation and treatment could be very difficult to implement. It is understandable why special protection might be required, but a consulting physician's history and physical, recorded as narrative (often dictated) text, will intermingle with the narrative information they obtain from the referring physician. How would one segregate the information obtained from the referring MD from that collected by the consult when it is buried in pure narrative text. Further, if read literally, the rule would preclude the sharing of such data with the physician who takes night call for the consulting physician. This also suggests that the broad example given for the sharing of data for patient care does not apply in many care situations.
The constraint would be more easily applied if the treating physician's summary of such data rolled into their
Covered entities disclose protected health information to many different business partners. Written contracts are appropriate for many of these disclosures in the way that the rule provides. However, the same procedure is not appropriate or practical for all relationships. For example, patient records may technically be “disclosed” to companies providing telephone service, delivery service (the law protects Postal Service mail against opening for inspection, but courier services have no similar legal restrictions), Internet service, credit card support, equipment repair, financial audits and legal service. Records may even be “disclosed” to moving companies hired to haul boxes from one location to another.
Telling each covered entity to negotiate an agreement with every company providing routine, standard services is unnecessary. The Department should identify as many standard disclosures as possible and should develop language that meets the requirements and intent of the privacy rule for service providers to incorporate in standard contracts. This will avoid the need for tens of thousands of individual negotiations. The idea is similar to the proposal to exempt disclosures for consultations for treatment. A similar approach for selected other disclosures will be the most efficient way of solving common problems and will reduce the costs of compliance significantly. It will also benefit contractors who will not find it necessary to repeat identical negotiations with their subcontractors.
The collection of authorizations for marketing uses and disclosures is fraught with potential abuses. In the past, disclosure of patient information for marketing purposes was unethical. The demands of marketers combined with the allure of profits for record keepers and growth of health plans that operate without any of traditional provider ethical constraints have significantly weakened disclosure standards to the detriment of patients. An unfortunate consequence of standardizing procedures for authorizations may be that demands on patients for marketing authorizations will increase as covered entities learn how to pressure patients into signing authorizations.
The Department should use the rule to stop the trend toward increased trafficking by marketers in patient data. Most patients strongly object to marketing activities based on identifiable patient data, but sick or inattentive individuals may not be able to understand or resist pressure from health plans or others to sign authorizations for marketing. One easy change is to expressly prohibit any clearinghouse from seeking patient authorization for marketing disclosures.
For plans and providers, there are several ideas. First, a covered entity should be prohibited from seeking consent from patients for any marketing disclosures that benefit a third party. Third parties that want patient information for marketing should be forced to obtain the authorizations directly from patients and without the assistance or intervention of a covered entity. The purpose is to remove any incentive that a plan or provider might have to do business with marketers.
Note that this suggestion applies only to disclosures and not to uses. A covered entity that seeks to market its own products or services directly to patients should be able to do so with notice and consent. However, any use that involves a disclosure of any type to a third party should not be permitted. Further, the marketing use must be for a service or product provided directly by the covered entity and not by the affiliated company. This type of restriction is necessary to prevent consumer marketing companies or others from purchasing health care providers just for the ability to access patient records for marketing purposes.
Second, it is not sufficient for an authorization to reveal that the covered entity requesting the authorization will gain financially from the disclosure. The identity of the person providing the financial incentive should be included on the authorization, along with the amount of the financial gain. If these requirements inhibit the marketing uses of identifiable health information, that would be appropriate.
Third, the rule should require full public disclosure of all marketing arrangements between covered entities and others. The details should be disclosed on the website of the covered entity or available upon the request of any person. If disclosure inhibits a covered entity from seeking authorizations for marketing, so much the better. No one should be permitted to hide a marketing campaign based on identifiable patient information behind a business confidentiality screen. Here too, the goal should be to discourage marketing using identifiable patient information.
Fourth, the rule should provide that all authorizations for marketing expire in six months. A short, fixed period for these authorizations is essential so that a casual agreement by a patient in a weak or confused moment will not result in a lifetime of marketing disclosures by an avaricious covered entity.
Additionally, accounting for marketing disclosures should include not only the person who received the information but the actual party in interest as well. For example, if a pharmacy disclosed patient data to a lettershop for a marketing campaign funded by a drug manufacturer, the accounting should identify both the lettershop and the manufacturer. Telling the patient that the XYZ Lettershop received the data is not as meaningful as telling the patient that the ABC Pharmaceutical Company benefited from the disclosure.
The proposed rule states that a covered entity may not condition treatment or payment on a patient's authorization. This is a step in the right direction, but it does not go far enough. The rule does not prohibit the use of financial incentives to induce a patient to sign an authorization. For example, a health plan could offer a discount to patients who sign an authorization. If allowed, financial incentives could be used unfairly. For example, a health plan could establish a high copayment but reduce it drastically for patients who sign an authorization. This conduct should be prohibited.
The rule does not require the use of a contract between a provider and a pharmaceutical company, but it requested comment on the idea. In our view, a contract that identifies the patient as a third party beneficiary is valuable. At best, the Department's enforcement will be able to identify, investigate and sanction only a small fraction of abuses. By giving patients enforcement rights as third party beneficiaries under contracts, patients will be able to supplement the work of the Department by seeking enforcement of their own rights in court. The rule should not only require contracts with third party beneficiary clauses for arrangements between providers and pharmaceutical companies, but it should require such contracts for all allowable arrangements between covered entities and anyone seeking information for a marketing purpose.
The rule should provide that all authorizations be dated on the day they are signed. No one should be allowed to collect an authorization to become valid on a date in the future to be designated by the person seeking the authorization.
The provision in section 164.508(a)(2)(iv) that prohibits a covered entity from seeking an authorization covering treatment, payment, or health care operations needs to be rethought. At times, a patient or provider may need a signed consent to comply with a state or foreign law, or in other special circumstances. In other cases, a provider (
The definition of health oversight activities includes almost any activity pertaining to government benefit programs. The rule should make it clear that government benefit programs requiring health information about applicants need authorizations. The authority to use health information in the oversight process should not be construed to include the initial collection of benefit information for routine health or welfare programs. Applicants should know when an eligibility decision requires health information. They should be asked to consent. Consent should be the default method for obtaining access to records.
The commentary says that the regulation allowing a health oversight agency to obtain health information does not create any new right of access to records. That point is absent from the rule. It is crucial to make this point clearly in the body of the rule.
Disclosures for health oversight can be a significant invasion of personal privacy. When they are necessary to serve a broader societal interest, patients deserve better protection. Some legislative proposals introduced in recent years include a policy that prevents information disclosed for a purpose such as health oversight from use in any administrative, civil, or criminal action or investigation against the subject of the record unless the action or investigation arises out of and relates to receipt of or payment for health care. It would be appropriate for the Department to include this policy in its rule.
Admittedly, there is some doubt about the authority of the Secretary to impose this type of patient protection through the rule to all oversight agencies. However, the Secretary has more than enough power to order all components of the Department to follow the policy. Accordingly, we recommend that the Secretary issue an administrative order prohibiting all Department components from using any patient records obtained for oversight activities in any administrative, civil, or criminal action or investigation against the subject of the record. It may be appropriate to allow an exception if the action or investigation develops evidence that the patient is engaged in health care fraud or abuse. The same order should cover law enforcement, public health, and other non-consensual disclosures. An administrative order of this type could be issued immediately and without waiting for the privacy rule to take effect.
The proposed rule permits a covered entity to disclose protected health information that relates to a party whose health condition is at issue in a proceeding and where the disclosure is pursuant to a lawful process such as a discovery order. The rule assumes that because the subject of the record is a party to the proceeding, the subject will have notice of discovery orders. This is not always true. The rule needs to be modified to require actual notice to the record subject or to the subject's lawyer. Further, access through this method should be limited to instances in which the record subject placed his or her medical condition or history at issue. If another party to litigation raised a medical question, then the party seeking the record should be required to obtain a court order rather than a routine discovery request.
The rule should establish a process that offers appropriate assurance to record keepers as well as adequate notice to the subject of the record. A person seeking protected health information through discovery should be required to notify the subject or the subject's attorney of the request for information. The person seeking the information should be required to provide the covered entity holding the information with a signed document attesting (1) that the subject of the record is a party to the litigation; (2) that the individual has placed his or her medical condition or history in issue; (3) the date on which the subject of the record received notice of the request; and (4) that ten days have passed after the notice and the subject of the record has not objected.
This procedure will assure that the subject of protected health information receives actual notice of a discovery request and that the subject can object in a timely fashion. Just because litigation involves an individual's medical condition, the individual's entire medical file will not necessarily be relevant. If litigation involves a broken leg, the disclosure of the plaintiff's psychiatric history may not be relevant. The general rule limiting disclosures to the minimum amount of information necessary to accomplish the purpose should be fully applicable. Patients can use the rule to contest the scope of discovery requests. Of course, if a dispute arises over a discovery disclosure, the notice procedure allows the tribunal considering the matter to resolve it without any involvement on the part of the covered entity.
The NCVHS believes that the current proposal for law enforcement access is overly broad. The proposal allows any law enforcement agent to obtain health information without requiring a written request.
The rule should require that any routine request for information from the police be in writing and signed by a supervisory official. The proposed three-part test is useful and should be retained. However, unless law enforcement agencies make their determinations in a written and signed document, the requirement will be an ineffective barrier to appropriate access. An oral representation that the request qualifies under the test has little significance.
Law enforcement agencies should be obliged to state with some precision the information that they require. If the police need only the location of a patient, they should not obtain access to the complete medical record. The police must provide enough information about their needs to allow application of the minimum purpose rule.
The commentary says that substance abuse records continue to be covered by 42 U.S.C. 290dd-2. That statement belongs clearly in the rule itself or else it will create unnecessary confusion.
The rule governing disclosures for intelligence and national security activities needs reconsideration. As written, the provision allows a large number of employees of many different
Nothing in the Privacy Act of 1974 allows such broad and unrestricted access by intelligence agencies to health records or even to less sensitive records about individuals. The intelligence community needs to make its case for access to federally maintained health records in a public way. The rule should be revised to permit disclosures only for those specific needs. Further, all requests for access should be accompanied by a written request signed by a supervisory official of the agency.
The commentary tries to make the case for permitting open-ended authority for the collection of health information for health data systems with a variety of functions. We do not oppose allowing legitimate health data systems to obtain patient information under defined circumstances when information in the data system has adequate protection. The rule, however, imposes no procedural or substantive requirements on disclosures to health data systems. Indeed, the rule allows disclosure of health data for policy, planning, regulatory, or management functions unrelated to health care.
Requiring verification of identity, as provided in section 164.518(c) is appropriate, but the suggestion that verification presents a significant barrier to access is wrong. The standard for access is so broad that dozens of federal and state agencies with no direct health responsibilities could legitimately obtain information. Virtually any government agency in the United States could use this provision to seek health records unless expressly prohibited by law from doing so. Under the verification rule, agency personnel need only show an identification card and orally state that they qualify for access.
The rule needs several changes to address access by agencies that do not have express statutory authority to obtain patient data. First, an agency seeking data should be required to inform the public of its request. Many requests will be routine and continuing so a public notice requirement will not be onerous. The notice should allow for public comment before any actual disclosures. Second, if data collected for a governmental health data system can be used in any way against a patient, then the public notice should be required to explain all of the possible consequences. Third, the requesting agency should be required to make a written request, state the reason for the request, and identify all planned uses of the information. Fourth, the rule should require the removal of identifiers at the earliest opportunity consistent with the purpose of access. Finally, the purposes for authorized disclosure need to be much more carefully defined and limited to health care functions.
The proposed rule is far too impractical. The rule requires agreement by patients. Lawyers are likely to interpret this to require writing. How else can a covered entity document patient approval when a dispute arises? The commentary says that verbal agreement is adequate. The rule itself says no such thing. Even if it did, providers would still face the practical requirement of documenting that the patient was asked. A failure to check a box on an admission form could open providers to liability.
Allowing verbal agreement is impractical in other ways. Spend time in an Emergency Department where dozens of patients await care. When a physician is ready for the next patient, a nurse enters the waiting room and calls the name of the patient. The presence of the patient in an emergency room is directory information, and the announcement is a disclosure. If a patient objected to the release of directory information, then how would the nurse find the next patient?
When disclosing directory information, privacy must yield to the practicalities of the world. Telling emergency department personnel that they must ask each patient for permission to call his or her name will only create burdens and unnecessary liability for providers. The same will be true in any physician's office. It is sufficient to allow a patient with a special concern about directory information to step forward with that concern and make a special arrangement. The Department should reexamine the lesson from the Maine health privacy law that the state legislature withdrew and revised because it imposed impractical limitations on the operations of the health care system. The public will not tolerate a privacy law that is not practical and that imposes unreasonable burdens on patients and their families.
The proposed rule addresses a problem, but the rule is too broad.
Disclosures to a bank or other financial institution without express patient consent should only be permitted after a patient offers a check, credit card or other payment method to the provider. The presentation of a payment method is the moral equivalent of consent for disclosures necessary to complete the transaction. The rule should expressly make payment disclosures contingent on a prior patient action. Presentation of a check or credit card or a standing authorization of a payment method would suffice. However, it should be improper to assume that a patient who previously paid by credit card intended to continue that payment method without evidence supporting the intention.
No provider should be able to query banks or other institutions looking for someone who has funds to pay a bill. Further, the provision should expressly exclude bill collectors from receiving information. Bill collectors should be business partners and fully subject to the rule because of their relationship with providers. Disclosures to credit bureaus by covered entities should require patient consent unless a limited disclosure reveals no protected health information at all. However, a credit card company should be able to disclose an unpaid bill to a credit bureau under applicable law even if the bill covers health care services. A disclosure to the credit bureau would not normally identify the nature of the transaction that gave rise to the debt, unless the credit card is exclusively for health expenses.
Finally, the rule should expressly ban the disclosure to financial institutions of any diagnostic information or other detailed treatment information. If questions arise about a transaction that might justify any detailed disclosure, the patient involvement and express consent should be required. The suggestion in the commentary that disclosures be limited to specific data elements is entirely appropriate, but the rule should expressly list the elements.
For most part, this is a good and well-balanced proposal. However, clarification is needed about how the other rules in this regulation interact with the research rules. There is a potential problem with placing all the burden in the covered entity. That could be a real disincentive for covered entities to participate in research—especially if the covered entity was not
The justification for the additional requirements beyond the existing IRB requirements is also hard to understand. Much traditional medical research involves medical data and often involves medical records. The strong distinction between medical research and medical record research is arbitrary and contrived. Further, most of the “new” and additional requirements are contained in, or implicit to, the existing IRB requirements. Patient confidentiality must always be addressed for current IRB protocols to apply. Finally, the argument that not adding the former new rules to the common rules on the basis of creating differences between IRBs and privacy boards is not convincing. The two are different in many dimensions even after these added requirements.
The business of destroying identifiers is repeatedly described as a good thing. We are unaware of any defense of that position or any experience that suggests destroying such links is good. There are many clinical situations where new information about a patient could interact positively with information previously collected about a patient. With the regulations as it stands we could not. It would be better to find another solution to the previous concern (e.g. require heavy encryption of the entire files when they were no longer needed for the research and leaving the keys in the hands of NIH or some other group).
The rule's next of kin provision is another example of a policy that is impractical. We recommend that next-of-kin disclosures be allowed for oral disclosures of protected health information about an individual to the next of kin or to a person with whom the individual has a close personal relationship if (a) the entity has no reason to believe that the individual would consider the information to be especially sensitive; (b) the individual has not previously objected; (c) the disclosure is consistent with good medical or other professional practice; and (d) the disclosure is limited to information about current health treatment.
Requiring verbal agreement by patients will not work well in the real world. Lawyers for covered entities are still likely to insist on a writing to prove that the entity asked and that the patient agreed. Without documentary evidence, an entity faces the prospect of liability for any disclosure just on procedural grounds.
It is easy to envision circumstances in which the failure to obtain verbal consent will create real world disruptions. The commentary seeks to deal with some (
The special rules provided in this section are too broad, except the rule for the Department of Veterans Affairs. The VA exception is the only one that seems narrow and specifically responsive to an apparent need. In the other cases, the government may have some legitimate needs for access to health records for individuals in the military and intelligence community, and less likely, the Foreign Service. However, the permitted disclosures are too broad and do not include adequate procedural protections for patients.
In most cases, the consent of the record subject should be sought as a first resort, except in emergency circumstances. Only where there is demonstrable reason that consent is inappropriate should the rule authorize other methods of access. The requirement for publication of a notice by the Armed Forces is a step in the right direction, although it does not go far enough by requiring public comment. At a minimum, intelligence agencies and the State Department should be required to publish a similar rule defining the scope and circumstances of access to health records.
The Foreign Service disclosures are especially troublesome. We cannot imagine why the State Department needs to obtain health records of Foreign Service members or of family members of those who may serve abroad without any notice or consent. The State Department has no comparable authority today to obtain health records without consent. If the State Department's current inability to obtain records without consent creates insurmountable difficulties, the case has not been presented publicly. Consent should be the preferred and only method for access for Foreign Service disclosures. The same policy should apply to family members of employees in the intelligence community. If consent for necessary disclosures cannot be obtained, the proper remedy is to deny the foreign assignment. Obtaining information without consent is inappropriate, and it will likely conflict with state laws and policies on confidentiality. Because stronger state laws will continue to apply, the best that this rule could accomplish is to authorize requesting disclosures in some states but not others. Regardless, it is difficult to envision circumstances that would prompt a physician to disclose patient records to the State Department.
Any covered entity that maintains a website for public use should be required to post its current notice of information practices on the web for public inspection. If an entity does not maintain a website, the public posting rule should not apply until the covered entity otherwise establishes a website.
The rule proposes to allow a covered entity to change its notice any time. This is a difficult issue, and the rule takes a practical position. However, the Department should consider efficient ways to make covered entities more accountable for their privacy policies and changes to privacy notices.
First, a covered entity should be required to maintain for public inspection a log of all past notices with changes highlighted. Second, if a covered entity maintains a website for use by patients or the public, it should be required to put a log of all notices and changes on the website. Public disclosure of changes will provide some degree of accountability by inhibiting entities from making unreasonable or unnecessary changes. Third, covered entities that have Internet capabilities should be required to establish listservs for sending email notification of any change to the standard patient notice. Mail notices would probably be too expensive to justify. Email notices would be nearly cost-free.
The rule permits a covered entity to deny access when a disclosure would be reasonably likely to endanger life or physical safety of the individual or another person. We disagree with the
By allowing a covered entity to deny access on the basis that disclosure will harm the subject of the record (no matter the standard), the rule allows for a complex and expensive administrative process. Record keepers may simply refuse all requests until the provider who created the record determines in writing that disclosure will not cause harm. An insurer or health plan that is not a provider could use this excuse to delay or deny all patients with access. Providers who are most capable of making the determination may have no incentive to do so, and they may simply ignore or delay responding to requests from covered entities for opinions. The result will be that any covered entity can use potential harm to the patient as an excuse for not complying with an access request.
The availability of procedural denials and delays creates an opportunity for covered entities to deny patients their rights. If retained, the exception should include these safeguards: (1) The exceptions should be considered to be permanently waived if not properly invoked within thirty days; (2) the rule should expressly provide that the exception cannot be used to withhold an entire record; (3) covered entities should be required to use the exception in good faith; (4) the burden of justifying the exception should expressly belong to the record keeper, and the record keeper should be expressly prohibited from asking the record subject to obtain approval from previous providers; and (5) all determinations of harm must be made by health professionals who must be identified by name if an individual is denied access to a record on the basis of a finding of harm.
By creating an exception that requires record keepers to exercise judgment, the rule creates an unnecessary liability. Covered entities that receive requests will worry that they will be liable if a disclosure results in harm, no matter how unlikely it may be. A rule that did not allow for an exception based on harm to the record subject would not present the same concern about liability. The result would be a simpler administrative process, more ready patient access, and less stress for covered entities.
The rule permits a covered entity to charge a reasonable, cost-based fee for copying. The rule should be more specific. We have enough experience from the early days of the Freedom of Information Act to know that a loosely drafted fee schedule will result in high fees that impede access to records. A fee that is three times the direct and indirect cost may qualify as “cost-based” and still be excessive. We suggest that the fee be limited so that it does not exceed the lowest standard charge imposed by the covered entity for providing copies in other circumstances. In the alternative, the fee should be limited to direct costs of copying under a published fee schedule.
The rule does not require disclosure to the record subject of any accounting records for disclosures for treatment, payment, and health care operations. If audit trails of disclosures for treatment, payment, and health care operations exist, then record subjects should have the right to see the audit trails. Some institutions already maintain complete audit trails, and there is no reason to deny record subjects access to the trails when they exist.
Whether audit trails are valuable enough to require for all disclosures is a more complex decision. Routine activities for a single hospitalized patient may result in dozens or even hundreds of audit trails a day. An enormous volume of records would be created if the rule required recording all accesses. On the other hand, audit trails have great potential for preventing abuse of records. Because most abuses are the result of activity by insiders, excluding disclosures for treatment, payment, and health care operations from an audit trail requirement would destroy the deterrent value of the audit trails. The rule should not discourage institutions from maintaining full audit trails. However, when the audit trails exist, record subjects should have access to them.
Audit trails for paper records are too expensive to require. Similarly, disclosures of information between providers through personal communications would also be expensive and cumbersome to record in an audit trail. However, when access to records comes through a computer, maintaining an audit trail is simple because it can be accomplished automatically. We recommend that the rule encourage cost-effective and practical audit trails for treatment, payment and oversight (as well as all other disclosures) for computer systems. This should be prospective so that it only applies to new computer systems placed in service at some time in the future. If record-keepers have sufficient notice of the requirement, it will be relatively easy to include an audit trail capability at little additional cost.
The rule allows an exclusion from the audit trail requirement for law enforcement or health oversight disclosures on written request. Under this rule, it will be routine for law enforcement and oversight agencies to seek exclusion from accounting every time they request a health record. This should not be acceptable. If there is an adequate reason for exclusion, the rule should require a court order. Obtaining a court order will establish a sufficiently high procedural barrier so that exclusions will not be sought casually. In the alternative, if a written request for exclusion is acceptable, the request should be dated, signed by supervisory official, and contain a certification that the official is personally familiar with the purpose of the request and the justification for exclusion from accounting. It would be better if the rule required that the entire request for exclusion be handwritten by the supervisory official.
The rule permits a covered entity to refuse a request for correction if it did not create the information at issue. This limitation makes the amendment process ineffective. For example, many records at insurance companies will not be correctable because insurance company records mostly consist of claims from providers. The insurance company can refuse most requests for correction on strictly procedural grounds. At hospitals, incorrect records created by providers long-since dead or by health plans no longer in operation could remain uncorrected. The proposed rule for correcting a record may force a patient back through a trail of record-keepers that extends for decades. It will be an impossible challenge.
Even worse, the rule actually provides a defense to the hospital that does not want to correct a record that came from another source. Ethically, a provider would have an obligation to make sure that the questioned record is accurate. Under the rule, not only does a provider have no such obligation, it has a defense should it choose to deny a request for correction.
If a covered entity uses health information to make decisions about an individual, it must be required to
While a State may submit a written request to the Secretary to except a provision of State law from preemption, it is recommended that the Secretary prior to granting the waiver give notice to the citizens of the State.
The definition of protected health information excludes individually identifiable health information of inmates of correctional facilities and detainees in detention facilities. The NCVHS is opposed to exempting inmates and detainees from the proposed rule. Information about this vulnerable population should be protected to the extent possible without jeopardizing the safety of the facilities or inmates. For example, access to schedules that would jeopardize security would not be provided.
We appreciate the opportunity to offer these comments and again congratulate the Department on a comprehensive regulation.
Information about the Committee as well as the text of the HIPAA recommendations is available on the NCVHS website (http://ncvhs/hhs/gov or from Marjorie S. Greenberg, Executive Secretary, NCVHS, NCHS, Room 1100, Presidential Building, 6525 Belcrest Road, Hyattsville, Maryland 20782, telephone (301) 458-7245.
Agency for Healthcare Research and Quality.
Notice of public meeting.
In accordance with section 10(a) of the Federal Advisory Committee Act, this notice announces a meeting of the National Advisory Council for Healthcare Research and Quality.
The meeting will be held on Friday, July 28, 2000, from 8:30 a.m. to 4 p.m. and is open to the public.
The meeting will be held at 6010 Executive Boulevard, Fourth Floor, Rockville, Maryland, 20852.
Anne Lebbon, Coordinator of the Advisory Council, at the Agency for Healthcare Research and Quality, 2101 East Jefferson Street, Suite 600, Rockville, Maryland, 20852, (301) 594-7216. For press-related information, please contact Karen Migdail at 301-594-6120.
If sign language interpretation or other reasonable accommodation for a disability is needed, please contact Linda Reeves, Assistant Administrator for Equal Opportunity, AHCPR, on (301) 594-6662 no later than March 10, 2000.
Section 921 of the Public Health Service Act (42 U.S.C. 299c) established the National Council for Healthcare Research and Quality. In accordance with its statutory mandate, the Council is to advise the Secretary and the Director, Agency for Healthcare Research and Quality (AHRQ), on matters related to actions of the Agency to enhance the quality, improve outcomes, reduce costs of health care services, improve access to such services through scientific research, the promotion of improvements in clinical practice and in the organization, financing, and delivery of health care services.
The Council is composed of members of the public appointed by the Secretary and Federal ex-officio members. Donald M. Berwick, M.D., the Council chairman, will preside.
On Friday, July 28, 2000, the meeting will begin at 8:30 a.m., with the call to order by the Council Chairman. The Director, AHRQ, will present the status of the Agency's current research, programs and initiatives. Tentative agenda items include technology assessment, international health, research on health insurance and costs, and the Agency's grant process. The official agenda will be available on AHCPR's website at
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Agency for Toxic Substances and Disease Registry (ATSDR) announces the following subcommittee meeting.
The Director, Management Analysis and Services office has been delegated the authority to sign
The Centers for disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-7090. Send written comments to CDC, Desk Officer; Human Resources and Housing Branch, New Executive Office Building, Room 10235; Washington, DC 20503. Written comments should be received within 30 days of this notice.
AIDS Prevention and Surveillance Project Reports (0920-0208)—extension—National Center for HIV, STD, and TB Prevention (NCHSTP), Centers for Disease Control and Prevention (CDC)—proposes to continue data collection for the AIDS Prevention and Surveillance Project Reports, previously approved under OMB No. 9020-0208. This request is for a 3-year extension of clearance. CDC funds cooperative agreements for 65 HIV Prevention Projects (50 states, 6 cities, 7 territories, Washington, D.C., and Puerto Rico). The cooperative agreements support counseling, testing, referral, and partner notification programs conducted by official public health agencies of states, territories, and localities (project areas). HIV counseling and testing in STD clinics, Women's Health Centers, Drug Treatment Centers, and other health agencies has been described as a primary prevention strategy of the national HIV Prevention Program. These project areas have increased HIV counseling and testing activities to specifically reach more minorities and women of child bearing age.
CDC is responsible for monitoring and evaluating HIV prevention activities conducted under the cooperative agreement. Counseling and testing programs are a major component of the HIV Prevention Program. Without data to measure the impact of counseling and testing programs, priorities cannot be assessed and redirected to prevent further spread of the virus in the general population. CDC needs information from all project areas on the number of at-risk persons tested and the number positive for HIV. The HIV Counseling and Testing Report Form provides a simple yet complete means to collect this information.
Respondents will be able to use either a manual or an electronic scan form. Seventeen respondents (project areas) will use the manual data collection tool. It takes approximately 2 hours to complete the form. The respondents will complete the form 4 times each year for a total burden of 8 hours per year per project area. Forty-eight (48) respondents (project areas) will use the scan form or client record format. It will take approximately 15 minutes for each project area to transfer data electronically on a quarterly basis for a total burden per project area of 1 hour per year. Therefore, the total annualized burden hours are 184. This request is for a 3 year extension.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2000 funds for a cooperative agreement program to support a prospective study to develop and evaluate the role of different levels of assistance with and observation of the administration of antiretroviral (ARV) therapy for the treatment of HIV-1 infection. This program addresses the “Healthy People 2010” focus area of HIV.
The purpose of the program is to investigate whether different levels of support have an impact on: improving virologic, immunologic, and clinical outcomes of HIV disease; on the development of HIV-1 ARV drug resistance; and on therapeutic plasma drug concentrations. Innovative applications are invited that assess the impact of three different levels of administration and oversight of antiretroviral treatment: (1) Directly observed antiretroviral therapy (DART), the relative “gold standard” of what is achievable with maximum adherence support—any setting or system in which antiretroviral medications are routinely dispensed by dose and per-dose medication record is kept. Possible examples of such settings include but
Applications may be submitted by public and private nonprofit organizations and by governments and their agencies; that is, universities, colleges, research institutions, hospitals, other public and private nonprofit organizations, State and local governments or their bona fide agents, and federally recognized Indian tribal governments, Indian tribes, or Indian tribal organizations.
Public Law 104-65 states that an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, cooperative agreement, contract, loan, or any other form.
Approximately $400,000 is available in FY 2000 to fund approximately 2 awards. It is expected that the average award will be approximately $200,000. It is expected that the awards will begin on or about September 30, 2000, and will be made for a 12-month budget period, within a project period of up to four years. Funding estimates may change.
Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
In conducting activities to achieve the purpose of these programs, the recipient will be responsible for the activities listed under 1. Recipient Activities, and CDC will be responsible for conducting activities listed under 2. CDC Activities.
Successful applicants addressing the same research issue should be willing to jointly develop the study protocol in collaboration with other CDC-sponsored researchers. This will include developing and using common data collection instruments, specimen collection protocols, and data management procedures, as determined in post-award grantee planning conferences. Recipients will be encouraged to work collaboratively as a study group to:
a. Develop the research study protocols and standardized data collection forms, specimen collection, and laboratory testing across sites. This includes transfer of certain specimens to a central repository and transfer of other specimens to designated laboratories for specific laboratory studies.
b. Identify, recruit, obtain informed consent from, and enroll an adequate number of study participants as determined by the study protocols and the program requirements.
c. Continue to follow study participants as determined by the study protocols.
d. Establish procedures to maintain the rights and confidentiality of all study participants.
e. Contribute blood specimens of study participants as determined by the protocol requirements for shipment and storage at a centralized repository system.
f. Conduct data analysis with all collaborators as well as present and publish research findings.
a. Provide technical assistance in the design and conduct of the research.
b. Assist in the development of a research protocol for Institutional Review Board (IRB) review by all cooperating institutions participating in the research project. The CDC IRB will review and approve the protocol initially and on at least an annual basis until the research project is completed.
c. Assist in designing a data management system.
d. Assist in performance of selected laboratory tests.
e. Work collaboratively with investigators to help facilitate research activities across sites involved in the same research project.
f. Assist in the analysis of research information and the presentation and publication of research findings.
Use the information in the Program Requirements, Other Requirements, and Evaluation Criteria sections to develop your application. Your application will be evaluated on the criteria listed, so it is important to follow them in laying out your program plan. Follow the directions for completing the application that are found in the Public Health Service (PHS) 398 form.
Submit the original and five copies of PHS-398 (OMB Number 0925-0001) (adhere to the instructions on the Errata Instruction Sheet for PHS 398). Forms are in the application kit.
On or before August 17, 2000, submit the application to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
(1) Received on or before the deadline date; or
(2) Sent on or before the deadline date and received in time for submission to the independent review group. (Applicants must request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private metered postmarks shall not be acceptable as proof or timely mailing.
Each application will be evaluated individually against the following criteria by an independent review group appointed by CDC. Applicants will be ranked on a scale of 100 maximum points according to the research area identified. Applications must demonstrate the applicant's ability to address the research in a collaborative manner with other recipients. Applications will be reviewed and evaluated based on the evidence submitted, as they specifically describe the applicant's abilities to meet the following criteria:
a. Extent of applicant's experience in HIV infection epidemiologic research.
b. Evidence of ability to successfully recruit and follow HIV-infected persons in longitudinal research studies.
c. Evidence of ability to provide at least two or preferably three types of adherence support: DART (each dose dispensed and per-dose medication record kept); intensive adherence support (at least weekly and ideally more frequent contact with care model);
d. Ability to recruit and retain at least 50 and ideally 100 HIV-infected persons in each adherence model annually (150-300 persons total) fulfilling the objectives of the study. Multiple sites may be used to accomplish these goals.
e. Evidence of availability of comparable populations among the three adherence models, especially with regards to stage of disease, quality of clinical care, and antiretroviral experience.
f. Evidence of ability to collect complete data and to obtain regular blood samples and sufficiently large blood samples from HIV-infected persons for testing as will be determined in the study protocol.
g. Ability to oversee specimen collection for the timely processing, storage, and retrieval of laboratory specimens as needed for the study.
h. Ability to measure costs associated with adherence interventions as well as those associated with HIV care provision.
a. Extent of familiarity and quality of experience pertinent to proposed research activities.
b. Understanding of research objectives as evidence by the high quality and scientific rigor of the proposed plan for research and a study design that is appropriate to answer research questions.
c. The inclusion of innovative approaches to provide intensive adherence support. These approaches may be existing or may be designed and implemented specifically for this study.
d. As more than one applicant may be funded, extent to which the applicant demonstrates willingness to work with all successful applicants to develop a common core research protocol across funded sites.
e. Feasibility of plans to follow study participants particularly treatment experienced patients. This includes demonstration of the experience of the investigator in following HIV-infected persons, and the comprehensiveness of the plan to protect the rights and confidentiality of all participants.
f. Thoroughness of plans for data management, data analysis, and laboratory analysis; reasonableness of data collected; and statistical rigor.
g. Extent to which the application demonstrates feasible plans for coordinating research activities of multiple local study sites, where appropriate, and with CDC. Letters of support from cooperating organizations that demonstrate the nature and extent of such cooperation should be included.
h. The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic and racial groups in the proposed research. This includes: (1) The proposed plan for the inclusion of racial and ethnic minority populations for appropriate representation; (2) The proposed justification when representation is limited or absent; (3) A statement as to whether the design of the study is adequate to measure differences when warranted; (4) A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with communities and recognition of mutual benefits.
a. Applicant's ability to carry out the proposed research as demonstrated by the training and experience of the proposed research team and organizational setting, including demonstration of ability to collect, manage, and analyze accurate data in a timely manner.
b. Demonstration of working relationships with the proposed investigators and extent to which services to be provided by external experts or consultants are documented by memoranda of agreement.
c. Demonstration of epidemiologic, behavioral, clinical, administrative, laboratory, data management and statistical analysis expertise needed to conduct proposed research.
d. Ability to sustain adherence support mechanisms at the cessation of study.
a. Availability of qualified and experienced personnel with sufficient time dedicated to the proposed project.
b. Clarity of the described duties and responsibilities of project personnel.
c. Adequacy of plans for project oversight to assure quality of data.
d. Adequacy of facilities, equipment, data management resources, and systems for ensuring data security and patient confidentiality.
e. Adequacy of time line for completion of project activities.
a. Budget: the extent to which it is reasonable, clearly justified, consistent with the intended use of funds, and allowable. All budget categories should be itemized.
b. Human Subjects: Does the application adequately address the requirements of Title 45 CFR Part 46 for the protection of human subjects?
Provide CDC with original plus two copies of:
1. Annual progress reports;
2. Financial status report, no more than 90 days after the end of the budget period; and
3. Final financial status and performance reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment 1 in the application kit.
This program is authorized under sections 301(a) and 317(k)(2) of the Public Health Service Act, [42 U.S.C. section 241(a) and 247b(k)(2)], as amended. The Catalog of Federal Domestic Assistance number is 93.943.
This and other CDC announcements can be found on the CDC home page Internet address—http://www.cdc.gov Click on “Funding” then “Grants and Cooperative Agreements.”
To receive additional written information and to request an application kit, call 1-888-GRANTS4 (1-888 472-6874). You will be asked to leave your name and address and will be instructed to identify the Announcement number of interest.
If you have questions after reviewing the contents of all the documents, business management technical assistance may be obtained from: Brenda Hayes, Grants Management Specialist, Grants Management Branch, Procurement and Grants Office, Announcement 00006, Centers for Disease Control and Prevention (CDC), Grants Management Office Room 3000, Attn: Colgate Building, 2920 Brandywine Rd., Mailstop E-15, Atlanta, GA 30341, telephone (770) 488-2741, Email address bkh4@cdc.gov
For program technical assistance, contact: Jeff Efird, MPA, Deputy Chief, Epidemiology Branch, Division of HIV/AIDS Prevention, Surveillance & Epidemiology, National Center for HIV, STD, and TB Prevention, Centers for Disease Control and Prevention (CDC), 1600 Clifton Road, NE., Mailstop E-45, Atlanta, Georgia 30333, Telephone (404) 639-6130, E-mail jle1@cdc.gov
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting.
The Director, Management Analysis and Services office has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of research funds for fiscal year (FY) 2000 to support research in the following areas of produce safety, egg safety, development of extraction procedures of foodborne viruses from foods to enhance detection, and food service, transportation, and consumer practices. Approximately $600,000 will be available in FY 2000. FDA anticipates making three to four awards at $100,000 to $200,000 (direct and indirect costs) per award per year. Support of these agreements may be up to 3 years. The number of agreements funded will depend on the quality of the applications received and the availability of Federal funds to support the project. After the first year, additional years of noncompetitive support are predicated upon performance and the availability of Federal fiscal year funds.
Submit applications by August 24, 2000.
Application forms are available from, and completed applications should be submitted to: Maura C. Stephanos, Grants Management Specialist, Grants Management Office (HFA-520), Division of Contracts and Procurement Management, Office of the Director, Food and Drug Administration, 5600 Fishers Lane, rm. 2129, Rockville, MD 20857, 301-827-7183, FAX 301-827-7106, e-mail: mstepha1@oc.fda.gov. (Applications hand-carried or commercially delivered should be addressed to rm. 2129, 5630 Fishers Lane, Rockville, MD 20852).
Regarding the administrative and financial management aspects of this notice: Maura C. Stephanos (address above).
Regarding the programmatic aspects of this notice: Marianna D. Miliotis, Food Safety Initiative Extramural Research Coordinator, Office of Plants, Dairy Foods, and Beverages (HFS-327), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 200 C St. SW., Washington, DC 20204, 202-205-4824, e-mail: mmilioti@bangate.fda.gov.
FDA will support the research studies covered by this notice under section 301 of the Public Health Service Act (42 U.S.C. 241). FDA's research program is described in the Catalog of Federal Domestic Assistance, No. 93.103.
The Public Health Service (PHS) strongly encourages all award recipients to provide a smoke-free workplace and to discourage the use of all tobacco products. This is consistent with the PHS mission to protect and advance the physical and mental health of the American people.
FDA is committed to achieving the health promotion and disease prevention objectives of “Healthy People 2010,” a national activity to reduce morbidity and mortality and to improve the quality of life. Applicants may obtain a hard copy of the “Healthy People 2010” objectives, vols. I and II, conference edition (B0074) for $22 per set, by writing to the Office of Disease Prevention and Health Promotion (ODPHP) Communication Support Center (Center), P.O. Box 37366, Washington, DC 20013-7366. Each of the 28 chapters of “Healthy People 2010” is priced at $2 per copy. Telephone orders can be placed at the Center on 301-468-5690. The Center also sells the complete conference edition in CD-ROM format (B0071) for $5. This publication is available as well on the Internet at www.health.gov/healthypeople. Internet viewers should proceed to “Publications.”
FDA is mandated by the President's Food Safety Initiative (FSI) to reduce the incidence of foodborne illness to the greatest extent feasible. Research in food safety seeks to reduce the incidence of foodborne illness by improving our ability to detect and enumerate pathogens in the food supply and to find new ways to control them. In FY 1998, the Center for Food Safety and Applied Nutrition (CFSAN) obligated $2 million to support eight multiyear cooperative agreements. This extramural program inaugurated a novel collaborative research effort between CFSAN and academic scientists, and leveraged expertise, not found within FDA, to accelerate ongoing research. Collaborations such as these provide information critical to food safety guidance and policymaking, and stimulate fruitful interactions between FDA scientists and those within the greater research community.
In continuation of this effort, CFSAN/FSI will provide FY 2000 funds to be used for research to help ensure produce and egg safety, develop extraction methods for viruses in foods, and determine food storage practices from processing to consumption.
The goals and objectives of this program will be to: (1) Ensure produce safety by standardizing inoculation methods for determining the efficacy of antimicrobial chemicals or technologies or for validation of Hazard Analysis Critical Control Point (HACCP) systems, particularly in fresh or minimally processed produce; (2) evaluate surrogate microorganisms for use in HACCP validation; (3) ensure egg safety by developing improved sampling and detection methods for detection of low-levels of and enumeration of
Projects that fulfill any one of the following specific objectives will be considered for funding. Applications may address only one project objective; however, applicants may submit more than one application for any of the project objectives. The project objectives are listed below in order of priority.
The first priority is to develop extraction and processing methods suitable for RT-PCR based identification/detection of foodborne viruses, such as Hepatitis A virus (HAV) and Norwalk virus. Commodities of interest include raw or minimally processed foods, such as strawberries, raspberries, grapes, tomatoes, and seafood. Extraction and sample processing methods must not interfere or inhibit RT-PCR based detection of the virus(es) and be applicable for analysis of large or bulk quantities of foods. The entire methodology, from extraction to detection, must include appropriate and exhaustive positive and negative controls to ensure validity of the extraction, processing, and detection (RT-PCR based) methods. These controls must also include those designed to confirm or exclude the absence of viral particle/genome contamination among and/or between food samples and reagents.
The second priority is to determine the effect of different inoculation procedures (e.g. dipping, spraying, spotting) on the efficacy of disinfectants and intervention technologies to remove or inactivate microorganisms, and determine how procedures perform under practical conditions. Ensuring produce that is safe for the consumer to eat is a major priority. Research needed to address this issue includes standard inoculation methods for performing challenge studies. FDA has continually sponsored research in intervention strategies to mitigate the risk of foodborne illness and reviewed applications for new antimicrobial agents and intervention technologies. The initiative provides an opportunity to expand the range of research questions addressed by FDA in intervention strategies for standardization of inoculation procedures for testing efficacy of intervention strategies. Currently, challenge inoculation methods tend to allow limited times for attachment of cells to food surfaces (and often under unrealistic conditions). This makes interpretation of the results difficult. Published studies have also demonstrated problems with statistical reproducibility when the attachment period is lengthened. An ideal inoculation protocol would permit sufficient time for cell attachment under conditions simulating those encountered in food growing and processing environments, such as low nutrient levels and ambient temperatures. The protocol tests must include a comparison of application techniques including spot, spray, and dip inoculation methods.
To determine whether consumer and industry practices are sufficient to protect the consumer from foodborne illness, research is needed in the following areas:
(1) Examine acceptability of the U.S. Public Health Service Food Code's requirements for: (a) Four-hour holding limit for all foods at ambient temperature, (b) the appropriateness for cooling foods from 140 to 41
(2) Quantitatively describe whether cooking practices used in the home are sufficient to inactivate pathogenic bacteria, viruses, or parasites that may be present in specific foods.
(3) Explore consumer practices related to storage of selected food products, including when and where it is stored in the refrigerator, refrigerator temperatures, length of time refrigerated food is kept, and consumer knowledge and beliefs related to food safety and refrigeration.
To ensure that eggs are safe, there is a need to study egg safety, specifically sampling and detection methods for
(1) Develop improved sampling and detection methods to detect low-levels of, and more significantly enumerate,
(2) Develop better on-farm indicators for predicting whether eggs are contaminated with
The fifth priority is to determine which microorganisms are most suitable for use as surrogates for foodborne pathogens and are appropriate for specific commodities in challenge
Some activities carried out by a recipient under this announcement may be governed by the Department of Health and Human Services (DHHS) regulations for the protection of human research subjects (45 CFR part 46). These regulations require recipients to establish procedures for the protection of subjects involved in any research activities. Prior to funding and upon request of the Office for Protection from Research Risks (OPRR), prospective recipients must have on file with OPRR an assurance to comply with 45 CFR part 46. This assurance to comply is called an Assurance document. It includes the designated Institutional Review Board (IRB) for review and approval of procedures for carrying out any research activities occurring in conjunction with this award. If an applicable Assurance document for the applicant is not already on file with OPRR, a formal request for the required Assurance will be issued by OPRR at an appropriate point in the review process, prior to award, and examples of required materials will be supplied at that time. No applicant or performance site, without an approved and applicable Assurance on file with OPRR, may spend funds on human subject activities or accrue subjects. No performance site, even with an OPRR-approved and applicable Assurance, may proceed without approval by OPRR of an applicable Assurance for the recipients. Applicants may wish to contact OPRR by facsimile (301-402-0527) to obtain preliminary guidance on human subjects issues. When contacting OPRR, applicants should provide their institutional affiliation, geographic location, and all available Request for Applications (RFA) citation information.
Applicants are advised that the section on human subjects in the application kit entitled “Section C. Specific Instructions—Forms, Item 4, Human Subjects,” on pages 7 and 8 of the application kit, should be carefully reviewed for the certification of IRB approval requirements. Documentation of IRB approval for every participating center is required to be on file with the Grants Management Officer, FDA. The goal should be to include enough information on the protection of human subjects in a sufficiently clear fashion so reviewers will have adequate material to make a complete review. Those approved applicants who do not have a current Multiple Project Assurance with OPRR will be required to obtain a Single Project Assurance from OPRR prior to award.
Consent and/or assent forms, and any additional information to be given to a subject, should accompany the grant application. Information that is given to the subject or the subject's representative must be in language that the subject or his or her representative can understand. No informed consent, whether oral or written, may include any language through which the subject or the subject's representative is made to waive any of the subject's legal rights, or by which the subject or representative releases or appears to release the investigator, the sponsor, or the institution or its agent from liability.
If a study involves both adults and children, separate consent forms should be provided for the adults and the parents or guardians of the children.
The regulations on informed consent are set forth in 45 CFR 46.116 and 21 CFR 50.25. The basic elements of informed consent are as follows:
In seeking informed consent, the following information shall be provided to each subject.
• A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures which are experimental.
• A description of any reasonably foreseeable risks or discomforts to the subject.
• A description of any benefits to the subject or to others which may reasonably be expected from the research.
• A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject.
• A statement that describes the extent, if any, to which confidentiality of records identifying the subject will be maintained, and that notes the possibility that FDA may inspect the records.
• For research involving more than minimal risk, an explanation as to whether any compensation and any medical treatments are available if injury occurs and, if so, what they consist of or where further information may be obtained.
• An explanation of whom to contact for answers to pertinent questions about the research and research subject's rights, and whom to contact in the event of research-related injury to the subject.
• A statement that participation is voluntary, that refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and that the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.
When appropriate, one or more of the following elements of information shall also be provided to each subject.
• A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable.
• Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent.
• Any costs to the subject that may result from participation in the research.
• The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject.
• A statement that significant new findings developed during the course of the research that may relate to the subject's willingness to continue participation will be provided to the subject.
• The approximate number of subjects involved in the study.
• The informed consent requirements are not intended to preempt any
• Nothing in the notice is intended to limit the authority of a physician to provide emergency medical care to the extent that a physician is permitted to do so under applicable Federal, State, or local law.
A Program Progress Report and a Financial Status Report (FSR) (SF-269) are required. An original FSR and two copies shall be submitted to FDA's Grants Management Officer (address same as given above for Grants Management Specialist) within 90 days of the budget expiration date of the cooperative agreement. Failure to file the FSR (SF-269) on time may be grounds for suspension or termination of the agreement. Progress reports will be required quarterly within 30 days following each fiscal year quarter (January 31, April 30, July 30, October 31), except that the fourth report will serve as the annual report and will be due 90 days after the budget expiration date. CFSAN program staff will advise the recipient of the suggested format for the Program Progress Report at the appropriate time. A final FSR (SF-269), Program Progress Report and Invention Statement, must be submitted within 90 days after the expiration of the project period, as noted on the Notice of Grant Award.
Program monitoring of recipients will be conducted on an ongoing basis and written reports will be reviewed and evaluated at least quarterly by the Project Officer and the Project Advisory Group. Project monitoring may also be in the form of telephone conversations between the Project Officer/Grants Management Specialist and the Principal Investigator and/or a site visit with appropriate officials of the recipient organization. The results of these monitoring activities will be duly recorded in the official file and may be available to the recipient upon request.
Support for this program will be in the form of cooperative agreements. These cooperative agreements will be subject to all policies and requirements that govern the research grant programs of the PHS, including the provisions of 42 CFR part 52 and 45 CFR parts 74 and 92. The regulations issued under Executive Order 12372 do not apply to this program.
These cooperative agreements are available to any public or private nonprofit entity (including State and local units of government) and any for-profit entity. For-profit entities must commit to excluding fees or profit in their request for support to receive grant awards. Organizations described in section 501(c)(4) of the Internal Revenue Code of 1968 that engage in lobbying are not eligible to receive awards.
The length of support will be for up to 3 years. Funding beyond the first year will be noncompetitive and will depend on: (1) Satisfactory performance during the preceding year, and/or (2) the availability of Federal FY funds.
Inherent in the cooperative agreement award is substantive involvement by the awarding agency. Accordingly, FDA will have a substantive involvement in the programmatic activities of all the projects funded under this RFA. Substantive involvement includes but is not limited to the following:
1. FDA will provide guidance and direction with regard to the scientific approach and methodology that may be used by the investigator.
2. FDA will participate with the recipient in determining and executing any: (a) Methodological approaches to be used, (b) procedures and techniques to be performed, (c) sampling plans proposed, (d) interpretation of results, and (e) microorganisms and commodities to be used.
3. FDA will collaborate with the recipient and have final approval on the experimental protocols. This collaboration may include protocol design, data analysis, interpretation of findings, coauthorship of publications and the development and filing of patents.
All applications submitted in response to this RFA will first be reviewed by grants management and program staff for responsiveness. Applications will be considered nonresponsive if they are not in compliance with sections VII.B and VIII of this document. If applications are found to be nonresponsive to this announcement, they will be returned to the applicant without further consideration.
Responsive applications will be reviewed and evaluated for scientific and technical merit by an ad hoc panel of experts in the subject field of the specific application. Responsive applications will also be subject to a second level of review by a National Advisory Council for concurrence with the recommendations made by the first level reviewers. Final funding decisions will be made by the Commissioner of FDA or his designee.
The funding priority categories are as follows: Project Objective 1—first priority; Project Objective 2—second priority; Project Objective 3—third priority; Project Objective 4—fourth priority, and Project Objective 5—fifth priority.
Applicants must clearly state in their applications which of the above-established funding priority categories is relevant to their proposed project. Applications will be grouped, reviewed, and ranked within each funding priority category. Funding priority will start with the highest ranked applications under each of the five objectives, then the second highest, etc., until available funds have been exhausted. All applications will be evaluated by program and grants management staff for responsiveness. Applications considered nonresponsive will be returned to the applicant without being reviewed. Applicants are strongly encouraged to contact FDA to resolve any questions regarding criteria prior to the submission of their application. All questions of a technical or scientific nature must be directed to the CFSAN program staff, and all questions of an administrative or financial nature must be directed to the grants management staff (see the Information Contact section at the beginning of this document for addresses.) Applications will be reviewed and scored on the following criteria:
1. For Project Objective 3 only—Research should be proposed on commercial time/temperature practices, Food Code requirements, home cooking practices, or home refrigeration practices, that is within Project Objective 3 in Section II. Research Goals and Objectives of this document;
2. For Project Objective 4 only—Research should be proposed on sampling and detection of
3. For all Project Objectives—Whether the proposed study is within the budget,
4. For all Project Objectives—Soundness of the rationale for the proposed study and appropriateness of the study design to address the objectives of the RFA;
5. For all Project Objectives—Availability and adequacy of laboratory facilities and equipment;
6. For all Project Objectives—Availability and adequacy of support services, e.g., biostatistical computer, data bases, etc., and;
7. For all Project Objectives—Research experience, training, and competence of the principal investigator and support staff.
The original and two copies of the completed Grant Application Form PHS 398 (Rev. 4/98) or the original and two copies of PHS 5161 (Rev. 6/99) for State and local governments, with copies of the appendices for each of the copies, should be delivered to Maura C. Stephanos (address above). State and local governments may choose to use the PHS 398 application form in lieu of PHS 5161. The application receipt date is August 24, 2000. No supplemental or addendum material will be accepted after the receipt date. The outside of the mailing package and item 2 of the application face page should be labeled: “Response to RFA FDA CFSAN-00, Project Objective 1 (1-5).”
Applications will be accepted during normal working hours, 8 a.m. to 4:30 p.m., Monday through Friday, on or before the established receipt date. Applications will be considered received on time if sent or mailed on or before the receipt date as evidenced by a legible U.S. Postal Service dated postmark or a legible date receipt from a commercial carrier, unless they arrive too late for orderly processing. Private metered postmarks shall not be acceptable as proof of timely mailing. Applications not received on time will not be considered for review and will be returned to the applicant. (Applicants should note that the U.S. Postal Service does not uniformly provide dated postmarks. Before relying on this method, applicants should check with their local post office.)
Do not send applications to the Center for Scientific Research (CSR), NIH. Any application that is sent to NIH, that is then forwarded to FDA and not received in time for orderly processing, will be deemed unresponsive and returned to the applicant. Instructions for completing the application forms can be found on the NIH home page on the Internet at http://www.nih.gov.grants/phs398/phs398.html; the forms can be found at http://www.nih.gov/grants/phs398/forms—toc.html. However, as noted above, applications are not to be mailed to NIH. Applicants are advised that FDA does not adhere to the page limitations or the type size and line spacing requirements imposed by NIH on its applications. Applications must be submitted via mail delivery as stated above. FDA is unable to receive applications via the Internet.
Submission of the application must be on Grant Application Form PHS 398 (Rev. 4/98). All “General Instructions” and “Specific Instructions” in the application kit should be followed with the exception of the receipt dates and the mailing label address.
The face page of the application should reflect the request for applications number RFA-FDA-CFSAN-00, Project Objective 1 (2, 3, 4, or 5).
Data included in the application, if restricted with the legend specified below, may be entitled to confidential treatment as trade secret or confidential commercial information within the meaning of the Freedom of Information Act (5 U.S.C. 552(b)(4)) and FDA's implementing regulations (21 CFR 20.61).
Information collection requirements requested on Form PHS 398 and the instructions have been submitted by PHS to the Office of Management and Budget (OMB) and were approved and assigned OMB control number 0925-0001.
Unless disclosure is required by the Freedom of Information Act as amended (5 U.S.C. 552) as determined by the freedom of information officials of DHHS or by a court, data contained in the portions of this application that have been specifically identified by page number, paragraph, etc., by the applicant as containing restricted information shall not be used or disclosed except for evaluation purposes.
Food and Drug Administration, HHS.
Notice of public meeting.
The Food and Drug Administration (FDA) is announcing the following meeting: Radiofrequency Micronucleus Working Group. This is the initial meeting of a working group of national and international scientific experts convened to review the results of studies, previously conducted by Wireless Technology Research, L.L.C., on the effects of radiofrequency energy on micronucleus formation, and to recommend a statement of work for additional research. This meeting is being convened as the initial step in a Cooperative Research and Development Agreement (CRADA) between the Center for Devices and Radiological Health of FDA and the Cellular Telecommunications Industry Association (CTIA), consistent with Appendix A of the CRADA. The meeting will be open to the public.
If you need special accommodations due to a disability, please contact Ms. Toni Fennell, 301-443-7118 at least 7 days in advance.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Combined Oral Contraceptives—Labeling for Healthcare Providers and Patients.” FDA's Center for Drug Evaluation and Research is issuing this draft guidance for drug products in the combined oral contraceptives class. When finalized, the guidance should result in uniform labeling among combined oral contraceptive products. Uniform labeling is important to physicians and patients when they read and try to understand efficacy claims and safety risks associated with drug products in this class. In addition, this draft guidance is intended to provide sponsors of new combined oral contraceptive drug products with a labeling template.
Submit written comments on the draft guidance by September 8, 2000. General comments on agency guidance documents are welcome at any time.
Copies of this draft guidance for industry are available on the Internet at http://www.fda.gov/cder/guidance/index.htm. Submit written requests for single copies of the draft guidance to the Drug Information Branch (HFD-210), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Lana L. Pauls, Center for Drug Evaluation and Research (HFD-580), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4260.
FDA is announcing the availability of a draft guidance for industry entitled “Combined Oral Contraceptives—Labeling for Healthcare Providers and Patients.” The draft guidance is intended to produce uniform labeling among combined oral contraceptive products. Uniform labeling is important to physicians and patients in understanding efficacy claims and safety risks associated with drug products in this class. The draft guidance, which outlines recommendations for the physician insert, also includes a labeling template for physician labeling and instructions for use that can be used for new drug applications and abbreviated new drug applications. Among the labeling recommendations is a black box warning explaining the increased risk of serious cardiovascular side effects associated with the concomitant use of cigarettes and combined oral contraceptives. Once the draft guidance is finalized, the recommended text should be included in all approved, pending, and future applications. This labeling guidance is intended to supersede the “Labeling Guidance for Combination Oral Contraceptives, Physician and Patient Labeling,” revised in August 1994.
This draft guidance is being issued consistent with FDA's good guidance practices (62 FR 8961, February 27, 1997). The draft guidance represents the agency's current thinking on combined oral contraceptive labeling for healthcare providers and patients. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute, regulations, or both.
Interested persons may submit to the Dockets Management Branch (address above) written comments on the draft guidance. Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. The draft guidance and received comments are available for public examination in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Health Resources and Services Administration.
Notice; correction.
In the
David Heppel, M.D., Director, Division of Child, Adolescent, and Family Health, Maternal and Child Health Bureau, Health Resources and Services Administration, Room 18A-30, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857; telephone 1-301-443-2250.
Health Resources and Services Administration, HHS.
Notice.
This notice requests comments on proposed eligibility criteria for the Center of Excellence (COE) program in health professions education for under-represented minority (URM) individuals. When finalized, these eligibility criteria, will be used to determine the eligibility of designated health professions schools in Fiscal Year 2001. The designated health professions schools are schools of allopathic and osteopathic medicine, dentistry, pharmacy, and graduate programs in behavioral and mental health. The COE program is authorized by section 736 of the Public Health Service Act (the Act) (42 U.S.C. 293).
Interested persons are invited to comment by August 9, 2000. All comments received on or before August 9, 2000, will be considered in the development of the final eligibility criteria for the COE program. Comments will be addressed individually or by group in the final notice published in the
All written comments concerning this notice should be submitted to Mario A. Manecci, Acting Director, Division of Health Professions Diversity, Bureau of Health Professions, Health Resources and Services Administration, Parklawn Building, Room 8A-09, 5600 Fishers Lane, Rockville, Maryland 20857.
Mario A. Manecci, Acting Director, Division of Health Professions Diversity; telephone (301) 443-2100.
The COE program supports programs of excellence in health professions education for under-represented minority (URM) individuals in designated health professions schools. These designated health professions school COE categories are: certain Historically Black Colleges and Universities, Hispanic, Native American, and other health professions schools that meet the program requirements. The COEs are innovative resource and education centers to recruit, train, and retain URM students and faculty at health professions schools. They carry out activities to improve information resources, clinical education, curricula and cultural competence, focusing on minority health issues. The COEs also focus on facilitating faculty and student research on health issues particularly affecting under-represented minority groups. The ultimate goal of the COE program is to strengthen the national capacity to produce a culturally competent healthcare workforce diversity that represents the U.S. population.
The Act requires the designated schools to meet each of four general conditions as part of their eligibility requirements. The schools must: (1) Have a significant number of URM students enrolled; (2) have been effective in assisting its URM students to complete the educational program and receive the attached degree; (3) have been effective in recruiting URM students to enroll in and graduate from the school, including providing financial assistance and encouraging URM students at all levels of education to pursue health professions careers; and (4) have made significant recruitments efforts to increase the number of URM students serving in faculty or administrative positions at the school.
The intent of the COE statute is to identify and support institutions with a commitment to URM's and who have attained, as demonstrated by meeting minimum standards, the expertise in recruiting, teaching, training, and retaining the URM health professional, both as practitioners and as faculty. The proposed criterion is to ascertain that eligible institutions have demonstrated progress in improving the school's information resources, clinical education, and curricula and cultural competence of their graduates with respect to minority health issues. The criteria is to ensure that COE applicants will contribute effectively to the attainment of the HRSA goals of increased diversity in the health care workforce and improving the capacity of designated schools to support programs of excellence in health professions education for URMs. Beginning in FY 2001, the Secretary proposes to establish the following criteria to determine these four eligibility conditions.
The school must have a significant number of URM students enrolled, including students who have been accepted for enrollment at the school. The Secretary will determine the “significant number” for Hispanic and Native American COEs based on a percentage of the current number of URM students enrolled in these schools. This determination is unnecessary, however, for Historically Black Colleges and Universities which meet the “significant number” condition by virtue of their definition. With respect to the “other” COE health professions schools, the Act requires these schools to have a current enrollment of URMs above the national average.
Given the relatively low number of URMs enrolled in health professions schools, a significant number of URMs would be the number that the Secretary views as a critical mass of URM students. The variation in health professions schools class size and total school enrollment also impacts on the determination of the critical mass of URM students. These figures are as follows:
There are 39 schools (31%) out of 125 with 20 or more Hispanic students enrolled.
There are 24 schools (20%) out of 125 with 8 or more Native American students enrolled.
There are 8 schools (40%) out of 19 with 20 or more Hispanic students enrolled.
There are 6 schools (30%) out of 19 with 5 or more Native American students enrolled.
There are 10 schools (14%) out of 73 with 20 or more Hispanic students enrolled.
There are 4 schools (6%) out of 73 with 5 or more Native American students enrolled.
There are 12 schools (22%) out of 54 with 20 or more Hispanic students enrolled.
There are 2 schools (5%) out of 54 with 6 or more Native American students enrolled.
Since there are no current figures available for this category, Schools of Social Work (Direct Services or Clinical Social Work) total URM enrollment will be used as representative of this category.
There are 13 schools (11%) out of 115 with 30 or more students enrolled.
Due to the very limited number of Native Americans enrolled in a Behavioral or Mental Health School/Program, Behavioral or Mental Health graduate programs will be incorporated as part of a consortium with other Native American COEs. The Secretary is authorized to approve a consortium of health profession schools to carry out the purpose of Native American COEs programs.
The second condition requires designated health professions schools to assist URMs students to be effective in assisting its URM students to complete the program of education and to receive the attached degree. During the past 6 years, the twenty federally-funded COE programs had an average graduation rate of 93 percent. Accordingly, the Secretary views “effective” as a 90% URM graduation rate over a 5-year period.
The third condition requires designated health professions schools to have effectively recruited URMs including providing scholarships and other financial assistance for individuals enrolled in the school. One of the major barriers for URMs to enroll in health professions schools is the financial debt burden. The majority of URM students need financial assistance to pursue careers in the health professions. The availability of URM scholarships are limited and most resort to long term loans as the mechanism to pay for their professional education. The debt burden of these outstanding loans after graduation, inhibits URMs from practicing in needy areas where reimbursement is dominated by reduced medicaid payments, and options for junior faculty appointments with limiting starting salaries are not competitive to increase URM faculty in health professions schools. The need for financial assistance is a critical issue for URMs. Accordingly, the proposed COE criteria for “effective” recruitment and provision of financial assistance is that the school secures financial assistance in the form of scholarships, tuition waiver, and /or loans for 100% of the URM students who need this aid.
The fourth condition requires designated health professions schools to have made a significant effort to increase the number of URM faculty or administrative positions at the school. A major COE program focus is to improve the capacity of the school to recruit, train, and retain URM faculty and administrative personnel. Recognizing that institution's faculty and administrative positions may vary from one academic year to another, it would be inappropriate to establish any numerical goal for meeting this condition. However, a health professions school should be able to demonstrate over a 5-year period a “significant effort” to recruit URM faculty and administrative positions based on the number of vacancies over this period. The school must provide the Secretary with a description of the school's policies and activities showing how the school has made a “significant effort” to increase the number of URM faculty and administrative personnel given the number of vacancies for the last 5-year period.
The catalog of Federal Domestic Assistance Number for the COE program is 93.157. This program is not subject to the provisions of Executive Order 12372, Intergovernmental Review of Federal Programs (as implemented through 45 CFR part 100).
These programs are not subject to the Public Health Systems Reporting Requirements.
Bureau of Indian Affairs, Interior.
Notice of Reservation Proclamation.
The Assistant Secretary—Indian Affairs proclaimed approximately 12.50 acres, more or less, as an addition to the reservation of the Bay Mills Indian Community on June 19, 2000.
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 DM 8.1.
Terrance L. Virden, Bureau of Indian Affairs, Director, Office of Trust Responsibilities, MS-4513/MIB/Code 200, 1849 C Street, N.W., Washington, D.C. 20240, telephone (202) 208-5831.
A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 986; 25 U.S.C. 467), for the tracts of land described below. The land was proclaimed to be an addition to and part of the reservation of the Bay Mills Indian Community for the exclusive use of Indians on that reservation who are entitled to reside at the reservation by enrollment or tribal membership.
The North 100 feet of the South 430 feet of Government Lot 2, Section 31, Town 47 North, Range 2 West, Superior Township, Chippewa County, Michigan.
The South 330 feet of Government Lot 2, Section 31, Town 47 North, Range 2 West, Superior Township, Chippewa County, Michigan. Containing in the aggregate of 5.98 acres of land, more or less.
That part of Section 31, Town 47 North, Range 2 West of Government Lot 2, which are particularly described in Exhibit A, as Parcels A, B, C, and D.
Parcel A: Part of Government Lot 2, Section 31, Town 47 North, Range 2 West, described as commencing at the West
Parcel B: Part of Government Lot 2, Section 31, Town 47 North, Range 2 West, described as commencing at the West
Parcel C: Part of Government Lot 2, Section 31, Town 47 North, Range 2 West, described as commencing at the West
Parcel D: Part of Government Lot 2, Section 31, Town 47 North, Range 2 West, described as follows: Commencing at the West
And part of Government Lot 2, Section 31, Town 47 North, Range 2 West described as follows: Commencing at the West
Together with the right of ingress and egress over gravel driveway across part of Government Lot 2, Section 31, Town 47 North, Range 2 West, described as follows: Commencing at the West
This proclamation does not affect title to the land described above, nor does it affect any valid existing easements for public roads and highways, for public utilities and for railroads and pipelines and any other rights-of-way or reservations of record.
Bureau of Land Management, Interior.
Notice of realty action, lease of public land.
F.K. (Red) Starr (Applicant) has submitted an application for authorization to construct a driveway and parking lot on public lands to be used in conjunction with his commercial recreational river boat business. This land has been examined and found suitable for lease under the provisions of Section 302 of the Federal Land Policy and Management Act of 1976 and regulations at 43 CFR Part 2920.
The land is described as follows:
Containing approximately 2 acres.
The subject lands were withdrawn on February 7, 1964, by Public Land Order (PLO) 3324, for use as public recreation area and preservation of public resource values. The subject lands have also been selected by Eklutna, Inc. under section 12 (a) of the Alaska Native Claims Settlement Act (ANCSA). Lands are scheduled for conveyance as early as FY 2001. Upon conveyance of all right, title, and interest under ANCSA, PLO 6590 then revokes PLO 3324 for lands conveyed. Eklutna, Inc. has concurred with the proposed lease.
The Applicant shall reimburse the United States for reasonable administrative fees and for monitoring of construction, operation, maintenance, and rehabilitation of the land authorized. The reimbursement of cost shall be in accordance with the provisions of 43 CFR 2920.6. The lease will be offered for a term of 5 years or 60 days after Eklutna, Inc. receives title to the land, whichever occurs first. The Applicant will be required to pay rent annually at no less than fair market value.
The Applicant has also applied for a Special Recreation Permit.
Interested parties may submit comments for a period of 45 days from the publication of this Notice to the Field Manager, Anchorage Field Office, 6881 Abbott Loop Road, Anchorage, Alaska 99507-2599. In the absence of a timely objection, this proposal shall become the final decision of the Department of the Interior.
Callie Webber, Anchorage Field Office, Bureau of Land Management, 6881 Abbott Loop Road, Anchorage, Alaska, 99507-2599; (907) 267-1272 or (800) 478-1263.
Bureau of Reclamation, Interior.
Notice of availability of the Final Environmental Impact Report/Final Environmental Impact Statement (FEIR/FEIS).
Pursuant to the National Environmental Policy Act (NEPA) of 1969 (as amended) and the California Environmental Quality Act (CEQA), the Bureau of Reclamation (Reclamation) and Contra Costa Water District (CCWD or District) prepared a joint FEIR/FEIS for CCWD's Multi-Purpose Pipeline (MPP) Project. The MPP Project would increase the reliability and capacity of the District's raw water delivery system. The MPP Project is being designed not only to remedy immediate canal capacity constraints but also to help meet long-term (year 2020) water demands for raw water, improve firefighting flows following an emergency or natural disaster such as an earthquake, provide an emergency water supply to municipal customers from either the east side or west side of the service area, provide alternate water conveyance capacity to facilitate temporary canal shut-downs and maintenance during low demand periods, increase operational flexibility by providing the capability of delivering water from the west side of the system or the east side of system, and minimize cost and environmental impacts to existing and new customers.
Reclamation will not make a decision on the proposed action until 30 days after this notice of release of the FEIR/FEIS. After August 10, 2000, the end of the 30-day waiting period, Reclamation will complete a Record of Decision (ROD). The ROD will state the action that will be implemented and will discuss all factors leading to the decision.
Copies of the FEIR/FEIS may be requested from Dr. Gregory Gartrell, Director of Planning, CCWD, 2300 Stanwell Drive, Concord CA 94524; telephone: (925) 688-8100 or Ms. Rossana Riggs, Administrative Secretary, CCWD, 2300 Stanwell Drive, Concord CA 94524; telephone: (925) 688-8147.
Copies of the FEIR/FEIS are available for public inspection and review. These locations are listed in the
Dr. Gregory Gartrell, CCWD, telephone: (925) 688-8100; or Mr. Robert B. Eckart, Environmental Specialist, Bureau of Reclamation, 2800 Cottage Way, Sacramento CA 95825; telephone: (916) 978-5051.
The proposed action is to implement a Multi-Purpose Pipeline Project to increase the capacity and reliability of the District's raw water delivery system. The District currently transports raw (untreated) water through the Contra Costa Canal, which is owned by Reclamation and, under contract, is operated and maintained by the District. The canal is the District's only raw water conveyance facility; it is vulnerable to damage in an earthquake or other emergency, which could result in extended water shortages. In addition, the canal does not have adequate conveyance capacity to deliver water to meet existing plus projected future demands within the District's service area. The District proposes to increase the capacity and reliability of the raw water delivery system through the construction of the MPP, a Raw Water Pipeline, and ancillary facilities in northern Contra Costa County. The 20-mile MPP would carry treated water from the Randall-Bold Water Treatment Plant in Oakley to the District's Treated Water Service Area. With a capacity of 25 million gallons per day, the MPP would free up capacity in the canal that is currently used to meet customer demands in the Treated Water Service Area. The proposed 4-mile-long Raw Water Pipeline would be constructed to bypass an existing bottleneck along the canal.
CCWD was formed in 1936 under the authority of the State Water Code. CCWD obtains raw water primarily from Reclamation's Contra Costa Canal, an element of the Central Valley Project. CCWD's raw water comes primarily from Rock Slough and Old River, east of Oakley, the source of which is the Sacramento-San Joaquin Delta. The water is pumped the first 7 miles of the Contra Costa Canal and then flows by gravity approximately 20 miles to Mallard Reservoir and Martinez Reservoir. Mallard Reservoir, north of the City of Concord, provides raw water storage for the adjacent Bollman Water Treatment Plant, which supplies potable water to the Treated Water Service Area. Martinez Reservoir provides flow regulation for the Contra Costa Canal.
The FEIR/FEIS (consisting of the DEIR/DEIS and the Response to Comments Document) evaluates in detail two alternatives, one of which is the proposed action, two subalternatives, and a No-Action Alternative. The FEIR/FEIS considers the environmental effects of the these alternatives in all topical areas required under NEPA and CEQA. CCWD and Reclamation have identified the Canal Alignment as the preferred alternative. The MPP Project EIR/EIS focuses on the impacts of pipeline construction and operation, including impacts on land use, traffic, recreation facilities, threatened and endangered species, surface water, and ground water.
Notice of the draft environmental impact report/draft environmental impact statement (DEIR/DEIS) was published in the
Bureau of Reclamation, Office of Policy, Room 7456, 1849 C Street, NW, Washington DC 20240; telephone: (202) 208-4662
• Bureau of Reclamation, Denver Office Library, Building 67, Room 167, at the Denver Federal Center, 6th and Kipling in Denver CO 80225; telephone: (303) 445-2072.
• Bureau of Reclamation, Public Affairs Office, 2800 Cottage Way in Sacramento CA 95825-1898; telephone: (916) 978-5100.
• Contra Costa Water District, Public Reading Room at 1331 Concord Ave in Concord CA 94524; telephone: (925) 688-8312.
• Antioch Branch Library at 501 W. 18th Street in Antioch CA 94509.
• Bay Point Branch Library at 205 Pacifica Avenue in Pittsburg CA 94565.
• Pittsburg Branch Library at 80 Power Avenue in Pittsburg CA 94565.
• Oakley Branch Library at 118 East Ruby in Oakley CA 94561.
• Concord Branch Library at 2900 Salvio in Concord CA 94519.
• Contra Costa County Public Library at 1750 Oak Park Boulevard in Pleasant Hill CA 94523.
Pursuant to the Government in the Sunshine Act (Public Law 94-409) [5 U.S.C. Section 552b].
Department of Justice, United States Parole Commission.
10:00 a.m., Wednesday, July 12, 2000.
300 Indiana Avenue, NW., Main Floor, Washington, DC 20001.
Open.
The following matters have been placed on the agenda for the open Parole Commission meeting:
1. Approval of minutes of previous Commission meeting.
2. Reports from the Chairman, Commissioners, Legal, Chief of Staff, Case Operations, and Administrative Sections.
3. Discussion of proposed changes to the Interim Rules and Proposed Rules for District of Columbia Code offenders and Approval of the Proposed Rules as Final Rules.
Sam Robertson, Case Operations, United States Parole Commission, (301) 492-5962.
Pursuant to the Government in the Sunshine Act (Public Law 94-409) [5 U.S.C. Section 552b].
Department of Justice, United States Parole Commission.
3 p.m., Wednesday, July 12, 2000.
U.S. Parole Commission, 5550 Friendship Boulevard, 4th Floor, Chevy Chase, Maryland 20815.
Closed—Meeting.
The following matter will be considered during the closed portion of the Commission's Business Meeting:
Appeals to the Commission involving approximately two cases decided by the National Commissioners pursuant to a reference under 28 CFR 2.27. These cases were originally heard by an examiner panel wherein inmates of Federal prisons have applied for parole or are contesting revocation of parole or mandatory release.
Sam Robertson, Case Operations, United States Parole Commission. (301) 492-5962.
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at Tempset, Inc., St. Louis, Missouri. The application contained no new substantial information which would bear importantly on the Department's determination. Therefore, dismissal of the application was issued.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than July 20, 2000.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than July 20, 2000.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on June 19, 2000, in response to a petition filed on the same date on behalf of workers at Art Craft Optical Company, Rochester, New York.
The company official who filed the petition has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than July 20, 2000.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than July 20, 2000.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the U.S. Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on September 10, 1998 applicable to workers of Black Warrior Wireline Corp. located in Odessa, Texas. The notice was published in the
At the request of the company, the Department reviewed the certification for workers of the subject firm. The workers are engaged in occupations related to the production of crude oil and natural gas. New information shows that Boone Wireline Co., Inc. is a wholly owned subsidiary of Black Warrior Wireline Corp. located in Odessa, Texas. The company also reports that workers separated from employment at Black Warrior had their wages reported under a separate unemployment insurance (UI) tax account for Boone Wireline Co., Inc. also located in Odessa, Texas. Based on these findings, the Department is amending the certification to reflect this matter.
The intent of the Department's certification is to include all workers of Black Warrior Wireline Corp. who were adversely affected by increased imports.
The amended notice applicable to TA-W-34,841 is hereby issued as follows:
“All workers of Black Warrior Wireline Corp., Boone Wireline Co., Inc., Odessa, Texas who became totally or partially separated from employment on or after July 22, 1997 through September 10, 2000 are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Notice of Certification Regarding Eligibility to Apply for Worker Adjustment Assistance on June 6, 2000, applicable to workers of Donnkenny Apparel, Inc., Floyd and Independence, Virginia. The notice will be published soon in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers produce ladies' sportswear (pants and skirts). New information shows that the Department inadvertently included the workers of the Floyd, Virginia location of Donnkenny Apparel in its certification. Findings show that a previous certification, TA-W-34,806B, was issued on October 22, 1998, covering the same worker group, who were engaged in employment related to the production of ladies' sportswear (pants and skirts). That certification expires October 22, 2000.
Based on these findings, the Department is amending the certification to limit coverage to only workers of Donnkenny Apparel, Inc., Independence, Virginia.
The intent of the Department's certification is in include all workers of Donnkenny Apparel, Inc., Independence, Virginia adversely affected by increased imports.
The amended notice applicable to TA-W-37,547 is hereby issued as follows:
All workers of Konnkenny Apparel, Inc., Independence, Virginia who became totally or partially separated from employment on or after March 16, 1999 through June 6, 2002 are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.''
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on April 24, 2000, in response to a worker petition which was filed on the same date on behalf of workers at Furniture Crafters Grants Pass, Oregon.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on May 30, 2000, in response to a petition filed on the same date on behalf of workers at Glacier Gold Compost, Incorporated, Olney, Montana.
The company official submitting the petition has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on May 15, 2000, in response to a petition filed by a company official on behalf of workers at Johnson Controls, Incorporated, Goshen, Indiana.
The company official and union official submitting the petition have requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on June 12, 2000 in response to a petition filed by a company official on behalf of workers at Shepherd Operating, Inc., Midland, Texas.
The workers of the subject facility were separated from the subject firm more than one year prior to the date of the petition. In accordance with section 223(b)(1) of the Trade Act of 1974, no certification may apply to any worker whose last total or partial separation occurred more than one year before the date of the petition. The date of the petition is June 2, 2000, and the company closed March 31, 1999. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 USC 2273), an investigation was initiated on June 12, 2000 in response to a petition filed by the International Association of Machinists and Aerospace Workers on behalf of workers and former workers at Ametek U.S. Gauge, U.S. Division, Sellersville, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (P.L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on May 1, 2000 in response to a petition filed on behalf of workers at Johnson Controls, Incorporated, Goshen, Georgia.
In a letter dated June 5, 2000, the petitioners requested that the petition for NAFTA-TAA be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called NAFTA-TAA and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2331), an investigation was initiated on April 27, 2000, in response to a petition filed on behalf of workers at Cooper Energy Services, C-B Reciprocating Products, Grove City, Pennsylvania. Cooper Energy Services is a division of Cooper Cameron Corporation. Workers produced cast and ductile iron castings.
The Department has determined upon reconsideration that the worker group for which the petition was filed is eligible to apply for transitional adjustment assistance (NAFTA-003527). Due to the foregoing determination, an active certification exists for these workers. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on June 2, 2000, in response to a petition filed on behalf of workers at Invensys Best Power, Necedah, Wisconsin.
In a statement dated June 26, 2000, an employee submitting the petition requested that the petition for NAFTA-TAA be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on May 22, 2000 in response to a petition filed on behalf of workers at Mediacopy.
In a letter dated June 27, 2000, the petitioner requested that the petition for NAFTA-TAA be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-1 concerning transitional adjustment assistance, hereinafter called NAFTA-TAA and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 USC 2331), an investigation was initiated on May 8, 2000, in response to a petition filed on behalf of workers at Southland Manufacturing Company, Inc., Ashland, Alabama. Workers produce men's slacks.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation has been terminated.
A Trade Adjustment Assistance investigation (TA-W-37, 719) to determine worker eligibility for benefits under the Trade Act of 1974, was instituted on May 30, 2000. A
The Marine Mammal Commission will meet in executive session on July 10, 2000.
901 17th Street, N.W., Washington, D.C. 20006
This meeting of the Marine Mammal Commission will consider candidates for the position of Executive Director of the Commission and, as provided for in subsection (c)(2) and (c)(6) of the Government in the Sunshine Act, will be closed to the public.
John R. Twiss, Jr., Executive Director, Marine Mammal Commission, 4340 East-West Highway, Room 905, Bethesda, MD 20814, 301/504-0087.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the NASA Advisory Council, Aero-Space Technology Advisory Committee, Goals Subcommittee.
Monday, August 14, 2000, 8:30 a.m. to 4 p.m.
National Aeronautics and Space Administration, Room 9H40, 300 E Street, SW, Washington, DC 20546.
Ms. Mary-Ellen McGrath, Office of Aerospace Technology, National Aeronautics and Space Administration, Washington, DC 20546 (202/358-4729).
The meeting will be open to the public up to the seating capacity of the room. The agenda for the meeting is as follows:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the NASA Advisory Council, Aero-Space Technology Advisory Committee.
Tuesday, August 15, 2000, 8:30 a.m. to 5:00 p.m.; and Wednesday, August 16, 2000, 8:00 a.m. to 12:00 Noon.
National Aeronautics and Space Administration, Room 6H46, 300 E Street, SW, Washington, DC 20546.
Ms. Mary-Ellen McGrath, Office of Aerospace Technology, National Aeronautics and Space Administration, Washington, DC 20546 (202/358-4729).
The meeting will be open to the public up to the seating capacity of the room. The agenda for the meeting is as follows:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
National Council on Disability.
This notice sets forth the schedule and proposed agenda of the forthcoming quarterly meeting of the National Council on Disability, Notice of this meeting is required under Section 522b(e)(1) of the Government in the Sunshine Act, (P.L. 94-409).
August 7-9, 2000, 8:30 a.m. to 5:00 p.m.
Wyndham City Center Hotel, 1143 New Hampshire Avenue, NW, Washington, DC.
Mark S. Quigley, Public Affairs Specialist, National Council on Disability, 1331 F Street NW, Suite 1050, Washington, DC 20004-1107; 202-272-2004 (Voice), 202-272-2074 (TTY), 202-272-2022 (Fax).
The National Council on disability is an independent federal agency composed of 15 members appointed by the President and confirmed by the U.S. Senate. Its overall purpose is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all people with disabilities, regardless of the nature of severity of the disability; and to empower people with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.
Those needing interpreters or other accommodations should notify the National Council on disability prior to this meeting.
People with environmental illness must reduce their exposure to volatile chemical substances in order to attend this meeting. In order to reduce such exposure, we ask that you not wear perfumes or scents at the meeting. We also ask that you smoke only in designated areas and the privacy of your room. Smoking is prohibited in the meeting room and surrounding area.
This quarterly meeting of the National Council on Disability will be open to the public.
The proposed agenda includes:
Records will be kept of all National Council on Disability proceedings and will be available after the meeting for public inspection at the National Council on Disability.
Pursuant to delegation by the Commission dated December 29, 1972, published in the
This Board is being established pursuant to the request of Western Soil, Inc., for a hearing regarding an Order issued by the Director, Office of Enforcement, dated April 12, 2000, entitled “Order Imposing Civil Monetary Penalty” (65 FR 21,489 (Apr. 21, 2000)).
The Board is comprised of the following administrative judges:
All correspondence, documents and other materials shall be filed with the Judges in accordance with 10 CFR § 2.701.
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Facility Operating License No. R-84, issued to Armed Forces Radiobiology Research Institute (the licensee) for operation of their research reactor.
The proposed action would allow extension of the license expiration time from November 8, 2000, to August 1, 2004, for the Armed Forces Radiobiology Research Institute Research Reactor. The proposed action is in accordance with the licensee's application for amendment dated February 28, 2000. The licensee submitted an Environmental Report with its request for license extension.
The proposed action is needed to allow continued operation of the Armed Forces Radiobiology Research Institute Research Reactor in order to continue training, radiobiology research, and activation analysis activities beyond the current term of the license.
The Armed Forces Radiobiology Research Institute Research Reactor is located near the center of the National Naval Medical Center in Bethesda, Maryland in a metal and concrete building.
The Armed Forces Radiobiology Research Institute Research Reactor is a moderate power (1 megawatt), pool-type research reactor. The NRC licensed the facility in 1962 and the facility license was renewed in 1984. Since about 1981, the facility has operated about 28.8 megawatt-hours per year on average. During that time, the gaseous Argon-41 radiological release has been on average of 3.236 x 10
The NRC concludes that the radiological effects of the continued operation will be minimal based on past radiological releases. The radiological exposures for facility operations have been within regulatory limits. Conditions are not expected to change.
As for potential non-radiological impacts, the proposed action does not involve any historic sites. It does not affect non-radiological effluents and has no other environmental impact. Therefore, no significant non-radiological environmental impacts associated with the proposed action.
In addition, the environmental impact associated with operation of research reactors has been generically evaluated by the staff and is discussed in the attached generic evaluation. This evaluation concludes that no significant environmental impact is associated with the operation of research reactors licensed to operate at power levels up to and including 2 megawatts thermal. We have determined that this generic evaluation is applicable to operation of the Armed Forces Radiobiology Research Institute Research Reactor and that there are no special or unique features that would preclude reliance on the generic evaluation.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action. The proposed action will not increase the probability or consequences of accidents, no changes are being made in the types of any effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
An alternative to the proposed action for the research reactor facility is to deny the application (
This action does not involve the use of any resources not previously considered in the Environmental Assessment prepared for the renewal of Armed Forces Radiobiology Research Institute's license in January 1985.
On May 8, 2000, the staff consulted with the Maryland Department of Natural Resources Official, Rich McLean, regarding the environmental impact of the proposed action. Mr. McLean also contacted and coordinated review with Roland Fletcher, Manager Radiological Health Program, Air and Radiation Management Administration, Maryland Department of the Environment. The State officials had no comment.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated February 28, 2000. A hard copy is available for public inspection at the NRC's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC 20555. Publicly available records will also be accessible electronically from the ADAMS Public Library component on the NRC Web site,
This discussion deals with research reactors and critical facilities which are designed to operate at low power levels, 2 MWt and lower, and are used primarily for basic research in neutron physics, neutron radiography, isotope production, experiments associated with nuclear engineering, training and as a part of a nuclear physics curriculum. Operation of such facilities will generally not exceed a 5-day week, 8-hour day, or about 2000 hours per year. Such reactors are located adjacent to technical service support facilities with convenient access for students and faculty.
Sited most frequently on the campuses of large universities, the reactors are usually housed in already existing structures, appropriately modified, or placed in new buildings that are designed and constructed to blend in with existing facilities. However, the environmental considerations discussed herein are not limited to those which are part of universities.
There are no exterior conduits, pipelines, electrical or mechanical structures or transmission lines attached to or adjacent to the facility other than for utility services, which are similar to those required in other similar facilities, specifically laboratories. Heat dissipation is generally accomplished by use of a cooling tower located on the roof of the building. These cooling towers typically are on the order of 10′ x 10′ x 10′ and are comparable to cooling towers associated with the air-conditioning systems of large office buildings.
Make-up for the cooling system is readily available and usually obtained from the local water supply. Radioactive gaseous effluents are limited to Ar-41 and the release of radioactive liquid effluents can be carefully monitored and controlled. Liquid wastes are collected in storage tanks to allow for decay and monitoring prior to dilution and release to the sanitary sewer system. Solid radioactive wastes are packaged and shipped offsite for storage at NRC-approved sites. The transportation of such waste is done in accordance with existing NRC-DOT regulations in approved shipping containers.
Chemical and sanitary waste systems are similar to those existing at other similar laboratories and buildings.
Construction of such facilities invariably occurs in areas that have already been disturbed by other building construction and, in some cases, solely within an already existing building. Therefore, construction would not be expected to have any significant effect on the terrain, vegetation, wildlife or nearby waters or aquatic life. The societal, economic and aesthetic impacts of construction would be no greater than those associated with the construction of a large office building or similar research facility.
Release of thermal effluents from a reactor of less than 2 MWt will not have a significant effect on the environment. This small amount of waste heat is generally rejected to the atmosphere by means of small cooling towers. Extensive drift and/or fog will not occur at this low power level.
Release of routine gaseous effluents can be limited to Ar-41, which is generated by neutron activation of air. Even this will be kept as low as practicable by using gases other than air for supporting experiments. Yearly doses to un-restricted areas will be at or below established guidelines in 10 CFR Part 20 limits. Routine releases of radioactive liquid effluents can be carefully monitored and controlled in a manner that will ensure compliance with current standards. Solid radioactive wastes will be shipped to an authorized disposal site in approved containers. These wastes should not require more than a few shipping containers a year.
Based on experience with other research reactors, specifically TRIGA reactors operating in the 1 to 2 MWt range, the annual release of gaseous and liquid effluents to unrestricted areas should be less than 30 curies and 0.01 curies, respectively.
No release of potentially harmful chemical substances will occur during normal operation. Small amounts of chemicals and/or high-solid content water may be released from the facility through the sanitary sewer during periodic blowdown of the cooling tower or from laboratory experiments.
Other potential effects of the facility, such as aesthetics, noise, societal or
Accidents ranging from the failure of experiments up to the largest core damage and fission product release considered possible result in doses that are less than 10 CFR Part 20 guidelines and are considered negligible with respect to the environment.
The unavoidable effects of construction and operation involve the materials used in construction that cannot be recovered and the fissionable material used in the reactor. No adverse impact on the environment is expected from either of these unavoidable effects.
To accomplish the objectives associated with research reactors, there are no suitable alternatives. Some of these objectives are training of students in the operation of reactors, production of radioisotopes, and use of neutron and gamma ray beams to conduct experiments.
The long-term effects of research facilities are considered to be beneficial as a result of the contribution to scientific knowledge and training. Because of the relatively small amount of capital resources involved and the small impact on the environment, very little irreversible and irretrievable commitment is associated with such facilities.
The costs are on the order of several millions of dollars with very little environmental impact. The benefits include, but are not limited to, some combination of the following: conduct of activation analyses, conduct of neutron radiography, training of operating personnel, and education of students. Some of these activities could be conducted using particle accelerators or radioactive sources which would be more costly and less efficient. There is no reasonable alternative to a nuclear research reactor for conducting this spectrum of activities.
The staff concludes that there will be no significant environmental impact associated with the licensing of research reactors or critical facilities designed to operate at power levels of 2 MWt or lower and that no environmental impact statements are required to be written for the issuance of construction permits or operating licenses for such facilities.
Nuclear Regulatory Commission.
Notice of Availability of Environmental Assessment and Finding of No Significant Impact and Opportunity to Request a Hearing on Amendment of Materials License SNM-42, BWX Technologies, Inc.
The U.S. Nuclear Regulatory Commission is considering the amendment of Special Nuclear Material License SNM-42 to exempt BWX Technologies, Inc. from the beryllium-to-fissile mass ratio limit specified in the fissile material exemption standards of 10 CFR 71.53.
The Nuclear Regulatory Commission (NRC) staff has evaluated the environmental impacts of the exemption of BWX Technologies, Inc. (BWXT) from the beryllium-to-fissile mass ratio limits specified in the fissile material exemption standards of 10 CFR 71.53 . This Environmental Assessment (EA) has been prepared pursuant to the Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500-1508) and NRC regulations (10 CFR part 51) which implement the requirements of the National Environmental Policy Act (NEPA) of 1969. The purpose of this document is to assess the environmental consequences of the proposed license amendment.
The BWXT facility in Lynchburg, VA is authorized under SNM-42 to possess nuclear materials for the fabrication and assembly of nuclear fuel components. The facility supports the U.S. naval reactor program, fabricates research and university reactor components, and manufactures compact reactor fuel elements. The facility also performs recovery of scrap uranium. Research and development activities related to the fabrication of nuclear fuel components are also conducted.
In accordance with 10 CFR part 51, this EA (1) presents information and analysis for determining whether to issue a Finding of No Significant Impact (FONSI) or to prepare an Environmental Impact Statement (EIS); (2) fulfills the NRC's compliance with the National Environmental Policy Act (NEPA) when no EIS is necessary; and (3) facilitates preparation of an EIS if one is necessary. Should the NRC issue a FONSI, no EIS would be prepared and the license amendment would be granted.
The proposed action is to amend NRC Materials License SNM-42 to exempt the licensee from the beryllium-to-fissile mass ratio limit specified in the fissile material exemption standards of 10 CFR 71.53.
The proposed action would allow the licensee to transport uranium-beryllium waste with fission and activation products under the requirements of 10 CFR part 71. The licensee may use the fissile material exemption specified in 10 CFR 71.53 with an exemption to the 0.1 percent beryllium-to-fissile mass ratio limit.
The provisions of 10 CFR 71.53 exempt the shipment of material with limited fissile mass from the fissile material package standards in 10 CFR 71.55 and 71.59. The fissile material exemption in 10 CFR 71.53 is only valid for materials that contain a mass of beryllium that is less than 0.1 percent of the mass of fissile material. BWXT has identified waste material with a limited amount of fissile material, but with beryllium quantities that exceed the 0.1 percent beryllium-to-fissile mass ratio limit. BWXT needs to ship these wastes, which consist of large physical objects (
The alternatives available to the NRC are:
1. Approve the license amendment request as submitted; or
2. Deny the amendment request.
The affected environment for Alternative 1 would be the immediate vicinity of the vehicle used to transport the material to a licensed disposal facility.
The affected environment for Alternative 2 is the BWXT site. A full description of the site and its characteristics is given in the 1995 Environmental Assessment for the Renewal of the NRC license for BWXT. The BWXT facility is located on a 525 acre (2 km
Occupational health was also considered in the Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes (NRC, 1977). The average annual occupational dose to the driver(s) is estimated to be 8.7 mSv (870 mrem), which is below the 10 CFR part 20 requirement of 50 mSv (5000 mrem). The Department of Transportation (DOT) regulations in 49 CFR 177.842(g) require that the radiation dose may not exceed 0.02 mSv (2 mrem) per hour in any position normally occupied in a motor vehicle. Shipment of these materials would not affect the assessment of environmental impacts or the conclusions in the Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes (NRC, 1977).
The occupational health impacts associated with the denial of this amendment request were evaluated. The material to be shipped is currently packaged and stored in containers which are not approved by the NRC. In order to ship the material in NRC-approved packages, the material will need to be processed and repackaged. The licensee would need to construct a containment area in order to limit personnel exposure to airborne beryllium. Actions would be taken to control occupational exposure such as limited exposure times, bioassays, and respirator use. The risk for worker exposure to uranium and beryllium would increase as a result of denying this amendment request.
The action that the NRC is considering is approval of an amendment request to a Materials license issued pursuant to 10 CFR part 70. The proposed action is to amend NRC Materials License SNM-42 to exempt the licensee from the beryllium-to-fissile mass ratio limit specified in the fissile material exemption standards of 10 CFR 71.53. The alternatives available to the NRC are:
1. Approve the license amendment request as submitted; or
2. Deny the amendment request.
Based on its review, the NRC staff has concluded that the environmental impacts associated with the proposed action do not warrant denial of the license amendment. In addition, the denial of the amendment request would require the licensee to ship the waste in packages approved by the NRC, thereby increasing the risk of beryllium exposure to personnel due to significant cutting and processing. The staff considers that Alternative 1 is the appropriate alternative for selection.
The NRC contacted a representative from the Virginia Department of Health in correspondence dated May 25, 2000.
U.S. Nuclear Regulatory Commission (NRC), December 1977, “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes.” U.S. Nuclear Regulatory Commission (NRC), August 1995, “Environmental Assessment for Renewal of Special Nuclear Material License SNM-42.”
Based on an evaluation of the environmental impacts of the amendment request, the NRC has determined that the proper action is to issue a FONSI in the
The Commission has prepared an Environmental Assessment related to the amendment of Special Nuclear Material License SNM-42. On the basis of the assessment, the Commission has concluded that environmental impacts associated with the proposed action would not be significant and do not warrant the preparation of an Environmental Impact Statement. Accordingly, the Commission is making a Finding of No Significant Impact.
The Environmental Assessment and the documents related to this proposed action are available for public inspection and copying at the Commission's Public Document Room at the Gelman Building, 2120 L Street NW., Washington, DC.
Based on the Environmental Assessment and Finding of No Significant Impact, and a staff safety evaluation to be completed, NRC is preparing to amend License SNM-42. The NRC hereby provides that this is a proceeding on an application for amendment of a license falling within the scope of Subpart L, “Informal Hearing Procedures for Adjudication in Materials Licensing Proceedings,” of NRC's rules and practice for domestic licensing proceedings in 10 CFR part 2. Pursuant to § 2.1205(a), any person whose interest may be affected by this proceeding may file a request for a hearing in accordance with § 2.1205(d). A request for a hearing must be filed within thirty (30) days of the date of publication of this
A request for hearing or petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission either:
1. By delivery to the Rulemakings and Adjudications Staff of the Secretary at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738; or
2. By mail or telegram addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulemakings and Adjudications Staff.
In addition to meeting other applicable requirements of 10 CFR part 2 of the NRC's regulations, a request for a hearing filed by a person other than an applicant must describe in detail:
1. The interest of the requester in the proceeding;
2. How that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing, with particular reference to the factors set out in § 2.1205(h).
3. The requester's areas of concern about the licensing activity that is the subject matter of the proceeding; and
4. The circumstances establishing that the request for a hearing is timely in accordance with § 2.1205(d).
In accordance with 10 CFR Section 2.1205(f), each request for a hearing must also be served, by delivering it personally or by mail to:
1. The applicant, BWX Technologies, P.O. Box 785, Lynchburg, VA; and
2. The NRC staff, by delivering it to the Executive Director for Operations, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, or by mail, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
The NRC contact for this licensing action is Thomas Cox. Mr. Cox may be contacted at (301) 415-8107 or by e-mail at THC@nrc.gov for more information about this licensing action.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from certain requirements of 10 CFR part 73 for Facility Operating License No. DPR-13, issued to Southern California Edison, (the licensee), for the San Onofre Nuclear Generating Station, Unit 1, a permanently shutdown nuclear reactor facility located in San Diego County, California.
The proposed action would modify security requirements to eliminate certain equipment, to relocate certain equipment, to modify certain procedures, and reduce the number of armed responders, due to the permanently shutdown and defueled status of the San Onofre Nuclear Generating Station, Unit 1.
The proposed action is in accordance with the licensee's application for exemption dated April 28, 2000. The requested action would grant an exemption from certain requirements of 10 CFR 73.55, “Requirements for physical protection of licensed activities in nuclear power reactors against radiological sabotage,” specifically from 10 CFR 73.55(a), (c)(1), (c)(3), (c)(4), (c)(5), (c)(6), (c)(7), (d)(1), (e)(1), (e)(2), (h)(3) and (h)(6) as identified in the licensee's application for exemption dated April 28, 2000.
San Onofre Nuclear Generating Station Unit 1 was permanently shut down on November 20, 1992. The reactor was permanently defueled and the possession-only license became effective on March 9, 1993. In this permanently shutdown condition, the facility poses a reduced risk to public health and safety. Because of this reduced risk, certain requirements of 10 CFR 73.55 are no longer appropriate. An exemption is required from portions of 10 CFR 73.55 to allow the licensee to implement a revised security plan that is appropriate for the permanently shutdown and defueled reactor facility.
The NRC has completed its evaluation of the proposed action and concludes that granting an exemption to those portions of 10 CFR 73.55 identified above would not have a significant impact on the environment. Unit 1 has not operated since November 1992. As demonstrated by the licensee in its exemption application, the consequences of any possible act of sabotage are thus reduced, due to the reduced amount of radioactive material available for possible release from the Unit 1 spent fuel pool.
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of any effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential nonradiological impacts, the proposed action does not involve any historic sites. It does not affect nonradiological plant effluents and has no other environmental impact. Therefore, there
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
This action does not involve the use of any resources not previously considered in the Final Environmental Statement for the San Onofre Nuclear Generating Station, Unit 1.
In accordance with its stated policy, on May 31, 2000, the staff consulted with the State of California official, Mr. Steven Hsu of the Radiologic Health Services, State Department of Health Services, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated April 28, 2000 (Accession No. ML003709607), which is available for public inspection at the Commission's Public Document Room, The Gelman Building, 2120 L Street, NW., Washington, DC. Publicly available records will be accessible electronically from the ADAMS Public Library component on the NRC Web site, http://www.nrc.gov (the Electronic Reading Room).
Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549.
Extension:
Notice is hereby given that, under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Rules 1(a) and 1(b) [17 CFR 250.1(a), 250.1(b)] and forms U5A and U5B [17 CFR 259.5a, 259.5b] implement Sections 5(a) and 5(b) of the Public Utility Holding Company Act of 1935, as amended (“Act”) which require any holding company or any person proposing to become a holding company to file with the Commission a notification of registration and registration statement, respectively. The information is necessary for the Commission to determine whether a new registrant is in compliance with the requirements of the Act. The initial burden of this requirement is approximately 80 hours per respondent. Thereafter there is no annual burden. The Commission has been receiving four filings each year, with a total annual burden of 320 hours. Companies filing under this rule are required to retain records for a period of 10 years, and provision of the information is mandatory. The retention time period allows the Commission the opportunity to perform its audit functions. Responses are not kept confidential.
Rule 3 [17 CFR 250.3] permits a bank that is also a public utility holding company to claim an exemption from the requirements of the Act, through the submission of an annual statement on Form U-3A3-1 [17 CFR 259.403]. The rule and the form are used by the Commission staff to expedite its review of compliance with Section 3(a)(4) of the Act. Rule 3 and form U-3A3-1 permit a bank that is also a public utility holding company to avoid the burdens associated with an application for an exemption from the requirements of the Act. An application for an exemption would involve a formal order, which might require an administrative hearing and which otherwise would consume a significant amount of Commission resources. Each year the Commission receives five submissions from banks, each takes about two hours to complete. Thus a total annual burden of ten hours is imposed. Provision of this information is required. Banks that file under this rule are required to retain records for a period of ten years. This retention period is consistent with requirements imposed by federal agencies that regulate banks. Banks are allowed to request confidential treatment of information filed under this rule.
Rule 26 [17 CFR 250.26] sets forth the financial statement and recordkeeping requirements for registered holding companies and their subsidiaries. This information collection is of fundamental importance to the Commission in the review of financial statements of registered public utility holding companies. The Commission reviews financial statements in connection with its review of proposals submitted for approval under several provisions of the Act. Provision of this information is required. The rule imposes no annual burden because there is no form, as such, under Rule 26 and because the information is required for Form U5S, which is subject to separate OMB review. In addition, there is no requirement for record retention under this rule.
Rule 44 [17 CFR 250.44] prohibits sales of utility securities or of utility assets owned by registered public utility holding companies, not otherwise exempt under Commission regulations, except under a declaration that notifies the Commission of the proposed sale and that becomes effective. The information is essential to Commission administration of Section 12(d) of the Act and is not otherwise available. The Commission analyzes the information to determine if the proposed sale is consistent with the public interest. Provision of this information is
Rule 62 [17 CFR 250.62] prohibits the solicitation of authorization regarding any security of a regulated company in connection with reorganization subject to Commission approval or regarding any transaction which is the subject of an application or declaration, except under a declaration regarding the solicitation which has become effective. The information is necessary to permit the Commission to adequately enforce Sections 12(e) and 11(g) of the Act. The rule and Form U-R-1 [17 CFR 259.221] impose a total annual burden of 35 hours on 7 companies, who each spend 5 hours, and file as necessary.
Rule 88 [17 CFR 250.88] requires the filing of Form U-13-1 [17 CFR 259.113] for a mutual or subsidiary service company performing services for affiliate companies of a holding company system. Twenty-two respondents initially spend a total of approximately eighty-eight hours meeting this requirement. Thereafter, there is no annual burden. Service companies filing under this rule are required to retain records for a period of 10 years, and provision of the information is mandatory. The retention time period allows the Commission the opportunity to perform its audit functions. Responses are not kept confidential.
Rule 95 [17 CFR 250.95] requires service companies to file reports on Form U-13E-1 [17 CFR 259.213] with the Commission prior to their performance of contracts for registered holding companies or their subsidiaries, for services, construction, or sales of goods. The Commission requires this information to enforce the provisions of Section 13(e) and of Section 13(f) of the Act. The enforcement of these statutes would be compromised without the collection of this information, which is not available from other sources. Provision of this information is required. Companies that file under this rule are required to retain records for a period of six years. This retention period allows the Commission to perform its audit functions. One company meets this requirement on an annual basis with an estimated average burden of 2 hours. This information is not kept confidential.
Form U-7D [17 CFR 259.404] establishes the filing company's right to the exemption authorized for financing entities holding title to utility assets leased to a utility company. The information is necessary for the Commission to determine whether a company is exempt from, or governed by, the Act. The form imposes a total annual burden of 72 hours on 24 respondents, who each spend 3 hours annually preparing and filing 1 response. Companies filing under this rule are required to retain records for a period of 10 years, and provision of the information is mandatory. The retention time period allows the Commission the opportunity to perform its audit functions, and generally coincides with companies' obligation period under their respective leases. Responses are not kept confidential.
The estimates of average burden hours are made for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms.
It should be noted that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written 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 will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Michael E. Bartell, Associate Executive Director, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by July 25, 2000, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After July 25, 2000, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Allegheny Energy, Inc. (“Allegheny”), 10435 Downsville Pike, Hagerstown, Maryland 21470, a registered public utility holding company, Monongahela Power Company (“Monongahela Power”), 1310 Fairmont Avenue, Fairmont, West Virginia 23219, a wholly owned combination gas and electric utility subsidiary of Allegheny and Mountaineer Gas Company (“Mountaineer Gas”), 414 Summers Street, Charleston, West Virginia 25301, an indirectly owned gas utility subsidiary of Energy Corporation of America (“ECA”), a Colorado public utility holding company claiming exemption from registration under section 3(a)(1) by rule 2 under the Act (collectively, “Applicants”), have filed an application-declaration under sections 3(a)(2), 6, 7, 9(a), 10, 11(b),
Allegheny proposes to acquire 100% of the outstanding securities of Mountaineer Gas. Mountaineer Gas is a directly owned subsidiary of Eastern Systems Corporation (“ESC”), a West Virginia holding company claiming exemption from registration under section 3(a)(1) by rule 2 under the Act and an indirectly owned subsidiary of ECA. Allegheny, ESC and ECA have entered into a stock purchase agreement under which Monongahela Power, as Allegheny's assignee, proposes to acquire 100% of the outstanding securities of Mountaineer Gas for approximately $223 million in cash and the assumption of $100 million in long-term debt (“Transaction”). The purchase price is subject to adjustment after closing based upon the closing date balance sheet.
Allegheny has three regulated public utility companies: Mononghela Power, a combination electric and gas utility which provides service to customers in West Virginia and Ohio; West Penn Power Company, an electric utility which provides service to customers in Pennsylvania; and The Potomac Edison Company, an electric utility which provides services to customers in Maryland, West Virginia, and Virginia. Collectively, the Allegheny system utilities do business as Allegheny Power. Allegheny Power, operating as a combination electric and gas system, delivers electric and gas to 1.4 million customers. Allegheny has several nonutility subsidiaries as well. For the twelve months ended December 31, 1999, Allegheny's revenues were approximately $2.8 billion.
Monongahela Power is headquartered in Fairmont, West Virginia. Monongahela Power provides electric service to approximately 351,000 West Virginia customers and approximately 28,000 Ohio customers. Monongahela Power, through its West Virginia Power gas division, provides natural gas service to approximately 24,000 customers in West Virginia.
Mountaineer Gas provides utility service to approximately 200,000 customers throughout West Virginia, including the cities of Wheeling, Martinsburg, Beckley, Huntington and Charleston. Mountaineer Gas' principal place of business is located in Charleston, West Virginia. Mountaineer Gas wholly owns Mountaineer Gas Services, which is primarily engaged in providing energy procurement and marketing services to Mountaineer Gas and owns approximately 375 wells and has gas storage facilities under contract. For the twelve months ended December 31, 1999, Mountaineer Gas had revenues of approximately $174 million. Mountaineer Gas' regulated activities contributed $162 million, or 94% of those revenues.
Allegheny seeks authorization to issue up to $162 million in long-term debt securities. Additionally, Allegheny seeks authorization to make a capital contribution of up to $165 million to Monongahela Power. The contribution will be funded through the requested debt securities issuance and $3 million in general funds. The contribution will be made in a combination of cash, guarantees or loans.
Monongahela Power seeks authority to issue up to $165 million in long-term debt securities for the purpose of acquiring Mountaineer Gas. Additionally, Monongahela Power seeks authorization to issue loans and guarantees to Mountaineer Gas in an aggregate amount up to $100 million. The amount of loans and guarantees issued is contingent upon the amount of Mountaineer Gas' debt assumed in the Transaction.
Upon completion of the acquisition, Mountaineer Gas seeks authority to issue up to $100 million in short-term debt. The short-term debt will be in the form of commercial paper and bank borrowings. The Applicants state that the short-term debt will be used primarily for financing ongoing operations.
All of the requested financing authority will have interest rates, fees, and expenses comparable to those obtainable by comparable entities issuing comparable securities with the same or similar terms and maturities.
The acquisition of the securities of Mountaineer Gas will be accounted for under the purchase method of accounting.
Following the acquisition of 100% of the securities of Mountaineer Gas, Mountaineer Gas will become a wholly owned subsidiary of Monongahela Power. Because Monongahela Power will acquire more than 10% of the stock of Mountaineer Gas, the Applicants are requesting an order under section 3(a)(2) of the Act exempting Monongahela Power from the provisions of the Act applicable to holding companies.
Once Mountaineer Gas becomes a subsidiary of Monongahela Power, the Applicants propose that Allegheny Energy Service Corporation, Allegheny's service company, will act as a service company for Mountaineer Gas.
For the Commission by the Division of Investment Management, pursuant to delegated authority.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of June, 2000. A copy of each application may be obtained for a fee at the SEC's Public Reference Branch, 450 Fifth St., NW, Washington, DC 20549-0102 (tel. 202-942-8090). An order granting each application will be issued unless the SEC orders a hearing. Interested persons may request a hearing on any application by writing to the SEC's Secretary at the address below and serving the relevant applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on July 25, 2000, and should be accompanied by proof of service on the applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary, SEC, 450 Fifth Street, NW, Washington, DC 20549-0609. For Further Information Contact: Diane L. Titus, at (202) 942-0564, SEC, Division of Investment Management, Office of
For the Commission, by the Division of Investment Management, pursuant to 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 July 10, 2000.
A closed meeting will be held on Thursday, July 13, 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) ad 17 CFR 200.402(a)(4), (8), (9)(A) and (10), permit consideration for the scheduled matters at the closed meeting.
The subject matters of the closed meeting scheduled Thursday, July 13, 2000 will be:
(1) Institution and settlement of injunctive actions; and
(2) 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”)
The BSE proposes to add rules relating to decimal pricing testing in order to prepare for the industry-wide conversion to decimal pricing. The text of the proposed rule change is available at the BSE and at the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The BSE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to add Section (10) (Decimal Pricing Testing) to Chapter XXXIII, Boston Exchange Automated Communication Order-routing Network (BEACON). Specifically, the Exchange seeks to change its rules to require member firms to participate in industry-wide testing of computer systems, as required, in order to prepare for the conversion to decimal pricing.
The Exchange, in cooperation with other self-regulatory organizations (“SROs”) has been preparing for a successful industry-wide conversion to decimal pricing. As several other SROs have proposed rules to require decimal testing by their members, the Exchange seeks to codify this requirement as well. The new Rule will require mandatory participation of Exchange members in the testing which will be taking place, and will require any firm which has an electronic interface with the Exchange to conduct testing between the electronic interface and the Exchange (“point-to-point testing”). In the case of a member firm that has an electronic interface through a third party service provider, point-to-point testing with the Exchange will not be required if (i) the member firm conducts successful testing with the service provider, (ii) the service provider conducts successful testing with the Exchange (on behalf of the member firm) and (iii) the Exchange agrees that no further testing is necessary.
The proposed Rule also details the reporting and documentation requirements for all members participating in either the point-to-point testing or the industry-wide testing. Specifically, member firms will be asked to provide reports as determined necessary by the Exchange throughout the course of testing. Additionally, all member firms will be required to keep, and make available for inspection, documentation of all the testing they do as part of the requirements of this Rule.
The Exchange represents that the statutory basis for the proposed rule change is Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 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
Copies of such filing will also be available for inspection and copying at the principal office of the BSE. All submissions should refer to File No. SR-BSE-00-07 and should be submitted by July 31, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to trade options on the Nasdaq 100 Index based on reduced-value level equal to one-tenth of its present value by multiplying the divisor used in calculating the Index by a factor of 10. In seeking approval to trade options based upon one-tenth of the value of the Nasdaq 100 Index, the Exchange represents that it is planning to list options on the reduced value Nasdaq 100 Index value at the same time it continues to list and trade options on the full value of the Nasdaq 100 Index. In connection with this change, the Exchange proposes to multiply by a factor of 10 the position and exercise limits for the one-tenth level index. When the Exchange trades full value and reduced value Nasdaq 100 options at the same time, the Exchange will require that the positions in the full value and reduced value contracts be aggregated for the purpose of determining compliance with the position and exercise limits. In addition, the Exchange proposes to amend Exchange Rule 24.9, Interpretation .01 to provide that the reduced-value Nasdaq 100 options will have a strike price interval of no less than $2.50. The text of the proposed rule change is available at the CBOE and at the Commission's Public Reference Room.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The CBOE began trading Nasdaq 100 Index (“NDX”) options in February 1994.
As a result, Nasdaq (the reporting authority for the Index) has approved CBOE's request to trade options based on a reduced index level equal to one-tenth of the Nasdaq-100 Index. In seeking approval to trade options based upon one-tenth of the value of the Nasdaq 100 Index, the Exchange represents that it is planning to list options on the reduced value Nasdaq 100 Index value at the same time it continues to list and trade options on the full value of the Nasdaq 100 Index. In addition, the trading symbol for options on the reduced-value Nasdaq 100 Index will no longer be NDX.
In addition to the strike price being reduced by one-tenth, the CBOE proposes to increase the position and exercise for the reduced value Nasdaq 100 Index by a factor of 10.
According to the Exchange, position limits were intended to prevent a particular customer or firm from manipulating the value of an index by limiting the notional value of an index that any particular person or firm could control. The proposed nominal increase (by ten times in the case of one-tenth value options) does not change the notional value that any particular
The Exchange currently intends to begin trading the reduced value contracts beginning on July 10, 2000. It is possible that the exchange will delay the introduction of the reduced value contracts until some later time depending on whether any business or operational issues arise. In any event, the Exchange will provide adequate advance notice to its member firms so that they may be prepared for the introduction of the reduced value contracts and so that they may in turn provide adequate notice to their customers. The Exchange has a strong interest in publicizing the introduction of the reduced value contracts and will take a number of measures to inform the firms and potential customers including publication of a regulatory circular, marketing brochures and notification through the Exchange's web site.
The Exchange expects that the proposed change will attract additional customer business in Nasdaq 100 Index options in those series in which retail customers are most interested in trading. For example, an April 4040 (at the money) call option series currently trades at approximately $20,500 per contract. With the index split, the same option series (once adjusted), with all else remaining equal, would trade at approximately $2,050 per contract. The Exchange believes that the proposed change will permit some investors to trade these options who have otherwise been priced out of the market due to the recent market surge. The Exchange believes that NDX options provide an important opportunity for investors to hedge and speculate upon the market risk associated with the stocks comprising this broad-based and widely followed index. By reducing the value of the index, such investors will be able to utilize this trading vehicle while extending a smaller outlay of capital. This should attract additional investors, and, in turn, create a more active and liquid trading environment.
The Exchange believes that reducing the value of the index does not raise manipulation concerns and will not cause adverse market impact, because the Exchange will continue to employ the same surveillance procedures and has proposed an orderly procedure to achieve the index split, including adequate prior notice to market participants.
The Exchange believes that the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5)
The CBOE does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Commission also notes that under Rule 19b-4(f)(6)(iii), the proposal does not become operative for 30 days after date of its filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. The CBOE requests a waiver of this 30-day period to begin trading the reduced-value options on July 10, 2000. The CBOE believes that acceleration of the operative date of the proposed rule is appropriate because it will allow the Exchange to offer investors a more affordable alternative to hedge their exposure to the Nasdaq 100 Index. According to the Exchange, the Nasdaq 100 Index has been especially volatile in the last few weeks and the acceleration of the proposed change will allow the Exchange to offer this more affordable hedging alternative to a time when it is most needed. In addition, the Exchange notes that the American Stock Exchange has a rule (Commentary .03 to Amex Rule 901C) that allows it to split an index without first submitting a filing. For the reasons discussed above, the Commission finds that the waiver of the 30-day period is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, as amended, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 27, 2000, the National Association of Securities Dealers, Inc. (“NASD”), on behalf of itself and the Boston Stock Exchange, Inc. (“BSE”), the Chicago Stock Exchange, Inc. (“CHX”), the Cincinnati Stock Exchange (“CSE”) and the Philadelphia Stock Exchange, Inc. (“Phlx”) submitted to the Securities and Exchange Commission (“Commission” or “SEC”) a proposal to extend the operation of a joint transaction reporting plan (“Plan”)
The Plan governs the collection, consolidation and dissemination of quotation and transaction information for Nasdaq/NM securities listed on an exchange or traded on an exchange pursuant to a grant of UTP.
The Plan provides for the collection from Plan Participants and the consolidation and dissemination to vendors, subscribers and others of quotation and transaction information in “eligible securities.”
In conjunction with the Plan, on a temporary basis, the Commission
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether it is consistent with the Act. The Commission continues to solicit comment regarding the BBO calculation, the trade through rule and any issues presented by changes occurring in the market place. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written communications relating to the proposal between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying at the Commission's Public Reference Room. All submissions should refer to File No. S7-24-89 and should be submitted by July 31, 2000.
The Commission finds that an extension of temporary approval of the operation of the Plan, as amended, through March 31, 2001, is appropriate and in furtherance of Section 11A of the Act.
The Commission also finds that it is appropriate to extend the exemptive relief from Rule 11Ac1-2 under the Act until the earlier of March 31, 2001, or until such time as the calculation methodology of the BBO is based on a price/size/time algorithm pursuant to a mutual agreement among the Participants approved by the Commission. The Commission further finds that it is appropriate to extend the exemptive relief from Rule 11Aa3-1 under the Act, that requires transaction reporting plans to include market identifiers for transaction reports and last sale data, to the BSE through March 31, 2001. The Commission believes that the extensions of the exemptive relief provided to vendors and the BSE, respectively, are consistent with the Act, the Rules thereunder, and specifically with the objectives set forth in Sections 12(f) and 11A of the Act and in Rules 11Aa3-1 and 11Aa3-2 thereunder.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The PCX proposes to adopt new Rule 1.15(b),
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for proposed rule change and discussed any comments it received on the proposed
As the securities industry prepares for the conversion to decimal pricing, testing by and among the various securities industry constituents will be necessary to avoid widespread systems problems. The PCX, in cooperation with the Commission and other self-regulatory organizations has been working toward a successful transition to decimal pricing. The purpose of proposed rule change is to require PCX member firms to participate in testing of computer systems designed to prepare for the industry conversion to decimal pricing.
Proposed Rule 1.15(b) would require PCX members to participate in testing of computer systems, in a manner and frequency prescribed by the Exchange. It is the PCX's understanding that other self-regulatory organizations, including the National Association of Securities Dealers, the New York Stock Exchange, the American Stock Exchange and the Chicago Board Options Exchange, are also proposing rules to require decimal pricing testing by their member organizations.
To ensure that the securities industry is adequately prepared to convert to decimals, the Securities Industry Association has undertaken to coordinate industry-wide testing. Testing will include, among others, exchanges, registered clearing corporations, data processors and broker-dealers. There are multiple industry-wide tests, the first of which occurred in April 2000. New Rule 1.15(b) will be employed to require mandatory testing of PCX member organizations in these tests, and further provides that any firm with an electronic interface with the Exchange will be required to conduct point-to-point testing with the Exchange. Point-to-point testing means testing between two entities, in this case between the member with the electronic interface and the Exchange.
The Exchange will require its members to participate in industry-wide testing to the extent those firms can be accommodated into the testing schedule. The Exchange would exercise its authority under this Rule to the extent it is deemed important for particular member organizations to participate and to the extent those member organizations choose not to participate voluntarily.
The proposed rule would also require member organizations to file reports with the PCX concerning the required tests in the manner and frequency required by the Exchange. A member organization that is subject to the Rule and fails to participate in the tests or fails to file any required reports will be subject to disciplinary action pursuant to Rule 10 of the Exchange's rules.
It should be noted that the Exchange believes that it currently has the authority without the approval of this Rule to require testing and reporting with respect to the implementation of decimal pricing under its broad authority to enforce the provisions of the Act and to ensure the safety of its marketplace. The Exchange believes, however, that its membership is better served by having the specifics of its intentions with respect to this matter defined in a stand-alone rule.
This Rule will expire automatically upon the full completion of decimal pricing implementation.
The Exchange represents that by adopting a new rule to help ensure the participation of Exchange members in important industry testing to prepare for the conversion to decimal pricing, the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested person are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room in Washington, DC.
Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-00-17 and should be submitted by July 31, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Phlx proposes to eliminate a reference to the semi-annual billing of dues in By-law Article XIV, Section 14-1 to reflect a recent amendment to the schedule of dues, fees and charges.
In its filing with the Commission, the Phlx included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to eliminate a reference to the semi-annual billing of dues in Article XIV of the By-laws to make Article XIV consistent with the recently amended schedule of dues, fees and charges.
The Phlx believes that the proposed rule change is consistent with Section 6 of the Act,
The Phlx does not believe that the proposed rule change will impose any burden on competition.
No written comments were received in response to Circular 57-00, dated March 29, 2000.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx. All submissions should refer to File No. SR-Phlx-00-45 and should be submitted by July 31, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On November 26, 1999, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
During the pendency of the permanent fee proposal, the Commission approved another proposed rule to implement the fee on a pilot basis. Specifically, on January 5, 2000, the Commission granted accelerated approval of the capital funding fee on a three-month pilot basis.
This order approves the permanent fee proposal, accelerates approval of Amendment No. 1, and solicits comments from interested persons on that Amendment.
The Phlx proposed to amend its schedule of dues, fees, and charges to charge a monthly capital funding fee of $1,500 per Exchange seat to seat owners
The Phlx represents that the capital funding fee is a part of its long-term financing plan.
In Amendment No. 1, the Phlx represents that it is a Delaware non-stock corporation, and states that it believes that assessing the capital funding fee on the owners of the Exchange's 505 memberships is appropriate under Delaware law. Amendment No. 1 states that Section 102(a)(4) of the Delaware General Corporation Law (“DGCL”) provides that the certificate of incorporation or by-laws of a non-stock corporation shall state the “conditions of membership of such corporations.”
Amendment No. 1 further states that, under Section 102(a)(3) of the DGCL, the certificate of incorporation of a Delaware corporation must state the “nature of the business or purposes to be conducted or promoted” by the corporation. The Phlx represents that Article Third of its Certificate of Incorporation provides that the nature of the business and the objects and purposes of the Exchange include the authority:
To act as and to provide a securities exchange where the corporation's members and other persons authorized by it can buy, sell, pledge, exchange, trade and deal in any article of commerce, including, without limitation, stocks, bonds, and other securities * * * and generally to operate as and perform all of the functions of a national securities exchange.
The Exchange also represents that Section 121(a) of the DGCL gives a corporation and its director's broad powers to conduct the operations and achieve the objects and purposes of the corporation. In addition to powers expressly granted by law or the certificate of incorporation, the corporation and its directors may exercise “any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business or purposes set forth in its certificate of incorporation.” Further, the Phlx asserts that under Section 141(a) of the DGCL, a corporation's board of directors has the legal obligation to manage the business and affairs of the corporation.
Based on these provisions of the DGCL and the nature and purpose of the Exchange, the Exchange maintains that it has the general power to assess a fee on the owners of Exchange seats and that the capital funding fee is an appropriate exercise of that power. The Phlx represents that the owners of the 505 memberships on the Exchange benefit both from the value of their seats and from doing business on the Exchange's facilities (either directly or through agents or lessees who pay fees to owners). Under these circumstances, the Exchange asserts that it believes that assessing the capital funding fee on owners is warranted.
The Commission received twenty-two comment letters from fourteen commenters regarding the proposed rule change. All of the commenters opposed the proposed rule change. Although the comments specifically expressed concern about the capital funding fee, they also expressed general disapproval of the Phlx financing plan, which consists of the capital funding fee and the monthly credit of up to $1,000 for qualified members. The monthly credit is available to members who own their memberships (“member-owners”) and other members who are so closely connected to the owners that the Phlx believes they should be treated as member-owners (collectively, “qualified members”).
One commenter raised concerns that the capital funding fee in conjunction with the credit would be an inequitable allocation of fees, dues and other charges.
Several commenters argued that the $1,500 capital funding fee is excessive and lacks justification. One commenter stated that the amount of the fee is an excessive initial sum.
Four commenters expressed concern that the management of the Exchange was not serving the best interests of members, customers, seat owners, or the public.
Several commenters stated that the Phlx is attempting to reduce the value of seats on the Exchange, thus jeopardizing the future of the Exchange.
After careful consideration, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange. In particular, the Commission believes the proposed rule change is consistent with the requirement of Section 6(b)(4)
The Commission finds that the Phlx's capital funding fee is consistent with the Act because it is an across-the-board assessment on all seat owners intended to raise revenues to provide capital improvements to the Exchange. The capital funding fee is assessed uniformly to each seat owner per seat owned. Thus, it conforms to the requirements in the Act that the rules of the exchange provide for the equitable allocation of reasonable fees, dues, and other charges among its members and issuers and other persons using its facilities; and are not designed to permit
We note the concern expressed by several commenters that the Phlx financing plan treats owner-lessors unfairly and thus contravenes Sections 6(b)(4) and 6(b)(5) of the Act. These concerns, however, are addressed to the credit and not to the fee. As discussed above, the credit is currently being implemented on a six-month pilot basis; the Commission will consider the commenters' concerns in determining whether to approve the credit on a permanent basis. The Commission does not believe that these concerns apply to the fee, which is an across-the-board assessment against all seat owners. Thus, the fee does not appear to raise concerns about unfair treatment of owner-lessors under the Act.
Other commenters contend that the proposed fee is unnecessary and excessive. The Exchange represents that to compete in the current capital market environment, the Exchange needs funding to make technological and capital improvements, and that the revenues raised from this fee will be used to fund those technological and capital improvements. The Exchange also represents that the owners of the 505 memberships on the Exchange benefit both from the value of their seats and from doing business on the Exchange's facilities (either directly or through agents or lessees who pay fees to owners). The Commission finds these representations to be persuasive. The rapid changes occurring in the options markets, including the trend towards greater automation of trading and increased competition among options markets—as evidenced by the move last fall to multiply trade options previously traded by only one exchange and the commencement of operations by the International Securities Exchange—have put pressure on all markets to evolve and compete. The Phlx believes that it needs this capital funding fee to make technological and capital improvements in this competitive environment, and the Commission sees no reason to second-guess the decision of the Phlx's properly constituted Board of Governors. Accordingly, the Commission finds that this proposed fee is reasonable and, as stated above, is equitably allocated.
The Commission is not required under Section 19(b)(2) of the Act to find that a proposed rule change by a self-regulatory organization is lawful under state corporation law; in approving this proposal, the commission is relying on the Phlx's representation that it has the general power under applicable provisions of Delaware law to assess a fee on the owners of Exchange seats, and that the capital funding fee is an appropriate exercise of that power. The Commission has not independently evaluated the accuracy of Phlx's representations about Delaware law.
In addition, the Commission funds good cause for approving Amendment No. 1 to the proposal prior to the thirtieth day after the date of publication of notice and filing thereof in the
In the Commission's view, Amendment No. 1 constitutes appropriate and necessary justification for the proposed rule change, but raises no new or novel issues under the federal securities laws. Accordingly, the Commission finds good cause, consistent with Sections 6(b)(4),
Interested persons are invited to submit written data, views and arguments concerning whether Amendment No. 1 to the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 450 Fifth Street, NW, Washington, DC 20549. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx. All submissions should refer to File No. SR-Phlx-99-51 and should be submitted by July 31, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Office of the United States Trade Representative.
Notice of open meeting.
The Industry Sector Advisory Committee on Small and Minority Business (ISAC-14) will hold an open meeting on July 17, 2000, from 9:30 a.m. to 3:20 p.m.
The meeting is scheduled for July 17, 2000, unless otherwise notified.
The meeting will be held at the Department of Commerce, Room 3884, located at 14th Street and Constitution Avenue, NW., Washington, DC, unless otherwise notified.
Millie Sjoberg or Cory Churches, Department of Commerce, 14th St. and Constitution Ave., NW., Washington, DC 20230, (202) 482-4792 or Emory Mayfield, Office of the United States Trade Representative, 1724 F St., NW., Washington, DC 20508, (202) 395-6120.
The ISAC-14 will hold an open meeting on July 17, 2000, from 9:30 a.m. to 3:20 p.m. Agenda topics to be addressed will be:
1. A Security Briefing for current and new members.
2. An Ethics Briefing for current and new members.
3. A briefing on new Carousel Legislation.
4. A briefing on implementation of infrastructure to monitor China's compliance with agreements.
5. A briefing by the Bureau of Economic Analysis regarding the survey on services export figures.
6. A briefing by the U.S. Trade Representative's WTO Services negotiator regarding developments in the WTO services agreement.
7. Committee Business.
Office of the United States Trade Representative.
Notice that the July 6, 2000, meeting of the Trade and Environment Policy Advisory Committee will be held from 8:30 a.m. to 12 noon. The meeting will be closed to the public from 8:30 a.m. to 11:30 a.m. and open to the public from 11:30 a.m. to 12 noon.
The Trade and Environment Policy Advisory Committee will hold a meeting on July 6, 2000 from 8:30 a.m. to 12 noon. The meeting will be closed to the public from 8:30 a.m. to 11:30 a.m. The meeting will include a review and discussion of current issues which influence U.S. trade policy. Pursuant to Section 2155(f)(2) of Title 19 of the United States Code, I have determined that this meeting will be concerned with matters the disclosure of which would seriously compromise the development by the United States Government of trade policy, priorities, negotiating objectives or bargaining positions with respect to the operation of any trade agreement and other matters arising in connection with the development, implementation and administration of the trade policy of the United States. The meeting will be open to the public and press from 11:30 a.m. to 12 noon, when trade policy issues will be discussed. Attendance during this part of the meeting is for observation only. Individuals who are not members of the committee will not be invited to comment.
The meeting is scheduled for July 6, 2000, unless otherwise notified.
The meeting will be held at the USTR ANNEX Building in Conference Rooms 1 and 2, located at 1724 F Street, NW., Washington, DC, unless otherwise notified.
Christina Sevilla, Office of the United States Trade Representative, (202) 395-6120.
Federal Aviation Administration (FAA), DOT.
Notice of Proposed Restriction on Stage 2 Operations.
The Federal Aviation Administration (FAA) has been notified by the Naples Municipal Airport that it proposes to prohibit operations by aircraft certificated as Stage 2 under the Federal Aviation Regulations (FAR) Part 36. The Naples Municipal Airport has provided notice of the proposed restriction and an opportunity to comment to the public pursuant to the Airport Noise and Capacity Act of 1990 and 14 CFR Part 161.
In its published notice scheduled to be printed on June 30, July 10 and August 13, 2000, in the Naples Daily News and the FT. Myers News Press, the Naples Municipal Airport proposes to prohibit all Stage 2 jet aircraft operations effective January 1, 2001.
Further information, copies of the complete text of the proposed restriction, and copies of the supporting analysis may be obtained at the offices of the City of Naples Airport Authority, 160 Aviation Drive North, Naples, Florida 34104-3568 during regular business hours.
Comments on the proposed restriction may be submitted to: City of Naples Airport Authority, ATTN: Lisa LeBlanc-Hutchings, 160 Aviation Drive North, Naples, Florida 34104-3568, Email: administration@flynaples.com, FAX (941) 643-4084.
All comments must be received by August 21, 2000, to be considered.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice
The agenda will be as follows: (1) Welcome and Introductory Remarks; (2) Review/Approval of Meeting of Previous Plenary Minutes; (3) Discuss Document Comment Form on Working Group 3 (User Recommendations on FAA Order 7400.2—Procedures for Handling Airspace Matters) Product and Reach Final Product Approval Consensus; (4) Discuss Document Comment Form on Working Group 2 (Special-Use Airspace in National Airspace Redesign) Product and Reach Final Product Approval Consensus; (5) Discuss Document Comment Form on Working Group 1 (High Altitude Procedures for Handling Airspace Matters) Product and Reach Final Product Approval Consensus; (6) Date and location of Next Meeting; and (7) Closing.
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the RTCA Secretariat, 1140 Connecticut Avenue, NW., Washington, DC, 20036; (202) 833-9339 (phone), (202) 833-9434 (fax), or http://www.rtca.org (web site). Members of the public may present a written statement to the committee at any time.
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 impose and use the revenue from a PFC at Okaloosa Regional Airport, Eglin AFB, under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before August 9, 2000.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Orlando Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, FL 32822-5024.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Jerry Sealy, Airport Director of the Okaloosa Regional Airport, Eglin AFB at the following address: Okaloosa Regional Airport, State Road 85, Eglin AFB, FL 32542-1413.
Air carriers and foreign air carriers may submit copies of written comments previously provided to Okaloosa County under section 158.23 of Part 158.
Bud Jackman, Program Manager, Orlando Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, FL 32822-5024, (407) 812-6331, x22. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Okaloosa Regional Airport, Eglin AFB, under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).]
On June 30, 2000, the FAA determined that the application to impose and use the revenue from a PFC submitted by Okaloosa County, Florida 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 October 18, 2000.
The following is a brief overview of the application.
Class or classes of air carriers which the public agency has requested not be required to collect PFCs: Charter Operators, primarily military-related charters that (1) do not enplane or deplane passengers at the airport's main passenger terminal building and (2) enplane less than 500 passengers per year at the airport. This class of carriers represents less than 1% of total passengers enplaned annually as recorded on FAA Form 1800-31.
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 Okaloosa County, Florida.
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that it is revising the original notice of intent published in the
Henry E. Compton, Division Environmental Coordinator, Federal Highway Administration, West Virginia Division, Geary Plaza, Suite 200, 700
In lieu of preparation of an environmental impact statement, the FHWA, in cooperation with the West Virginia Division of Highways (WVDOH), will prepare an environmental assessment for the proposed Moorefield Transportation Improvement Project. The project is proposed to relieve traffic congestion associated with heavily industrialized areas within and surrounding the downtown area of Moorefield. Alternatives under consideration include (1) taking no action; (2) improve the existing highway system by constructing a four lane, limited access highway on new location.
Letters describing the proposed action and soliciting comments will be sent to appropriate federal, state, and local agencies, and to private organizations and citizens who have expressed or are known to have an interest in this proposal. An additional public meeting will be held in Moorefield when appropriate. Public notice will be given of the time and place of the meeting. An environmental assessment will be available for public and agency review and comment prior to the public meeting.
To ensure the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited. Comments or questions concerning this proposed action or the modification of environmental document type should be directed to the FHWA at the address provided above.
Norfolk Southern Railway Company (NS) has filed a notice of exemption under 49 CFR 1152 Subpart F—
Through a transaction that was the subject of a notice of exemption, The City of Charlotte, North Carolina (City) proposed to acquire from the North Carolina Railroad Company a 1.1-mile line of railroad. The City simultaneously filed a motion to dismiss the notice of exemption. The City purchased the 1.1-mile line of railroad and the notice of exemption was dismissed for lack of jurisdiction.
A Board staff member consulted with NS's representative concerning the mileage stated in its verified notice. On June 23, 2000, NS informed the Board that it is its view that the line conveyed to the City is the same line for which the discontinuance authority is being requested and that, recognizing the possibility that approximations might have been used in the past, track realignments might have changed the mileage, or that an outdated reference might have been used, while it cannot account for the length of the line stated in its notice, it does not object to describing the line as 1.1 miles in length, instead of 0.91-mile in length, as stated in its verified notice.
NS has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic on the line can be rerouted over other lines; (3) no complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
A copy of any petition filed with the Board should be sent to applicant's representative: James R. Paschall, General Attorney, Norfolk Southern Corporation, Three Commercial Place, Norfolk, VA 23510-2191.
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
By the Board, David M. Konschnik, Director, Office of Proceedings.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
Under section 4(d) of the Endangered Species Act (ESA), the Secretary of Commerce (Secretary) is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. NMFS now issues a final ESA 4(d) rule adopting regulations necessary and advisable to conserve fourteen listed threatened salmonid ESUs. This final rule applies the prohibitions enumerated in section 9(a)(1) of the ESA to one coho salmon ESU, three chinook salmon ESUs, two chum salmon ESUs, one sockeye salmon ESU and seven steelhead ESUs. NMFS does not find it necessary and advisable to apply the take prohibitions described in section 9(a)(1)(B) and 9(a)(1)(C) to specified categories of activities that contribute to conserving listed salmonids or are governed by a program that adequately limits impacts on listed salmonids. This final rule includes 13 such limits on the application of the ESA section 9(a)(1) take prohibitions.
Effective September 8, 2000. Applicability dates: In § 223.203 for the Snake River Basin, Lower Columbia River, Middle Columbia River, Upper Willamette River, Central Valley, California, Central California Coast, and South-Central California Coast steelhead ESUs, this final rule is applicable September 8, 2000. In § 223.203 for the Snake River spring/summer, Snake River fall, Puget Sound, Lower Columbia River and Upper Willamette River chinook, Oregon Coast, Central California Coast, and South/Central California Coast coho, Hood Canal summer-run and Columbia River chum, and Ozette Lake sockeye ESUs, this final rule is applicable January 8, 2001.
Branch Chief, NMFS, Northwest Region, Protected Resources Division, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737; Regional Administrator, Northwest Region, 7600 Sand Point Way, NE, BIN C15700, Building 1, Seattle, WA 98115-0070; Assistant Regional Administrator, Protected Resources Division, NMFS, Southwest Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; Regional Administrator, NMFS, Southwest Region, 501 West Ocean Blvd., Long Beach, CA 90802-4213; Salmon Coordinator, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Garth Griffin at 503-231-2005 or Craig Wingert at 562-980-4021.
Reference materials regarding this rule can also be obtained from the internet at www.nwr.noaa.gov.
On August 18, 1997, NMFS published a final rule listing the Snake River Basin (SRB), Central California Coast (CCC), and South/Central California Coast (SCCC) steelhead (
Section 4(d) of the ESA provides that whenever a species is listed as threatened, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of the species. Such protective regulations may include any or all of the prohibitions that apply automatically to protect endangered species under ESA section 9(a)(1). Those section 9(a)(1) prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as endangered, without written authorization. It is also illegal under ESA section 9(a)(1) to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or of regulations issued under the ESA.
Whether section 9(a)(1) prohibitions or other protective regulations are necessary and advisable is in large part dependent upon the biological status of the species and potential impacts of various activities on the species. These threatened species are likely to become endangered species within the foreseeable future. Their current threatened status cannot be explained by natural cycles in ocean and weather conditions. NMFS has concluded that threatened chinook, coho, chum, sockeye, and steelhead are at risk of extinction primarily because their populations have been reduced by human “take”. West Coast populations of these salmonids have been depleted by take resulting from harvest, past and ongoing destruction of freshwater and estuarine habitats, hydropower development, hatchery practices, and other causes. “Factors for Decline: A Supplement to the Notice of Determination for West Coast Steelhead” (NMFS, 1996) and “Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors for Decline Report” (NMFS, 1998)
These listings have created a great deal of interest among states, counties, and others in adjusting their programs that may affect the listed species to ensure they are consistent with salmonid conservation. Although the primary purpose of state, local, and other programs is generally to further some activity other than conserving salmon, such as maintaining roads, controlling development, ensuring clean water or harvesting trees, some entities have adjusted one or more of these programs to protect and conserve listed salmonids. NMFS believes that with appropriate safeguards, many such activities can be specifically tailored to minimize impacts on listed threatened salmonids to an extent that makes additional Federal protections unnecessary for conservation of the listed ESU.
NMFS, therefore, proposes a mechanism whereby entities can be assured that an activity they are conducting or permitting is consistent with ESA requirements and avoids or minimizes the risk of take of listed threatened salmonids. When such a program provides sufficient conservation for listed salmonids, NMFS does not find it necessary and advisable to apply ESA section 9(a)(1) take prohibitions to activities governed by those programs. In those circumstances (see descriptions to follow), additional Federal ESA regulation through imposing the take prohibitions is not necessary and advisable because it would not enhance the conservation of the listed ESUs. In fact, declining to apply take prohibitions to such programs likely will result in greater conservation gains for a listed ESU than would blanket application of section 9(a)(1) prohibitions, through the program itself and by demonstrating to similarly situated entities that practical and realistic salmonid protection measures exist. NMFS will monitor the activities under a program where NMFS has granted a “limit” on the application of the ESA take prohibitions for unexpected harm, as well as for harmful activities resulting in take that do not obey the requirements of the limit and, therefore, are subject to NMFS ESA enforcement. An additional benefit of this approach is that NMFS can focus its enforcement efforts on activities and programs that have not yet adequately addressed the conservation needs of listed ESUs.
NMFS had previously proposed protective regulations for three of the salmonid ESUs subject to this final rule. When NMFS first proposed the Oregon Coast coho for listing (60 FR 38026, July 25, 1995), it proposed to apply the prohibitions of ESA section 9(a)(1) to that ESU. When NMFS first proposed the LCR and SRB steelhead ESUs for listing (61 FR 41541, August 9, 1996), it also proposed to apply the prohibitions of ESA section 9(a)(1) to those ESUs. These proposed protective regulations, however, were never finalized. NMFS has since proposed application of the section 9(a)(1) prohibitions for seven listed steelhead ESUs (64 FR 73479, December 30, 1999), and seven listed salmonid ESUs (65 FR 170, January 3, 2000). This final rule applies the prohibitions of ESA section 9(a)(1) to all 14 listed ESUs.
NMFS concludes that the prohibitions generally applicable for endangered species are necessary and advisable for conservation of these listed ESUs. Additionally, NMFS determines that section 9(a)(1) prohibitions on listed salmonids in the 14 listed ESUs need not be applied when it results from a specified subset of activities described herein. These are activities that are conducted in a way that contributes to conserving the listed ESUs and where NMFS determines that added protection through Federal regulation is not necessary and advisable for conservation of an ESU. Therefore, NMFS will now apply ESA section 9(a)(1) prohibitions to these 14 threatened salmonid ESUs, but will not apply the take prohibitions to the 13 programs described in this document as meeting that level of protection. Of course, the entity responsible for any habitat-related programs might equally choose to seek an ESA section 10(a)(1)(b) permit, or be required to satisfy ESA section 7 consultation if Federal funding, management or approval is involved. This final rule does not impose restrictions beyond those applied in other sections of the ESA, but provides another option beyond the section 7 and 10 tools to authorize incidental take.
Working with state and local jurisdictions and other resource managers, NMFS has identified 13 programs and criteria for future programs for which it is not necessary and advisable to impose ESA section 9(a)(1) prohibitions because they contribute to conserving the ESU. Under specified conditions and in appropriate geographic areas, these programs and criteria include: (1) activities conducted in accord with ESA incidental take authorization; (2) ongoing scientific research activities, for a period of 6 months from the publication of this final rule; (3) emergency actions related to injured, stranded, or dead salmonids; (4) fishery management activities; (5) hatchery and genetic management programs; (6) activities in compliance with joint tribal/state plans developed within
NMFS emphasizes that these limits are not prescriptive regulations. The fact of not being within a limit does not mean that a particular action necessarily violates the ESA or this regulation. Many activities do not affect these species, and thus, need not be included in the 13 limits listed earlier. The limits describe circumstances in which an entity or actor can be certain it is not at risk of violating the take prohibitions or of consequent enforcement actions, because the take prohibitions would not apply to programs or activities within those limits. Jurisdictions, entities, and individuals are encouraged to evaluate their practices and activities to determine the likelihood of take occurring. NMFS can provide ESA coverage through section 4(d) rules, section 10 research and enhancement permits, or incidental take permits; or through section 7 consultations with Federal agencies. If take is likely to occur, then the jurisdiction, entity or individual should modify its practices to avoid take of a threatened species or seek protection from potential ESA
Jurisdictions, entities, and individuals are not required to seek inclusion in a section 4(d) limit from NMFS. In order to reduce its liability, a jurisdiction, entity, or individual may also informally comply with a limit by choosing to modify its programs to be consistent with the evaluation considerations described in an individual limit. Finally, a jurisdiction, entity, or individual may seek to qualify its plans or ordinances for inclusion in a limit by obtaining the 4(d) limit authorization from the appropriate NMFS Regional Administrator (see
NMFS wishes to continue to work collaboratively with all affected jurisdictions, entities, and individuals to recognize management programs that conserve and meet the biological requirements of salmonids, and to strengthen other programs toward conservation of listed salmonids. This final rule may be amended to add new limits on the take prohibitions, or to amend or delete limits as circumstances warrant.
State, county and local efforts such as Clark, Cowlitz, Kitsap, the Puget Sound Tri-County Initiative in Washington state; and the City of Portland and Clackamas County in Oregon are working with NMFS to make their ordinances and practices fish friendly and to be adopted in future 4(d) rulemaking. NMFS also acknowledges the important progress being made by Metro, the directly-elected regional government in Portland, Oregon. NMFS is enthusiastic about Metro's current planning efforts and encourages its progress in regional planning to address salmonid conservation.
NMFS acknowledges, and is participating in, the State of Washington's Agricultural, Fish, and Water negotiation process currently underway in Washington State. The process currently underway is intended to address the requirements of the ESA and the Clean Water Act (CWA). The negotiations are designed to address agricultural practices and processes including but not limited to: Field Office Technical Guides (FOTGs), Comprehensive Irrigation District Management Plans (CIDMP), Ditch Maintenance Plans (DMPs) and Pesticide Management as needed to comply with ESA and CWA. It is anticipated that completed FOTGs, CIDMPs, DMPs, and Pesticide Management, if acceptable to NMFS, will be included in future ESA 4(d) rulemaking.
NMFS strongly encourages comprehensive conservation planning for programs at the state level. State level conservation programs can be one of the most efficient methods to implement effective conservation practices across the board and achieve comprehensive benefits for listed fish and their habitats. Other examples of these state-based conservation programs include the completed forestry agreement in Washington state; ongoing reviews of Oregon and California forestry practices; and development of coastal states' shoreline management programs. NMFS is working with Washington State Department of Ecology on development of a model shoreline program. Alternatively, a local jurisdiction seeks inclusion in a limitation of the take prohibition by adopting this model program, NMFS expects to address the potential “take” issues associated with the shorelines program through an ESA section 7 consultation with the National Ocean Service in the coming months. This may obviate the need for a 4(d) limit for shoreline-related activities under the authority of the Department of Ecology.
Concurrent with this final rule, NMFS is publishing a final rule describing a limit on the section 9(a)(1) prohibitions for actions in accord with any tribal resource management plan that the Secretary has determined will not appreciably reduce the likelihood of survival and recovery of a threatened ESU (published elsewhere in this
Following is a section entitled “Notice of Availability” which lists seven documents referred to in the regulation. The purpose of making these documents available to the public is to inform governmental entities and other interested parties of the technical components NMFS expects to be addressed in programs submitted for its review. These technical documents provide guidance to entities as they consider whether to submit a program for a 4(d) limit. The documents represent several kinds of guidance, and are not binding regulations requiring particular actions by any entity or interested party.
For example, NMFS' Viable Salmonid Policy (VSP) paper referenced in the fishery and harvest management limits provides a framework for identifying populations and their status as a component of developing adequate harvest or hatchery management plans. This rule asks that FMEPs and HGMPs “utilize the concepts of ‘viable’ and ‘critical’ salmonid population thresholds, consistent with the concepts contained in the [VSP paper].” Thus, state fishery agencies preparing such programs are put on notice of the technical analysis needed to support decisions within a program. Similarly, NMFS' Fish Screening Criteria explicitly recognize that they are general in nature and that site constraints or particular circumstances may require adjustments in design, which must be developed with the NMFS staff member, or authorized officer, to address site specific considerations and conditions. Finally, research involving electrofishing comes within the scientific research limit only if conducted in accordance with NMFS' Guidelines for Electrofishing. The guidelines recognize that other techniques may be appropriate in particular circumstances, and NMFS can recognize those as appropriate during the approval process.
Of the state or local documents referenced in the rules, two (Oregon Department of Transportation's (ODOT) road maintenance program to govern routine maintenance activities and Portland Parks' integrated pest management program) are existing programs already being implemented that NMFS has found adequate and made effective as limits. Those entities, thus, need no further approval for the programs. Other jurisdictions may come within the road maintenance limit if they use the ODOT program or provide other practices found by NMFS to be equivalent or more protective of salmonids. The State of Washington's Forests and Fish Report will not trigger a limit until the Washington Board of Forestry adopts regulations that NMFS finds are at least as protective as the report. Thus, the report indicates a set of conditions that will allow NMFS to approve the limit, but recognizes that the Board may design regulations that are not identical to, but are at least as protective as, the report language.
In sum, where the rule cites a document, a program's consistency with the guidance is “sufficient” to demonstrate that the program meets the particular purpose for which the guidance is cited. However, the entity or individual wishing a program to be accepted as within a particular limit has the latitude to show that its variant or approach is, in the circumstances where it will apply and affect listed fish, equivalent or better.
NMFS will continue to review the applicability and technical content of its own documents as they are used in the future and make revisions, corrections or additions as needed. NMFS will use the mechanisms of the rule to take comment on revisions of any of the referenced state programs. If any of
The following is a list of documents cited in the regulatory text of this final rule. Copies of these documents may be obtained upon request (see
1. Oregon Department of Transportation (ODOT) Maintenance
Management System Water Quality and Habitat Guide (June, 1999).
2. City of Portland, Oregon Parks and Recreation Department Pest Management Program (March 1997) with Waterways Pest Management Policy updated December 1, 1999.
3. State of Washington, Forests and Fish Report (April 29, 1999).
4. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act (NMFS, 2000a).
5. Juvenile Fish Screen Criteria, National Marine Fisheries Service, Northwest Region, Revised February 16, 1995, with Addendum of May 9, 1996.
6. Fish Screening Criteria for Anadromous Salmonids (January 1997).
7. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (NMFS, 2000b).
Copies of all references, reports, related documents and “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000) are also available upon request (see
The limits on the take prohibitions do not relieve Federal agencies of their duty under section 7 of the ESA to consult with NMFS if actions they fund, authorize, or carry out may affect listed species. To the extent that actions subject to section 7 consultation are consistent with a circumstance for which NMFS has limited the take prohibitions, a letter of concurrence from NMFS will greatly simplify the consultation process, provided the program is still consistent with the terms of the limit.
In the regulatory language in this final rule, the limits on applicability of the take prohibitions to a given ESU are accomplished through citation to the Code of Federal Regulations' (CFRs') enumeration of threatened marine and anadromous species, 50 CFR 223.102. For the convenience of readers of this notice, 50 CFR 223.102 refers to threatened salmonid ESUs through the following designations:
(a) (1) Snake River spring/summer chinook
(a) (2) Snake River fall chinook
(a) (3) Central California Coast coho
(a) (4) Southern Oregon/Northern California Coast coho
(a) (5) Central California Coast steelhead
(a) (6) South-Central California Coast steelhead
(a) (7) Snake River Basin steelhead
(a) (8) Lower Columbia River steelhead
(a) (9) Central Valley, California steelhead
(a) (10) Oregon Coast coho
(a) (12) Hood Canal summer-run chum
(a) (13) Columbia River chum
(a) (14) Upper Willamette River steelhead
(a) (15) Middle Columbia River steelhead
(a) (16) Puget Sound chinook
(a) (17) Lower Columbia River chinook
(a) (18) Upper Willamette River chinook
(a) (19) Ozette Lake sockeye
Between January 10, 2000, and February 22, 2000, NMFS held 25 public hearings to solicit comments on the proposed ESA 4(d) rules: 7 in Washington, 8 in Oregon, 3 in Idaho, and 7 in California (64 FR 73479, December 30, 1999; 65 FR 170, January 3, 2000; 65 FR 7346, February 14, 2000; 65 FR 7819, February 16, 2000). During the 65-day public comment period, NMFS received 1,146 written comments on the proposed rules from Federal, state, and local government agencies; Indian tribes; non-governmental organizations; the scientific community; and individuals. In addition, numerous individuals provided oral testimony at the public hearings.
Based on these public hearings and comments, NMFS now issues its final protective regulations for these 14 salmon and steelhead ESUs. The preamble section of this rule refers to the prohibitions of ESA section 9(a)(1). In addition to the commonly referred to take prohibitions of section 9(a)(1)(B) and 9(a)(1)(C), section 9(a)(1), also includes prohibitions on the import, export, sale, delivery, or transport in interstate commerce of endangered species. The public comments NMFS received almost exclusively focused on the section 9 take prohibitions. The following comments and responses, therefore, refer to the “take” prohibitions of section 9(a)(1)(B) and 9(a)(1)(C), not to the other prohibitions described in section 9(a)(1). Accordingly, for the rest of this preamble and in the regulation, the term “prohibition” refers to the prohibition of take within the 13 specified limits.
New information and a summary of comments received in response to the proposed rules are summarized as follows.
For the same reason, NMFS is also unable to make an affirmative finding that the otherwise-lawful use of these products may cause harm to listed salmonids in potential violation of this final rule.
NMFS will continue to conduct scientific research into the potential for adverse effects upon salmonids of a variety of pesticides. NMFS intends to work closely with EPA and state authorities which have primary responsibility for ensuring the proper use of these products under relevant Federal and state regulatory regimes. Should information come forward to suggest that the otherwise lawful use of a pesticide harms or injures listed salmonids and might be in violation of this rule, NMFS anticipates addressing the concern through a section 7 consultation with EPA, NRCS, or United States Fish and Wildlife Service (FWS) as appropriate, or corresponding discussions with responsible state authorities. NMFS prefers this approach rather than use its enforcement authorities against an individual applicator for the otherwise-lawful use of the pesticide. Similarly, if NMFS, with due consideration of any more restrictive state requirements for a pesticide's use, finds that a limitation on the prohibition against take for the use of selected pesticides is necessary and advisable for the conservation of listed salmonids, it may amend this rule accordingly. Through such a programmatic approach, NMFS believes that it will be able to achieve an orderly and comprehensive analysis of the use of pesticides and their effects on listed salmonids.
NMFS measures conditions on the landscape to evaluate whether and how PFC is likely to be affected, attained or maintained by an activity. The indicators vary between different landscapes based on unique physiographic, geologic or other features. Although the indicators used to assess functioning condition may entail instantaneous measurements, they are chosen, using the best available science, to detect the health of underlying processes, not static characteristics.
The scope of any given activity is important to NMFS' analysis. The scope of the activity may be such that only a portion of the habitat forming processes in a watershed are affected by it. For NMFS to find that an activity is consistent with the conservation of the listed salmonids, only the effects on habitat functions that are within the scope of that activity will be evaluated. For example, an integrated pest management program may affect habitat forming processes related to clean water, but have no effect on physical barriers preventing access by fish to a stream.
NMFS' evaluation of an activity includes an analysis of both direct and indirect effects of the action. “Indirect effects” are those that are caused by the action and are later in time but are still reasonably certain to occur. They include the effects on species or critical habitat of future activities that are induced by the original action and that occur after the action is completed. The analysis also takes into account direct and indirect effects of activities that are interrelated or interdependent with the proposed action. “Interrelated actions” are those that are part of a larger action and depend on the larger action for their justification. “Interdependent actions” are those that have no independent utility apart from the action under consideration. NMFS has published an extensive discussion of the effects of activities in its Consultation Handbook—Procedures for Conducting Consultation and Conference Activities Under section 7 of the Endangered Species Act (March, 1998).
Though there is more than one valid analytical framework for determining effects of an activity, NMFS has developed an analytic methodology it has documented in a Matrix of Pathways and Indicators (MPI; often called “The Matrix”). The MPI can help NMFS and others identify any risks to PFC. The pathways for determining the effects of an action are represented as six conceptual groupings (e.g., water quality, channel condition, and dynamics) of 18 habitat condition indicators (e.g., temperature, width/depth ratio). Default indicator criteria (mostly numeric, though some are narrative) are laid out for three levels of environmental baseline condition: properly functioning, at risk, and not properly functioning. The effect of the action upon each indicator is classified by whether it will restore, maintain, or degrade the indicator.
The MPI provides a consistent, but geographically adaptable, framework for effects determinations. The pathways and indicators, as well as the ranges of their associated criteria, are amenable to alteration through the process of watershed analysis. The MPI, and variations on it, are widely used in consultations under Section 7 of the ESA on the effects of federal actions and will be similarly used to evaluate activities pursuant to this rule. The MPI is also used in other venues to determine baseline conditions, identify properly functioning condition, and estimate the effects of individual management prescriptions. While this assessment tool originally was developed to address forestry activities, NMFS intends to work with state, tribal, and other experts to facilitate its use in other ecological settings such as lakes, estuaries and urban settings.
First, section 4(d) regulations are those “necessary and advisable to provide for conservation” of the threatened salmonids. This final rule imposes one major regulatory prohibition (in addition to the less significant prohibitions of section 9(a)(1) or interstate commerce and import/export): that is, that actors are to avoid taking threatened salmonids of the 14 listed ESUs. The take prohibitions are what the ESA imposes by statute to protect endangered species and, if perfectly implemented, would provide the most protection possible. There is no question but that take prohibitions “provide for the conservation” of the species.
Nor can there be any real question about the advisability of imposing take prohibitions at all. NMFS' listings were based on findings that the ESUs are at risk and specifically that there are factors (set forth in ESA section (4(a)(1)) that have caused and are continuing to cause the listed ESUs' populations to decline. See “Factors for Decline: A Supplement to the Notice of Determination for West Coast Steelhead” (NMFS, 1996); Coastal Coho Habitat Factors for Decline and Protective Efforts in Oregon” (NMFS, 1997), and “Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors for Decline Report” (NMFS, 1998). Many of these factors (habitat destruction, overutilization, inadequate regulatory systems) are state, local, or private, and have no link to Federal actions. Prohibiting take for these ESUs is, therefore, the most direct way of protecting the listed species. NMFS listed two additional chinook ESUs as threatened in September of 1999 and will be proposing ESA 4(d) protections for them in the near future.
This final rule also establishes 13 circumstances in which NMFS does not find it necessary and advisable to apply the take prohibitions. NMFS believes that by describing (wherever possible) a program or the components of a program that will adequately protect the species, it provides valuable guidance to agencies or individuals wishing to play a part in salmonid protection and will minimize their legal risks under the ESA as well. NMFS further believes that it is appropriate to limit the take prohibitions for such programs provided that NMFS' salmonid conservation goal (and legal responsibility) is not compromised—that is, so long as the rule provides for conservation of the listed ESUs. Thus, this final rule limits the application of the take prohibitions selectively. NMFS is confident that given the stringency of the fish protections in the programs receiving limits on the take prohibitions, this final rule meets the section 4(d) conservation standard.
In determining that take prohibitions are not necessary and advisable for a particular program, NMFS has ensured that each program—including programs that NMFS will evaluate in the future to determine whether they fit within one of the 13 limits—will not jeopardize the species. That is, none will appreciably reduce the likelihood of survival and recovery of any of the ESUs in the wild.
Further, for some programs involving sectors which have had particularly destructive impacts on habitat or bear other significant responsibility for decline of the species, there must be a demonstration above and beyond “not jeopardizing.” Just as a Federal agency has a responsibility not only to conduct its affairs in a way that does not jeopardize but also to use its authorities in furtherance of the conservation of the species, ESA 4(d) regulations as a whole must provide measures necessary and appropriate to conserve the species. Hence, while for many actions or programs “not jeopardizing” may be equivalent to not precluding or impairing recovery, for others it may be necessary to include commitments for specific positive contributions that are vital to recovery because of past impacts from those sectors. NMFS has taken those considerations into account when evaluating potential programs (or establishing approval criteria) to determine if they qualify for inclusion in one of the limits.
By statutory definition, species conservation equates to those methods and procedures that will bring a species to the point at which it no longer needs the protections of the ESA and may be delisted. Those methods and procedures encompass the full array of actions that will contribute to recovery: Federal efforts to avoid jeopardy and conserve the species under section 7; efforts taken in accord with section 10 conservation plans; state, tribal, local, or private initiatives undertaken to improve the prospects of listed fish quite independent of any ESA requirement; efforts to avoid taking listed species; and habitat improvements accomplished under numerous regulatory programs for protecting other resources, such as the CWA, state and Federal regulations governing fill and removal in waterways, and the like.
NMFS believes this final rule reflects the necessary and appropriate level of protections for conserving these threatened ESUs given our current
Where take prohibitions are imposed, those pursuing actions that may take listed salmonids may choose to apply for a section 10 permit at any time. Section 10 permits are issued on a case-by-case basis supported by individual analysis and section 7 consultation. Where NMFS has found it not necessary to impose take prohibitions, there would be no basis for issuing research or enhancement or incidental take permits through section 10, provided the action is carried out in accordance with the requirements of the applicable limit.
As to the third comment, once a state or local government program comes within a limit (for instance, local development ordinances found by NMFS to meet the standards of the rule), it will be up to the local government to implement that ordinance, including any necessary exercise of reasonable judgement. If monitoring or other information indicates that the ordinance, as implemented, is not providing adequate protections, then the adaptive mechanisms in the 4(d) rule will trigger changes in the ordinance, imposition of the take prohibitions, or imposition under the ESA of affirmative requirements.
In evaluating fishery management programs to determine if they qualify for a limit, NMFS relies on the concept of viable salmonid populations and its associated use of viable and critical thresholds for management decisions. The limits require that relevant biological parameters be identified so individual population status can be evaluated and the program may be placed in an appropriate context for determining whether it will support population viability. Land management related programs being considered for limits are assessed according to their ability to help attain or maintain properly functioning conditions (i.e., those conditions NMFS considers necessary for supporting viable salmonid populations).
Although NMFS does not agree that this final rule would likely cause a constitutional taking of property, NMFS did intend that the development limit should be broadly available and has amended and clarified the regulation to accomplish that purpose, including specifically naming redevelopment as one of the activities that individual ordinances could cover within the limit.
NMFS understands that some commenters would prefer the agency to promulgate specific, detailed regulations to govern particular sectors of activity. For a variety of reasons, NMFS has not chosen that course at this time. Specific proscriptions are an effective protective mechanism where, as with threatened sea turtles, a very specific cause of mortality can be addressed with precision. In the case of Pacific salmonids, where impacts are caused by a large array of activities and where the circumstances leading those impacts to constitute a take are extremely site- or circumstance-specific, NMFS believes it extremely difficult to design a single set of prescriptive rules to cover all of those situations. In addition, prescriptive regulations would likely impose unnecessary costs on some individuals. This is because state, local and individual strategies for avoiding take can be more closely adapted to the local geography or fishery opportunities than can rules that cover an entire landscape. Thus they are equally as effective (or more so) at avoiding take of listed species and less costly than regionwide, blanket prescriptions. The approach taken in this final rule, recognizing limits but not requiring all entities or actors to be within a limit, offers an opportunity to test particular combinations of approaches without requiring everyone to invest in them immediately. Finally, as noted elsewhere in these responses, once recovery planning is complete it may identify specific areas needing more prescriptive attention.
In a variety of circumstances, take prohibitions might not be found necessary and advisable to provide for the conservation of a threatened species. For instance, if a threatened species is located almost exclusively on Federal lands and impacted largely by a Federal activity on those lands, the Secretary might determine that section 7 consultations will provide all the protections necessary to allow the species to recover. Or, a threatened species might be threatened because of negative impacts from a narrow class of human activity. In that circumstance, the Secretary might choose to impose prescriptive regulations tailored specifically to alter those activities in a manner that would allow the species to recover.
More importantly, the biological impact of take on the ESU is the same, whether a particular number of listed fish are lost as a result of incidental impacts or intentional (directed) impacts. Situations in which this final rule would limit the application of take prohibitions for intentional taking of threatened salmonids are extremely limited and consistent with the conservation and recovery goals of the ESA. Scientific research activities conducted by fisheries experts, in accord with specific guidance, and permitted by a state, can be within the limit. Harvest activity will have direct impacts in very few situations—generally where the status of the affected population is already considered viable, even though the status of the larger ESU is not. Taking listed broodstock for artificial propagation might occur for conservation purposes (or, only after the species' conservation needs are met, for secondary purposes such as fisheries).
The standards by which NMFS will judge the suitability of any program for a limit are the same, whether the program manages fishery harvest or some type of land management activity. In both instances, such a program may have some impact on the listed ESU, but at a level that will not appreciably reduce the likelihood of its survival and recovery in the wild. Because current habitat conditions are in most cases far below those needed to support viable populations in the wild, additional impacts on habitat must be carefully constrained and in many cases, accompanied by mitigative measures.
Take prohibitions are the sole legally enforceable component of these 4(d) rules, and will impact the environment in a positive manner, phasing in over a long period of time (especially with regard to habitat impacts). The Council of Environmental Quality regulations make clear that the fact that an action will have net beneficial environmental impacts does not excuse preparation of an EIS where there are also significant negative impacts (40 CFR 1508.27—definition of “significantly”). In this case the EAs reveal no significant negative environmental impacts, and NMFS believes the EAs satisfactorily address NEPA. Economic impacts need be evaluated only when required as part of the process of preparing an EIS, not as a reason for doing one. (See 40 CFR 1508.14, “This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.”) Finally, a belief that the take prohibitions do not go far enough to stop activities that harm the environment is not an argument for an EIS.
There are no statutory or regulatory requirements regarding the timing or relationships between 4(d) rules and section 4(f) recovery plans. In fact, the basic structure of the ESA itself provides that the protective mechanisms of sections 7 and 10 take effect upon the listing of a species as threatened or endangered while recovery planning follows its course through subsequent activities. Recovery plans will provide biological goals for recovery and identify an entire suite of actions needed for recovery. Thus, they may provide a more specific framework for future 4(d) rules or amendments, but the essential protective function of 4(d) rules is independent of recovery plans; that function is to prohibit take of listed species where needed. If the 4(d) rules were not promulgated until de-listing goals were developed or recovery plans completed, the species would be placed at unacceptable risk, and more stringent and costly measures would be necessary to save them.
Moreover, by applying the VSP and PFC concepts it is possible to make judgments about the contributions certain programs make to recovery. These judgments will not prejudice the comprehensive recovery planning process.
For habitat actions, NMFS may find that it is not necessary or advisable to apply the take prohibition to programs that will help attain or protect properly functioning habitat. For FMEPs, NMFS may find it is not necessary or advisable to apply the take prohibition when the program contains specific management measures that adequately limit take and otherwise protect the ESU. For Hatchery and Genetic Management Plans (HGMPs), NMFS may find that it is not necessary or advisable to apply the take prohibition when a plan is designed to minimize and adequately limit take and promote species conservation. NMFS believes that these standards are all consistent with recovery, and expects that most programs approved as limits will provide a foundation for later recovery planning measures. NMFS also anticipates that the VSP and PFC concepts will continue to evolve and provide the analytical framework for evaluating potential limits and recovery measures.
Through the process of recovery planning, NMFS may develop more specific information about measures needed for recovery or about specific areas needing more prescriptive attention. In addition, each take limit incorporated into the 4(d) rules includes provisions for continued review of its implementation and effectiveness. Thus, NMFS intends to continually reevaluate the limits. If these evaluations, or information developed through recovery planning, or any other information, indicates that a limit is inadequate for recovery, NMFS will revisit the limit.
Finally, NMFS is moving forward as quickly as resources allow to develop recovery plans. NMFS has appointed Technical Recovery Teams (TRTs) for Puget Sound and for the Willamette/Lower Columbia River Basins and Southwest Washington. These teams have begun to identify delisting goals. To conduct the more policy-oriented aspects of recovery planning, NMFS will work with state, local, tribal, and private entities to craft a recovery planning process suited to specific areas and situations. Formal recovery planning efforts will be expanded to additional geographic domains as resources permit.
Moreover, a major impetus for providing the research limit is to allow the state fisheries agencies to continue to oversee and coordinate research efforts for listed salmonids. The ESA's section 10 permitting process does not always facilitate state oversight/coordination and NMFS believes that it is advisable to minimize research impacts by streamlining the research review process in a manner that fosters active participation by state fisheries agencies. It is worth noting that as a result of previous 4(d) rulemaking (50 CFR 223.204(a)(4)), ODFW has successfully coordinated and reported scientific takings per a 1997 research limit involving listed coho salmon in southern Oregon. NMFS will work closely with all of the affected states and research entities to expand on this success while minimizing the reporting workload by incorporating existing state processes into those supporting the 4(d) limit for scientific research.
Parties requesting coverage under the ESA 4(d) limit on scientific research activities should consult with the ODFW, the California Department of Fish and Game (CDFG), the Idaho Department of Fish and Game (IDFG), or the Washington Department of Fish and Wildlife (WDFW) to determine when related applications are due to these oversight/coordination agencies. By October 10, 2000, NMFS will expect these agencies to submit a letter of intent to the AA, NOAA, summarizing the types of research to be covered under the 4(d) limit for any of the 14 salmon or steelhead ESUs identified in this rule. This letter will serve as a placeholder for these agencies (and the entities identified in their letter) until they can submit to NMFS a more comprehensive assessment of scientific research activities planned for the 2001 research season. Take prohibitions for these applicants would become effective after their application for the 4(d) limit is either rejected by NMFS or the “temporary” limit period expires, whichever occurs earliest. Applicants failing to submit a letter of intent by October 10, 2000 would be subject to take prohibitions beginning on
NMFS does not believe it is necessary to include a regulatory obligation under 4(d) that requires states to include a tribal co-manager review and concurrence process for research/monitoring activities. There are ample opportunities—both formal and informal—for Federal, state, and tribal co-managers to coordinate salmonid research and monitoring efforts and NMFS will continue to encourage such collaborative efforts. In addition, NMFS recognizes its responsibilities to confer with the tribes on ESA issues and will use this dialogue to ensure that tribal concerns are addressed. NMFS will make available to interested parties the documents describing the research and monitoring conducted under either the tribal 4(d) limit or the salmon/steelhead research limit.
NMFS agrees that minor modifications to this limit's description will help clarify the agency's intent for “oversight” and “coordination.” For example, with respect to “oversight,” NMFS does not believe that a state fishery agency must directly supervise or inspect every research project. Instead, NMFS intended that research efforts covered by the ESA 4(d) limit should merely be identified and approved by the appropriate state fishery agency. The identification and approval processes should constitute nominal extensions of the pre-existing system for obtaining a state research/collection permit. In addition, NMFS' emphasis on “coordination” was to encourage the state fisheries agencies to establish and improve upon mechanisms for organizing research and monitoring of listed salmonids. Such coordination could occur at a state-wide level (e.g., the Oregon Plan for Salmon and Watersheds), at a level addressing a particular ESU (e.g., Washington's Hood Canal and Eastern Strait of Juan de Fuca Summer Chum Recovery Plan), or watershed. No matter what the level, however, the state fisheries agencies will still need to provide NMFS with the requisite annual reports. NMFS will continue to work with the affected states to better define the reporting requirements supporting this limit, maximize the information being gathered on fish and wildlife species (while minimizing impacts on threatened and endangered species), and ensure that sound research proceeds unencumbered by regulatory/permitting requirements.
With respect to specific concerns about the electrofishing guidelines, NMFS disagrees with most of the issues raised and believes that only minor modifications are warranted in these protocols. For example, the agency disagrees with several commenters that requiring conductivity measurements would impose an onerous and costly burden on researchers. It is well known that water conductivity is one of the most critical parameters determining electrofishing impacts and conductivity meters are both inexpensive and readily available. The concerns that NMFS is requiring too much documentation (e.g., logging crew experience and data on sampling results) are also unsound. Most, if not all, researchers record the time spent (e.g., time counters are an integral part of most backpack units) and results of electrofishing surveys (e.g., numbers of fish encountered, injuries observed, site conditions, etc.). These logs aid fish by helping to improve the researcher's technique and can form the basis for training new operators.
With respect to boat electrofishing, NMFS has serious concerns with this technique because it has even greater potential for seriously injuring listed salmonids. For example, the technique can employ electrical output that is an order of magnitude greater than backpack electrofishing units, and environmental conditions can seriously limit a researcher's ability to minimize impacts on listed fish (e.g., adult salmonids in large and turbid stream reaches). NMFS has not developed suitable guidelines for this sampling technique and will continue to request that researchers desiring to employ electrofisher boats apply to NMFS via the ESA section 10 permit process.
While it is not possible to characterize all scenarios constituting an “emergency” for listed salmonids, fish strandings resulting from natural or human-induced events are probably the most common type encountered. For example, an emergency condition may exist as a result of dewatering (e.g., for irrigation), damming, drought conditions, or when listed fish become stranded in channels or ponds following a flood event, landslide, or debris torrent. Chemical spills associated with industrial effluents or vehicular accidents (e.g., train or automobile accidents) have also been known to create an emergency for salmon and steelhead. These are just a few examples of scenarios that the employees or designees might face. Obviously professional judgement will need to be applied at the scene of an emergency to determine if and how listed fish should be rescued.
NMFS concurs that electrofishing is permissible when there is no better technique for safely removing stranded fish under the rescue/salvage limit. However, the electrofishing should be conducted in accordance with NMFS' backpack electrofishing guidelines.
Establishing sanctuary areas is especially important for species (like steelhead) that can spend several years rearing in fresh water and may be exposed to multiple fishing seasons. Juvenile salmon are generally less vulnerable to fishing because they typically emigrate to the ocean by the time they are one year old. However, some juvenile salmon (e.g., sockeye) can also exhibit extended freshwater residence. NMFS agrees that sanctuaries should also be included in the FMEPs developed for the listed salmon ESUs. The extent of the existing (and future) sanctuary areas for juvenile and adult fish will be evaluated on an ESU-by-ESU basis when the FMEPs are reviewed.
Comments related to the criteria established for FMEPs and HGMPs
Population-level assessments under the ESA are meant to provide information on abundance, productivity, structure and diversity specific to each population, and are essential to determining an ESU's overall health. However, under some circumstances the ESU as a whole may be viable even though some individual populations have not fully recovered. NMFS and the TRTs appointed to help develop de-listing criteria will determine which, where, and to what degree populations within an ESU must have “viable salmonid population” status to render adequate ESA protection at the ESU level.
The FMEPs will specify adult escapement targets and harvest rates for each ESU. The purpose of the ESA 4(d) rules is to accommodate the listed species' biological needs, not to allocate harvestable surplus. That is a co-manager responsibility and is undertaken in a number of different venues.
By enabling selectivity, mass marking may also provide the means for sustainable fisheries—clearly a very important objective. However, because a number of critical issues related to ongoing coded wire tag (CWT) programs remain unresolved, NMFS shares the view of its co-managers that decisions made now to mass mark hatchery chinook are separate from decisions to be made later regarding selective fisheries. Even in cases where NMFS has required that a hatchery production run be mass-marked because of ESA concerns, this does not imply that a selective fishery will subsequently be endorsed. It is not NMFS' policy to require that all hatchery production be mass marked. Rather, our policy is that mass marking must be decided on a case-by-case basis after taking into account, among other things, the specific objectives of the hatchery production, the intended purposes of the mark, and the effect the hatchery production would have on fish listed under the ESA.
In addition, NMFS has also provided a transition period of 6 months for recreational fisheries that affect listed steelhead. NMFS has assessed the angling regulations currently in effect for juvenile and adult steelhead in California, Oregon, Washington, and Idaho and has concluded that listed steelhead will be sufficiently protected during this 6-month period. This will allow additional time to develop and approve FMEPs for the steelhead ESUs. Some fisheries and hatchery programs will not need ESA coverage immediately after take prohibitions go into effect because the actions do not affect listed species. NMFS will work with the co-managers to prioritize fisheries and hatchery programs on the basis of how urgently each needs ESA coverage.
However, the interim provisions had been widely misperceived as detailed regulation of habitat restoration activities. NMFS did not intend to provide for the direct regulation of habitat restoration activities under the terms of this rule and regrets that the earlier proposal created this false impression. Accordingly, NMFS now deems it advisable to simply drop the interim provisions from this final rule. Many low risk activities (e.g., riparian exclosure fencing or native vegetation planting), simply do not carry an appreciable risk of taking. Activities involving instream construction or modification of the streambed or banks require CWA section 404 permits which carry ESA section 7 coverage. All habitat restoration activities will entail less risk and more benefit if they are part of an approved WCP, and NMFS encourages the timely development of WCP guidelines and plans. Habitat restoration projects are less likely to be successful if undertaken without supporting analyses that disclose habitat impairments and absent resource management adjustments within the watershed to redress the underlying causes of those impairments.
NMFS strongly encourages jurisdictions, entities, and citizens to use the habitat restoration guidelines and technical manuals referenced in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000) as readily available techniques to reduce the risks of harm or injury to the listed stocks. In the event that an allegation arose about a potential ESA section 9 violation, NMFS would furthermore take into account the efforts of the watershed group or entity to adhere to the relevant guidelines. Where injury or harm was resulting in such a circumstance, NMFS believes that the proper and most effective remedy would be an orderly adjustment in the relevant guidelines and not the prosecution of a section 9 violation against an individual project.
The second issue pertains to the potential application of the limit to similar activities of other jurisdictions besides ODOT and Oregon cities and counties. NMFS agrees that under the conditions that meet or exceed those described above, the limit for routine road maintenance could be applied to other jurisdictions such as ports, other state transportation agencies, and cities and counties in other states which also, like ODOT, have programs that are determined to meet PFC. This final rule describes the procedure for public comment and determination of inclusion within the limitation on the take prohibition.
(1) “To the maximum extent possible, the manual should contain enforceable standards.”
(2) “Protective and mitigation measures for work conducted outside of the BMPs should be required, and they should be described.”
(3) “The manual should describe an effective, proactive, monitoring program for maintenance projects.”
(4) “The manual should contain specific timetables for project reviews and manual updates.”
(5) “Terms not in common usage should be clearly defined.”
(6) “Effective erosion controls and a list of specific techniques should be defined, including a description of methods to be used during emergencies.”
(7) “Mandatory work windows should be defined to protect vulnerable life stages of salmonids.”
(8) “Criteria for the use of bioengineering methods should be described.”
(9) “Riparian management zones should be defined by water type or the criteria used to determine riparian buffer widths [should be] identified.”
NMFS believes that with restrictions such as the ones cited here, and looking at the program as a whole, it sufficiently protects the listed salmonids.
The 12 considerations described in the MRCI development limit describe specific considerations that NMFS will evaluate when looking at MRCI development ordinances and plans. They are based on current scientific understanding of salmonid biological requirements (e.g., Spence
Because NMFS has a relatively limited number of staff members to review a potentially significant number of individual MRCI planning ordinances, plans, and regulations, NMFS strongly encourages local and regional governments to assemble comprehensive planning packages such as Metro's Functional Plan. Not only is this a more expeditious and efficient approach, it results in a greater likelihood that the MRCI growth management program will protect the full suite of essential habitat functions. In any case, because staff resources are limited NMFS will generally give comprehensive plans rather than individual ordinances priority in the review process.
Vegetative cover is good for a number of essential habitat features such as water quality, water temperature, bank stability, stream complexity, cover/shelter, and food. In MRCI environments, the loss of riparian vegetation, coupled with reduced base flows, causes streams to heat up more during summer. In addition, the lack of large wood recruitment combined with increased peak flows heightens the severity of streambed scouring and downstream wood transport. This causes stream channel simplification and greater instability. In order to reverse the downward population trend for listed salmonids and steelhead, the structure and function of their aquatic habitats must be restored to whatever degree possible.
Development activities should be sited in appropriate areas. They should avoid unstable slopes, wetlands, areas already in a PFC, areas that are more functional than neighboring sites, and areas with the potential to be fully restored. A description of particularly sensitive areas is included in the Fish and Forest Report cited elsewhere in this final rule. Such sites include, but are not limited to, soils perennially saturated from a headwall or a sideslope seep or spring, permanent initiation points of perennial (stream) flow, alluvial fans, the intersections of two perennial streams. Development activities in any particular jurisdiction need to be open to coordination with adjacent jurisdictions to ensure landscape-scale conditions are providing essential habitat function.
Stormwater management programs associated with MRCI development activities should avoid impairing water quality and quantity. Such programs should preserve or move stream flow patterns (hydrograph) closer to historic hydrologic conditions (e.g., peak flows, base flows, durations, volumes, and velocities) that maintain properly functioning habitat conditions. This can be accomplished by guiding land-use practices at the watershed scale in order to reduce impervious surfaces, maintain forest cover, and retain natural soils. These conditions will, in turn, maintain essential habitat processes such as natural water infiltration rates, transpiration rates, stormwater run-off rates, sediment filtering, and provide hydrographic conditions that sustain aquatic life. NMFS will evaluate the effects that city and county ordinances (submitted for approval under this limit) have on relevant hydrologic processes.
NMFS' evaluations of MRCI development are significantly influenced by a body of science indicating that essential habitat functions are affected to varying (but significant) degrees by streamside activities conducted within a distance equal to the height of the tallest tree that can grow on that site (known as the site potential tree height). This was the basis for the example in the preamble to the proposed rule that used 200 feet (60.9 meters) as the approximate span of a site potential tree height. The distance is measured not from the stream itself, but from the edge of the area within which a stream naturally migrates back and forth over time (the channel migration zone).
NMFS believes that the most effective way to ensure PFC is to manage MRCI development activities in riparian areas so that their impacts on habitat functions are minimal at the streamside, but may gradually increase with distance from the stream. For example, the riparian area is often managed with two zones, an inner zone that has the highest level of protection and is managed primarily to provide stream function by avoiding disturbance, and an outer zone managed for both stream function and as a transition to more heavily used upland areas. The width of each zone should be commensurate with the functions they are intended to provide and, in MRCI settings, reflect the need to buffer an upland disturbance regime that may be more severe than in forest lands; e.g., more frequent entry by humans and domestic animals or exposure to large amounts of nutrients, pesticides, and sediment.
Where erosion within a CMZ is an issue, bank erosion should be controlled through vegetation, carefully bioengineered solutions, or other innovative “soft” bank protection techniques that allow eventual deformation by channel forming processes. Rip-rap blankets or similar hardening techniques should be avoided unless bioengineered solutions are not possible because of particular site constraints. NMFS finds that WDFW's publication, Integrated Streambank Protection Guidelines” (June, 1998) can provide sound guidance with respect to controlling bank erosion, particularly in the area of mitigation for gravel recruitment.
Drained hydric soils that are now incapable of supporting hydrophytic vegetation because of a change in a water regime are not considered wetlands. The basic goal is to establish management that allows wetlands to maintain ecological functions, not to exclude all disturbances. Activities conducted in a wetland management area are generally subject to the COEs' permitting process under section 404 of the CWA and are necessarily subject to ESA section 7 consultation.
While NMFS considers the product of those negotiations—the FFR—to form the core of the ESA 4(d) limit for forestry on non-Federal lands in Washington State, the report will continue to be worked on for at least another year as various sections are refined and completed. Since the FFR was initially published in April of 1999, NMFS staff have made technical and policy contributions to many sections of the report. These include, but are not limited to, FFR “Schedules” (essentially, technical appendices) for Channel Migration Zones, Road Management, Placement of Large Woody Debris, Conversion of Hardwood Riparian Zones, Adaptive Management, and Resource Objectives. Some of these products are formalized as Washington Forest Practice Board (WFPB) Manuals associated with the Emergency Forest Practice Rules (that became effective March 20, 2000) and have been evaluated by the Department of Natural Resources (DNR) in their State Environmental Policy Act Draft Environmental Impact Statement (SEPA DEIS). This document may be found on the web at www.wa.gov/dnr/htdocs/fp/fpb/pdfiles/>.
Specifically, the report claimed the FFR could result in: too-warm waters flowing from some non-fish bearing streams into fish-bearing waters; a failure to identify some small fish-bearing streams; inadequate assessment of some potentially unstable slopes; potential increases in peak-flows that could generally harm incubating fish eggs; a potential reduction in future recruitment of woody material from some non-fish-bearing streams into fish-bearing streams; excessive disturbance and potential delivery of sediments from some non-fish-bearing streams into fish-bearing streams; and, inadequate identification of impaired watershed conditions that may need extra protection. NMFS has assessed all these concerns in light of the best available scientific and commercial information and generally agrees with the environmental analysis summarized in the SEPA DEIS. The moderate environmental risks and levels of uncertainty associated with the FFR are directly addressed by the adaptive management program and the adjustable nature of the ESA 4(d) limit.
The BMPs for roads are also closely related to this issue (see earlier discussion for road-related hydraulic and sediment effects). In addition, the parties to the FFR committed to revising the Hydrology Module in the Washington Forest Practice Board's (FPB's) Watershed Analysis Methodology in order to more accurately assess hydrologic effects. Finally, the DNR also maintains authority to place conditions on any proposed Forest Practice if there is cause to believe that altered hydrologic conditions are of concern. Therefore, NMFS does not believe it necessary at this time to proposed additional conservation measures relating to watershed hydrology.
The March 2000, Board Manual for Emergency Rules, section 2, explains the standard method for measuring CMZs and offers revised Standard Methods guidance. In it, several different ways of determining the CMZ are described, e.g., using historic aerial photographs, intensive field exercises, and field review by a channel expert.
The two primary themes that repeatedly arise in these comments revolve around whether the massive declines in salmonid abundance are brought on by natural conditions or human alteration of the environment. NMFS recognizes that natural environmental fluctuations and increasing numbers of natural predators have recently had negative impacts on the species. However, NMFS believes human-induced impacts (e.g., harvest and widespread habitat modification) have played at least an equally significant role in the salmonid declines up and down the West Coast. And because the very nature of this rule-making—the codification of take prohibitions and the limits placed on them—cannot apply to natural processes (by definition, the ocean cannot not “take” species), the rules necessarily address human activities.
Clearly, NMFS recognizes the need to work closely with the tribes of the region to develop and improve upon information exchange and consultation opportunities relating to salmon and steelhead conservation. Since beginning work on these 4(d) rules NMFS has added a tribal liaison position to its staff to focus on improving communications with the tribes and developing consultation procedures that will meet both NMFS and tribal needs. It is the agency's intent to continue working with tribal governments to develop regularly scheduled meetings between NMFS and tribal technical staff and policy makers to both provide more timely notice regarding NMFS activities and discuss how consultation might occur for future fisheries issues and ESA rulemaking. There remains the opportunity for the tribes and the agency to hold future discussions on applying the ESA 4(d) rules. Such future discussions can include identifying cultural and economic issues requiring the agency's attention and ideas about how such analyses should be conducted. In response to tribal requests, NMFS will correspond with each commenting tribal government, clarify how its comments were addressed, and identify the need for additional meetings to discuss potential rule amendments and modifications.
As to the validity of listing ESUs in the first place, general issues relating to ESUs and the ESA have been discussed extensively in past
In addition, because this is a new approach to promulgating 4(d) rules under the ESA, we are aware that the process may impose some unforseen burdens in terms of time investment and paperwork for all involved parties—including NMFS. To counter this, we will use the principles of adaptive management to streamline the process wherever and whenever possible.
It is important to note, however, that one of the main premises of promulgating these rules is to build a maximally adaptive process for managing salmon on the West Coast. Therefore, it is expected that these rules will continue to change in response to incoming monitoring data, further public input, other proposed limitations on the take prohibitions, and the developing recovery plans for the listed species.
The proposed rules included a lengthy preamble where NMFS provided technical guidance, description of the scientific principles upon which the limits on the take prohibition were based, and a description of the background and content of the 13 limits. The proposed regulatory language was included in sections 223.203 and 223.208. Modifications to the proposed preamble sections based on written comments will be reflected in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000), while the actual changes to the regulatory language are described as follows.
An important change to highlight is that the final 4(d) rules for the different ESUs have different effective dates. In the final steelhead and salmon 4(d) rule the effective date for the steelhead ESUs (§ 223.102(a)(5) through (a)(9) and (a)(14) and (a)(15)) is September 8, 2000. The effective date for the salmon ESUs (§ 223.102(a)(10), (a)(12), (a)(13) and (a)(16) through (a)(19)) is January 8, 2001. NMFS recognizes that the final 4(d) rules are complex and that even the proposed rules created a certain amount of confusion among those who commented on them. The court-ordered settlement date requires NMFS to adopt protective regulations for the steelhead ESUs by June 19, 2000. NMFS, however, is not under a similar court-mandated time line for the salmon ESUs. Therefore, because of the rule's length and complexity, the diverse range of human activities that will potentially be affected, and the continued need to educate all sectors of the public, the effective date for the salmon ESUs will be six months after publication of this
The general format of the proposed regulations included the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538) relating to endangered species being applied to the 14 listed threatened salmonid ESUs, except as provided in the 13 limits on application of the section 9(a)(1)(B) and 9(a)(1)(C) take prohibitions that are included in the regulation. The proposed rules listed the following 13 limit categories: (1) Activities conducted in accord with
NMFS is modifying the final ESA 4(d) protective regulations for these 14 ESUs based on comments and new information received on the proposed rules. The following section summarizes how the regulatory language for each limit and technical issues did or did not change. The actual regulatory descriptions of each limit and technical information can be found in the regulatory text at the end of this
The proposed rules solicited public comments on the draft NMFS VSP paper. The VSP paper is not a separate limit, but provides a technical framework for the fishery management and hatchery management limits. Based on public comments regarding the draft VSP paper, changes were made in the regulatory language for the fishery and hatchery management limits to clarify how the VSP data requirements will be addressed. Additional compliance guidance is available in“A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
For the reasons identified in the Comment and Responses section, language was added to the limits addressing habitat issues, i.e., habitat restoration, pest management and routine road maintenance, in order to define properly functioning condition and how NMFS will evaluate the limits with regard to meeting this biological standard.
For the reasons identified in the Comment and Responses section, regulation language was modified to: (1) add new language to make explicit that it would be the defendant's obligation to plead and prove application of and compliance with a limit as an affirmative defense; (2) clarify the question about whether the rule should be non-severable, by making it explicit that NMFS intends the provisions of this rule to be severable.
No changes were made to the regulations pertaining to this limit. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
No changes were made to the regulations pertaining to this limit. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
No changes were made to the regulations pertaining to this limit. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
For the reasons identified in the comment and response section, this limit was modified to: (1) change the use of a MOA between states and NMFS to a letter of concurrence from NMFS; (2) clarify the use of viable and critical salmonid population thresholds consistent with the VSP paper; (3) clarify the timing of reports describing take of listed salmonids; and (4) explain that the prohibitions on take of threatened steelhead in recreational fisheries managed solely by the states of Oregon, Washington, Idaho and California will go into effect January 8, 2001.
For the reasons identified in the comment and response section, this limit was modified to change the use of a MOA between states and NMFS to a letter of concurrence from NMFS.
No changes were made to the regulations pertaining to this limit. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
NMFS has revised the limit to reflect commenter concerns about the feasibility of adequate oversight by state fishery agencies. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
For the reasons identified in the Comment and Responses section, this limit was modified to: (1) clarify that take prohibitions do not apply to habitat restoration activities provided the activity is part of a WCP that meets criteria listed in the regulation; (2) change the time frame to complete a watershed conservation plan from 2 years to an undetermined time, so that the limit is available whenever the criteria described in the regulation are met; (3) delete the list of six categories of habitat restoration activities that would not have the ESA section 9 take prohibitions applied to them for 2 years; (4) clarify and revise the criteria NMFS will use to evaluate a state's watershed conservation plan guidelines; and (5) clarify that NMFS will not approve individual WCPs; instead, NMFS will approve the WCP guidelines with each state and periodically review the state watershed planning programs for consistency with the guidelines. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
For the reasons identified in the comment and response section, this limit was modified to: (1) allow NMFS-authorized state agency engineers (“authorized officers”) to review and recommend certification of screen designs to NMFS rather than NMFS' engineers solely having this responsibility; and (2) allow NMFS, on a case by case basis, to grant this limit to water diversion projects where NMFS has approved a design construction plan and schedule, including interim operation measures to reduce the likelihood of take. NMFS may also require a commitment of compensatory mitigation if implementation of a plan and schedule is terminated prior to completion.
For the reasons identified in the comment and response section, this limit was modified to: (1) allow this limit to be available to any state, county, city, or port once they have demonstrated in writing that their routine road maintenance activities are equivalent to those in the ODOT Guide which adequately protect threatened salmonid species; or by employees or
For the reasons identified in the Comment and Responses section, this limit was modified to: (1) add new language regarding properly functioning conditions; and (2) clarify language regarding how NMFS will address future program changes and provide public notice that the limit is withdrawn. Additional compliance guidance is available from NMFS in “A Citizen's Guide to the 4(d) Rule” (NMFS, 2000).
For the reasons identified in the Comment and Responses section, this limit was modified to: (1) clarify that this limit applies to MRCI development and redevelopment undertaken by cities, counties, and regional governmental entities; ( 2) expand and clarify the content of the 12 evaluation considerations NMFS will use to review MRCI development ordinances and plans; (3) add new language to emphasize the properly functioning habitat conditions NMFS considers adequate to conserve listed salmonids; (4) clarify that NMFS notes that not all 12 considerations described in the regulation will necessarily be relevant to all ordinances and plans submitted for review and approval; and (5) include language which clarifies the process NMFS will use to provide notice of availability of ordinances and plans for public review, and NMFS' process to amend or withdraw limits.
For the reasons identified in the Comment and Responses section, this limit was modified to add new language stating that actions taken under alternative plans are included in this limit provided that they meet the requirements stated in the regulation and are submitted and approved by the authorized Washington state agency.
These threatened species are in danger of becoming extinct in the foreseeable future. They have been depleted by over-fishing, past and ongoing freshwater and estuarine habitat destruction, hydropower development, hatchery practices, and other causes. It is, therefore, necessary and advisable to put into place ESA section 9(a)(1) prohibitions to aid in their conservation. Section 9(a)(1) prohibitions make it illegal for any person subject to the United States' jurisdiction to “take” these species without written authorization (“take” is defined to occur when a person engages in activities that harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a species or attempt to do any of these). Impacts on a protected species' habitat may harm members of that species and, therefore, constitute a “take” under the ESA. Such an act may include significant habitat modification or degradation that actually kills or injures listed fish by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding, or sheltering.
On July 1, 1994 (59 FR 34272), NMFS and FWS published a policy committing both agencies to identify, to the extent possible, those activities that would or would not violate section 9 of the ESA. The intent of this policy is to increase public awareness about ESA compliance and focus public attention on those actions needed to protect species.
Based on available information, NMFS believes the categories of activities listed here are those activities which as a general rule may be most likely to result in injury or harm to listed salmonids. NMFS wishes to emphasize at the outset that whether injury or harm is resulting from a particular activity is entirely dependent upon the facts and circumstances of each case. The mere fact that an activity may fall within one of these categories does not at all mean that that specific activity is causing harm or injury. These types of activities are, however, those that may be most likely to cause harm and thus violate this rule. NMFS' ESA enforcement will therefore focus on these categories of activities.
Activities listed in A thru J below are as cited in NMFS' harm rule 64 FR 215 (November 8, 1999).
A. Constructing or maintaining barriers that eliminate or impede a listed species' access to habitat or ability to migrate.
B. Discharging pollutants, such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens or organic nutrient-laden water including sewage water into a listed species' habitat.
C. Removing, poisoning, or contaminating plants, fish, wildlife, or other biota required by the listed species for feeding, sheltering, or other essential behavioral patterns.
D. Removing or altering rocks, soil, gravel, vegetation or other physical structures that are essential to the integrity and function of a listed species' habitat.
E. Removing water or otherwise altering streamflow when it significantly impairs spawning, migration, feeding or other essential behavioral patterns.
F. Releasing non-indigenous or artificially propagated species into a listed species' habitat or where they may access the habitat of listed species.
G. Constructing or operating dams or water diversion structures with inadequate fish screens or fish passage facilities in a listed species' habitat.
H. Constructing, maintaining, or using inadequate bridges, roads, or trails on stream banks or unstable hill slopes adjacent to or above a listed species' habitat.
I. Conducting timber harvest, grazing, mining, earth-moving, or other operations which result in substantially increased sediment input into streams.
J. Conducting land-use activities in riparian areas and areas susceptible to mass wasting and surface erosion, which may disturb soil and increase sediment delivered to streams, such as logging, grazing, farming, and road construction.
K. Illegal fishing. Harvest in violation of fishing regulations will be a top enforcement concern.
L. Various streambed disturbances may trample eggs or trap adult fish preparing to spawn. The disturbance could be mechanical disruption caused by constructing push-up dams, removing gravel, mining, or other work in a stream channel. It may also take the form of egg trampling or smothering by livestock in the streambed or by vehicles or equipment being driven
M. Interstate and foreign commerce dealing in listed salmonids and importing or exporting listed salmonids may harm the fish unless it can be shown—through an ESA permit—that they were harvested in a manner that complies with ESA requirements.
N. Altering lands or waters in a manner that promotes unusual concentrations of predators.
O. Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) may retard or prevent the development of certain habitat characteristics upon which the fish depend (e.g., removing riparian trees reduces vital shade and cover, floodplain gravel mining, development, and armoring shorelines reduces the input of critical spawning substrates, and bulkhead construction can eliminate shallow water rearing areas).
P. Filling or isolating side channels, ponds, and intermittent waters (e.g., installing tide gates and impassable culverts) can destroy habitats that the fish depend upon for refuge areas during high flows.
The list provides examples of the types of activities that could have a high risk of resulting in take but it is by no means exhaustive. It is intended to help people avoid violating the ESA and to encourage efforts to save the species. Determination of whether take has actually occurred depends on the circumstances of a particular case.
Many activities that may kill or injure salmonids are regulated by state and/or Federal processes, such as fill and removal authorities, NPDES or other water quality permitting, pesticide use, and the like. For those types of activities, NMFS would not intend to concentrate enforcement efforts on those who operate in conformity with current permits. Rather, if the regulatory program does not provide adequate salmonid protection, NMFS intends to work with the responsible agency to make necessary changes in the program.
For instance, concentrations of pesticides may affect salmonid behavior and reproductive success. Current EPA label requirements were developed in the absence of information about some of these subtle but real impacts on aquatic species such as salmonids. Where new information indicates that label requirements are not adequately protective of salmonids, NMFS will work with EPA through the section 7 consultation process to develop more protective use restrictions, and thereby provide the best possible guidance to all users. Similarly, where water quality standards or state authorizations lead to pollution loads that may cause take, NMFS intends to work with the state water quality agencies and EPA to bring those standards or permitting programs to a point that does protect salmonids.
Persons or entities who conclude that their activity is likely to injure or kill protected fish are encouraged to immediately adjust that activity to avoid take (or adequately limit any impacts on the species) and seek NMFS' authorization for incidental take under (a) an ESA section 10 incidental take permit; (b) an ESA section 7 consultation; or (c) a limit on the take prohibitions provided in this rule. The public is encouraged to contact NMFS (see
State and local efforts like the Oregon Plan for Salmon and Watersheds, the State of Washington's Extinction is Not an Option Plan, Metro's Functional Plan, the Puget Sound Tri-County Initiative and Lower Columbia Fish Recovery Board in Washington state, the Eugene, Oregon-area Metro ESA Coordinating Team, and the Willamette Restoration Initiative (WRI) have stepped forward and assumed leadership roles in saving these species. NMFS reiterates its support for these efforts and encourages them to resolve critical uncertainties and further develop their programs so they can take the place of blanket ESA take prohibitions.
Impacts on listed salmonids resulting from actions in compliance with a permit issued by NMFS pursuant to section 10 of the ESA are not violations of this rule. Section 10 permits may be issued for research activities, enhancement of a species' survival, or to authorize incidental take occurring in the course of an otherwise lawful activity. NMFS consults on a broad range of activities conducted, funded, or authorized by Federal agencies. These include fisheries harvest, hatchery operations, silviculture activities, grazing, mining, road construction, dam construction and operation, discharge of fill material, and stream channelization and diversion. Federally-funded or approved activities that affect listed salmonids and for which ESA section 7 consultations have been completed and any take authorized, will not constitute violations of this rule—provided the activities are conducted in accord with all reasonable and prudent measures, terms, and conditions stated in the consultation and incidental take permit.
A list of references cited in this final rule is available upon request (see
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) was designed to ensure that agencies carefully assess whether aspects of a proposed regulatory scheme (record keeping, safety requirements, etc.) can be tailored to be less burdensome for small businesses while still achieving the agency's statutory responsibilities. NMFS prepared an initial regulatory flexibility analysis (IRFA) which was made available through the proposed rule. Several public comments were received related to the IRFA or to economic impacts generally. Those comments and NMFS responses to them are summarized in the Response to Comments section. NMFS has prepared a Regulatory Impact Review (RIR) and a Final Regulatory Flexibility Analysis (FRFA), taking into consideration the public comments received. A summary of the final FRFA follows. The FRFA is available upon request (see
This ESA 4(d) rule has no specific requirements for regulatory compliance; it essentially sets an enforceable performance standard (do not take listed fish) that applies to all entities and individuals within the ESU unless that activity is within a carefully circumscribed set of activities on which NMFS will not impose the take prohibitions. Hence, the universe of entities reasonably expected to be directly or indirectly impacted by the prohibition is broad.
The geographic range of these regulations crosses four states and the number of entities potentially affected by imposition of take prohibitions is substantial. Activities potentially affecting salmonids are those associated with agriculture, forestry, fishing, mining, heavy construction, highway and street construction, logging, wood and paper mills, electric services, water transportation, tourism, real estate, and other industries. As many of these activities involve local, state, and Federal oversight, including permitting, governmental activities from the smallest towns or planning units to the largest cities will also be impacted. The activities of some nonprofit organizations will also be affected by these regulations.
NMFS examined in as much detail as practical the potential impact of the
There are no recordkeeping or reporting requirements associated with the take prohibition and, therefore, it is not possible to simplify or tailor recordkeeping or reporting to be less burdensome for small entities. Some limits, for which NMFS has found it not necessary to prohibit take, involve recordkeeping and/or reporting to support that continuing determination. NMFS has attempted to minimize any burden associated with programs for which the take prohibitions are not enacted. The final rule does not duplicate, overlap, or conflict with any other relevant Federal rules.
In formulating this rule, NMFS considered several alternative approaches, described in more detail in the FRFA. These included:
(1) Enacting a “global” protective regulation for threatened species, through which section 9 take prohibitions are applied automatically to all threatened species at the time of listing; (2) ESA 4(d) protective regulations with no limits, or only a few limits, on the application of the take prohibition for relatively uncontroversial activities such as fish rescue/salvage; (3) take prohibitions in combination with detailed prescriptive requirements applicable to one or more sectors of activity; (4) ESA 4(d) protective regulations similar to the existing interim 4(d) protective regulations for Southern Oregon/Northern California coast coho, which includes four limits on the take prohibition for harvest plans, hatchery plans, scientific research, and habitat restoration projects, when in conformance with specified criteria; (5) a protective regulation similar to the interim rule, but with recognition of more programs and circumstances in which application of take prohibitions is not necessary and advisable; (6) an option earlier advocated by the State of Oregon and others, in which ESA section 9 take prohibitions would not be applied to any activity addressed by the Oregon Plan for Salmon and Watersheds, fundamentally deferring protections to the state; and (7) enacting no protective regulations for threatened steelhead. The first four alternatives would place greater burdens on small entities. Alternative 6 would not provide sufficient protections (see response to comments), while alternative 7 would leave the ESUs without any protection other than provided by ESA section 7 consultations for actions with some Federal nexus. NMFS could not support that approach as being consistent with the obligation to enact such protective regulations as are “necessary and advisable to provide for the conservation of” the listed steelhead. Alterative 5 is the approach taken in this rule.
As a result of comments received related to the proposed rules and IRFAs, NMFS has modified the regulations to broaden the applicability of some limits, and to make them more flexible. For instance, the road maintenance limit is now generally available. The limit for development has been broadened to cover a greater range of types of plans or ordinances, and has been modified to allow for circumstances where a jurisdiction's ordinances may not address all of the evaluation criteria, but nonetheless are adequate for a limit for those aspects addressed. These types of adjustments provide additional options for jurisdictions that may wish to seek ESA compliance assurances.
NMFS concludes that at the present time there are no legally viable alternatives to the final rule, as modified from the proposals, that would have less impact on small entities and still fulfill the agency's obligations to protect listed salmonids. The first four alternatives may result in unnecessary impacts on economic activity of small entities, given NMFS' judgment that more limited protections would suffice to conserve the species.
Under E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has prepared a Regulatory Impact Review (RIR) which considers costs and benefits of available regulatory alternatives, including the alternative of not regulating. Costs and benefits include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits where estimates cannot be meaningfully made for impacts that are essential to consider. We cannot quantify the economic effect of this rule, given the geographic scope and the size and economic dimensions of the potentially affected economic sectors that operate within the ESUs, but have considered costs and benefits qualitatively in structuring the rule. Although only a share of the benefits from the recovery of threatened salmonids to a sustainable level would be attributable to this rule, it is clear that the potential costs associated with imposing take prohibitions to protect those salmonids are associated with substantial potential tangible and intangible returns.
The ESA limits NMFS to alternatives that lead to recovery, but in choosing among alternatives, we are obligated to consider taking the least cost path. NMFS has concluded that among the alternative regulatory approaches, the approach in this final rule (with changes made in response to public comment) will maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity) and minimize costs, within the constraints of the ESA. Because this alternative exempts activities that fall within adequate state or local programs, NMFS' involvement will be more collaborative and less often require enforcement actions. This alternative has the greatest probability that compliance burdens will be equally shared, that economic incentives will be employed in appropriate cases, and that practical standards adapted to the particular characteristics of a state or region will aid citizens in reducing the risks of take in an efficient way. For these reasons, it is likely that this alternative will minimize the financial burden on the public of avoiding take over the long term.
E.O. 13084 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian tribal governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments or the Federal government must provide the funds necessary to pay the direct compliance costs incurred by the tribal governments. This rule does not impose substantial direct compliance costs on the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this final rule.
Nonetheless, NMFS took several steps to inform tribal governments and solicit their input during development of the proposed rule, and made numerous adjustments to the proposal as a result of those contacts. A number of Indian tribal governments, as well as both the Columbia River Intertribal and Northwest Indian Fisheries
E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this rule. In fact, this rule provides a route by which NMFS may defer to state and local government programs, where they provide necessary protections for threatened salmonids.
Although not required by E.O. 13132, in keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, NMFS conferred with numerous state, local and other governmental entities while preparing the proposed rules, and has had continued informal and formal contacts with all affected states. We have held workshops explaining the rule to interested local or regional entities and exploring possible implementation strategies as well as options for future limits with those attending.
In addition to these efforts, NMFS staff have given numerous presentations to interagency forums, community groups, and others, and served on a number of interagency advisory groups or task forces considering conservation measures. Many cities, counties and other local governments have sought guidance and consideration of their planning efforts from NMFS, and NMFS staff have met with them as rapidly as our resources permit. Finally, NMFS' Sustainable Fisheries Division staff have continued close coordination with state fisheries agencies toward development of artificial propagation and harvest plans and programs that will be protective of listed salmonids and ultimately may be recognized within this rule. NMFS expects to continue to work with all of these entities in implementing this rule.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under control number 0648-0399. Public reporting burden per response for this collection of information is estimated to average 5 hours for a submission on diversion screenings or for a report on salmonids assisted, disposed of, or salvaged; 20 hours to prepare a road maintenance agreement; 30 hours for an urban ordinance development package; and 10 hours for an urban development annual report. These estimates include the 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 these burden estimates, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
NMFS prepared an Environmental Assessment (EA), as defined under the authority of the National Environmental Policy Act (NEPA) of 1969, in connection with this regulation. Based on review and evaluation of the information contained in the EA, we determined that the proposed action to promulgate protective regulations for 14 threatened salmonid ESUs, and to create limits on the applicability of the prohibition on taking any of those salmonids would not be a major Federal action that would significantly affect the quality of the human environment within the meaning of section 102(2)(c) of NEPA of 1969. NMFS received a number of comments related to NEPA compliance, which are summarized together with responses elsewhere in this notice. NMFS believes the EA examined appropriate alternatives, and that preparation of an EIS is not required. Accordingly, we adhere to our prior Finding of No Significant Impact (FONSI) for this action. The EA and FONSI are available (see
Endangered and threatened species, Exports, Imports, Marine mammals, Transportation,
For reasons set out in the preamble, 50 CFR part 223 is amended as follows:
1. The authority citation for part 223 is revised to read as follows:
16 U.S.C. 1531-1543; subpart B, § 223.12 also issued under 16 U.S.C. 1361
2. Section 223.203 is revised to read as follows:
(a)
(b)
(2) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to activities specified in an application for a permit for scientific purposes or to enhance the conservation or survival of the species, provided that the application has been received by the Assistant Administrator for Fisheries, NOAA (AA), no later than October 10, 2000. The prohibitions of paragraph (a) of this section apply to these activities upon the AA's rejection of the application as insufficient, upon issuance or denial of a permit, or March 7, 2001, whichever occurs earliest.
(3) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(4) through (a)(10), and (a)(12) through (a)(19) do not apply to any employee or designee of NMFS, the United States Fish and Wildlife Service, any Federal land management agency, the Idaho Department of Fish and Game (IDFG), Washington Department of Fish
(i) Aid a sick, injured, or stranded salmonid,
(ii) Dispose of a dead salmonid, or
(iii) Salvage a dead salmonid which may be useful for scientific study.
(iv) Each agency acting under this limit on the take prohibitions of paragraph (a) of this section is to report to NMFS the numbers of fish handled and their status, on an annual basis. A designee of the listed entities is any individual the Federal or state fishery agency or other co-manager has authorized in writing to perform the listed functions.
(4) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to fishery harvest activities provided that:
(i) Fisheries are managed in accordance with a NMFS-approved Fishery Management and Evaluation Plan (FMEP) and implemented in accordance with a letter of concurrence from NMFS. NMFS will approve an FMEP only if it clearly defines its intended scope and area of impact and sets forth the management objectives and performance indicators for the plan. The plan must adequately address the following criteria:
(A) Define populations within affected listed ESUs, taking into account spatial and temporal distribution, genetic and phenotypic diversity, and other appropriate identifiably unique biological and life history traits. Populations may be aggregated for management purposes when dictated by information scarcity, if consistent with survival and recovery of the listed ESU. In identifying management units, the plan shall describe the reasons for using such units in lieu of population units, describe how the management units are defined, given biological and life history traits, so as to maximize consideration of the important biological diversity contained within the listed ESU, respond to the scale and complexity of the ESU, and help ensure consistent treatment of listed salmonids across a diverse geographic and jurisdictional range.
(B) Utilize the concepts of “viable” and “critical” salmonid population thresholds, consistent with the concepts contained in the technical document entitled “Viable Salmonid Populations (NMFS, 2000b).” The VSP paper provides a framework for identifying the biological requirements of listed salmonids, assessing the effects of management and conservation actions, and ensuring that such actions provide for the survival and recovery of listed species. Proposed management actions must recognize the significant differences in risk associated with viable and critical population threshold states and respond accordingly to minimize the long-term risks to population persistence. Harvest actions impacting populations that are functioning at or above the viable threshold must be designed to maintain the population or management unit at or above that level. For populations shown with a high degree of confidence to be above critical levels but not yet at viable levels, harvest management must not appreciably slow the population's achievement of viable function. Harvest actions impacting populations that are functioning at or below critical threshold must not be allowed to appreciably increase genetic and demographic risks facing the population and must be designed to permit the population's achievement of viable function, unless the plan demonstrates that the likelihood of survival and recovery of the entire ESU in the wild would not be appreciably reduced by greater risks to that individual population.
(C) Set escapement objectives or maximum exploitation rates for each management unit or population based on its status and on a harvest program that assures that those rates or objectives are not exceeded. Maximum exploitation rates must not appreciably reduce the likelihood of survival and recovery of the ESU. Management of fisheries where artificially propagated fish predominate must not compromise the management objectives for commingled naturally spawned populations.
(D) Display a biologically based rationale demonstrating that the harvest management strategy will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild, over the entire period of time the proposed harvest management strategy affects the population, including effects reasonably certain to occur after the proposed actions cease.
(E) Include effective monitoring and evaluation programs to assess compliance, effectiveness, and parameter validation. At a minimum, harvest monitoring programs must collect catch and effort data, information on escapements, and information on biological characteristics, such as age, fecundity, size and sex data, and migration timing.
(F) Provide for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed.
(G) Provide for effective enforcement and education. Coordination among involved jurisdictions is an important element in ensuring regulatory effectiveness and coverage.
(H) Include restrictions on resident and anadromous species fisheries that minimize any take of listed species, including time, size, gear, and area restrictions.
(I) Be consistent with plans and conditions established within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations.
(ii) The state monitors the amount of take of listed salmonids occurring in its fisheries and provides to NMFS on a regular basis, as defined in NMFS' letter of concurrence for the FMEP, a report summarizing this information, as well as the implementation and effectiveness of the FMEP. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the FMEP.
(iii) The state confers with NMFS on its fishing regulation changes affecting listed ESUs to ensure consistency with the approved FMEP. Prior to approving a new or amended FMEP, NMFS will publish notification in the
(iv) NMFS provides written concurrence of the FMEP which specifies the implementation and reporting requirements. NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate. On a regular basis, NMFS will evaluate the effectiveness of the program in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If it is not, NMFS will identify ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the
(v) The prohibitions of paragraph (a) of this section relating to threatened species of steelhead listed in § 223.102 (a)(5) through (a)(9), (a)(14), and (a)(15) do not apply to fisheries managed solely by the states of Oregon, Washington, Idaho, and California until January 8, 2001.
(5) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to activity associated with artificial propagation programs provided that:
(i) A state or Federal Hatchery and Genetics Management Plan (HGMP) has been approved by NMFS as meeting the following criteria:
(A) The HGMP has clearly stated goals, performance objectives, and performance indicators that indicate the purpose of the program, its intended results, and measurements of its performance in meeting those results. Goals shall address whether the program is intended to meet conservation objectives, contribute to the ultimate sustainability of natural spawning populations, and/or intended to augment tribal, recreational, or commercial fisheries. Objectives should enumerate the results desired from the program that will be used to measure the program's success or failure.
(B) The HGMP utilizes the concepts of viable and critical salmonid population threshold, consistent with the concepts contained in the technical document entitled “Viable Salmonid Populations” (NMFS, 2000b). Listed salmonids may be purposefully taken for broodstock purposes only if the donor population is currently at or above the viable threshold and the collection will not impair its function; if the donor population is not currently viable but the sole objective of the current collection program is to enhance the propagation or survival of the listed ESU; or if the donor population is shown with a high degree of confidence to be above critical threshold although not yet functioning at viable levels, and the collection will not appreciably slow the attainment of viable status for that population.
(C) Taking into account health, abundances, and trends in the donor population, broodstock collection programs reflect appropriate priorities. The primary purpose of broodstock collection programs of listed species is to reestablish indigenous salmonid populations for conservation purposes. Such programs include restoration of similar, at-risk populations within the same ESU, and reintroduction of at-risk populations to underseeded habitat. After the species' conservation needs are met and when consistent with survival and recovery of the ESU, broodstock collection programs may be authorized by NMFS such for secondary purposes, as to sustain tribal, recreational, and commercial fisheries.
(D) The HGMP includes protocols to address fish health, broodstock collection, broodstock spawning, rearing and release of juveniles, deposition of hatchery adults, and catastrophic risk management.
(E) The HGMP evaluates, minimizes, and accounts for the propagation program's genetic and ecological effects on natural populations, including disease transfer, competition, predation, and genetic introgression caused by the straying of hatchery fish.
(F) The HGMP describes interrelationships and interdependencies with fisheries management. The combination of artificial propagation programs and harvest management must be designed to provide as many benefits and as few biological risks as possible for the listed species. For programs whose purpose is to sustain fisheries, HGMPs must not compromise the ability of FMEPs or other management plans to conserve listed salmonids.
(G) Adequate artificial propagation facilities exist to properly rear progeny of naturally spawned broodstock, to maintain population health and diversity, and to avoid hatchery-influenced selection or domestication.
(H) Adequate monitoring and evaluation exist to detect and evaluate the success of the hatchery program and any risks potentially impairing the recovery of the listed ESU.
(I) The HGMP provides for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed;
(J) NMFS provides written concurrence of the HGMP which specifies the implementation and reporting requirements. For Federally operated or funded hatcheries, the ESA section 7 consultation will achieve this purpose.
(K) The HGMP is consistent with plans and conditions set within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations.
(ii) The state monitors the amount of take of listed salmonids occurring in its hatchery program and provides to NMFS on a regular basis a report summarizing this information, and the implementation and effectiveness of the HGMP as defined in NMFS' letter of concurrence. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the HGMP.
(iii) The state confers with NMFS on a regular basis regarding intended collections of listed broodstock to ensure congruity with the approved HGMP.
(iv) Prior to final approval of an HGMP, NMFS will publish notification in the
(v) NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate.
(vi) On a regular basis, NMFS will evaluate the effectiveness of the HGMP in protecting and achieving a level of salmonid productivity commensurate with the conservation of the listed salmonids. If the HGMP is not effective, the NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the
(6) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(7), (a)(8), (a)(10), and (a)(12) through (a)(19) do not apply to actions undertaken in compliance with a resource management plan developed jointly by the States of Washington, Oregon and/or Idaho and the Tribes (joint plan) within the continuing jurisdiction of
(i) The Secretary has determined pursuant to 50 CFR 223.209 and the government-to-government processes therein that implementing and enforcing the joint tribal/state plan will not appreciably reduce the likelihood of survival and recovery of affected threatened ESUs.
(ii) The joint plan will be implemented and enforced within the parameters set forth in
(iii) In making that determination for a joint plan, the Secretary has taken comment on how any fishery management plan addresses the criteria in § 223.203(b)(4), or on how any hatchery and genetic management plan addresses the criteria in § 223.203(b)(5).
(iv) The Secretary shall publish notice in the
(v) On a regular basis, NMFS will evaluate the effectiveness of the joint plan in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If the plan is not effective, then NMFS will identify to the jurisdiction ways in which the joint plan needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the
(7) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to scientific research activities provided that:
(i) Scientific research activities involving purposeful take is conducted by employees or contractors of the ODFW, WDFW (Agencies), IDFG, or CDFG (Agencies), or as a part of a monitoring and research program overseen by or coordinated with that Agency.
(ii) The Agencies provide for NMFS' review and approval a list of all scientific research activities involving direct take planned for the coming year, including an estimate of the total direct take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact.
(iii) The Agencies annually provide to NMFS the results of scientific research activities directed at threatened salmonids, including a report of the direct take resulting from the studies and a summary of the results of such studies.
(iv) Scientific research activities that may incidentally take threatened salmonids are either conducted by agency personnel, or are in accord with a permit issued by the Agency.
(v) The Agencies provide NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take threatened salmonids during the coming year. Such reports shall also contain the amount of incidental take of threatened salmonids occurring in the previous year's scientific research activities and a summary of the results of such research.
(vi) Electrofishing in any body of water known or suspected to contain threatened salmonids is conducted in accordance with NMFS “Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a).
(vii) NMFS' approval of a research program shall be a written approval by NMFS Northwest or Southwest Regional Administrator.
(8) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12), through (a)(19) do not apply to habitat restoration activities, as defined in paragraph (b)(8)(iv) of this section, provided that the activity is part of a watershed conservation plan, and:
(i) The watershed conservation plan has been certified by the State of Washington, Oregon, Idaho, or California (State) to be consistent with the state's watershed conservation plan guidelines.
(ii) The State's watershed conservation plan guidelines have been found by NMFS to provide for plans that:
(A) Take into account the potential severity of direct, indirect, and cumulative impacts of proposed activities in light of the status of affected species and populations.
(B) Will not reduce the likelihood of either survival or recovery of listed species in the wild.
(C) Ensure that any taking will be incidental.
(D) Minimize and mitigate any adverse impacts.
(E) Provide for effective monitoring and adaptive management.
(F) Use the best available science and technology, including watershed analysis.
(G) Provide for public and scientific review and input.
(H) Include any measures that NMFS determines are necessary or appropriate.
(I) Include provisions that clearly identify those activities that are part of plan implementation.
(J) Control risk to listed species by ensuring funding and implementation of the above plan components.
(iii) NMFS will periodically review state certifications of Watershed Conservation Plans to ensure adherence to approved watershed conservation plan guidelines.
(iv) “Habitat restoration activity” is defined as an activity whose primary purpose is to restore natural aquatic or riparian habitat conditions or processes. “Primary purpose” means the activity would not be undertaken but for its restoration purpose.
(v) Prior to approving watershed conservation plan guidelines under paragraph (b)(8)(ii) of this section, NMFS will publish notification in the
(9) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to the physical diversion of water from a stream or lake, provided that:
(i) NMFS' engineering staff or any resource agency or tribe NMFS designates (authorized officer) has agreed in writing that the diversion facility is screened, maintained, and operated in compliance with Juvenile Fish Screen Criteria, National Marine Fisheries Service, Northwest Region, Revised February 16, 1995, with Addendum of May 9, 1996, or in California with NMFS' Southwest Region “Fish Screening Criteria for Anadromous Salmonids, January 1997” or with any subsequent revision.
(ii) The owner or manager of the diversion allows any NMFS engineer or authorized officer access to the diversion facility for purposes of inspection and determination of continued compliance with the criteria.
(iii) On a case by case basis, NMFS or an Authorized Officer will review and approve a juvenile fish screen design
(iv) This limit on the prohibitions of paragraph (a) of this section does not encompass any impacts of reduced flows resulting from the diversion or impacts caused during installation of the diversion device. These impacts are subject to the prohibition on take of listed salmonids.
(10) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to routine road maintenance activities provided that:
(i) The activity results from routine road maintenance activity conducted by ODOT employees or agents that complies with ODOT's Transportation Maintenance Management System Water Quality and Habitat Guide (July, 1999); or by employees or agents of a state, county, city or port that complies with a program substantially similar to that contained in the ODOT Guide that is determined to meet or exceed the protections provided by the ODOT Guide; or by employees or agents of a state, county, city or port that complies with a routine road maintenance program that meets proper functioning habitat conditions as described further in subparagraph (ii) following. NMFS' approval of state, city, county, or port programs that are equivalent to the ODOT program, or of any amendments, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. Any jurisdiction desiring its routine road maintenance activities to be within this limit must first commit in writing to apply management practices that result in protections equivalent to or better than those provided by the ODOT Guide, detailing how it will assure adequate training, tracking, and reporting, and describing in detail any dust abatement practices it requests to be covered.
(ii) NMFS finds the routine road maintenance activities of any state, city, county, or port to be consistent with the conservation of listed salmonids' habitat when it contributes, as does the ODOT Guide, to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than one year, NMFS will publish notification in the
(iii) Prior to implementing any changes to a program within this limit the jurisdiction provides NMFS a copy of the proposed change for review and approval as within this limit.
(iv) Prior to approving any state, city, county, or port program as within this limit, or approving any substantive change in a program within this limit, NMFS will publish notification in the
(v) Pesticide and herbicide spraying is not included within this limit, even if in accord with the ODOT guidance.
(11) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to activities within the City of Portland, Oregon Parks and Recreation Department's (PP&R) Pest Management Program (March 1997), including its Waterways Pest Management Policy updated December 1, 1999, provided that:
(i) Use of only the following chemicals is included within this limit on the take prohibitions: Round Up, Rodeo, Garlon 3A, Surfactant LI-700, Napropamide, Cutrine Plus, and Aquashade.
(ii) Any chemical use is initiated in accord with the priorities and decision processes of the Department's Pest Management Policy, including the Waterways Pest Management Policy, updated December 1, 1999.
(iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with the buffer application constraints contained in PP&R's Waterways Pest Management Policy (update December 1, 1999).
(iv) Prior to implementing any changes to this limit, the PP&R provides NMFS with a copy of the proposed change for review and approval as within this limit.
(v) Prior to approving any substantive change in a program within this limit, NMFS will publish notification in the
(vi) NMFS' approval of amendments shall be a written approval by NMFS Northwest Regional Administrator.
(vii) NMFS finds the PP&R Pest Management Program activities to be consistent with the conservation of listed salmonids' habitat by contributing to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of a watershed's natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate the effectiveness of an approved program in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not
(12) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to municipal, residential, commercial, and industrial (MRCI) development (including redevelopment) activities provided that:
(i) Such development occurs pursuant to city, county, or regional government ordinances or plans that NMFS has determined are adequately protective of listed species; or within the jurisdiction of the Metro regional government in Oregon and pursuant to ordinances that Metro has found comply with its Urban Growth Management Functional Plan (Functional Plan) following a determination by NMFS that the Functional Plan is adequately protective. NMFS approval or determinations about any MRCI development ordinances or plans, including the Functional Plan, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. NMFS will apply the following 12 evaluation considerations when reviewing MRCI development ordinances or plans to assess whether they adequately conserve listed salmonids by maintaining and restoring properly functioning habitat conditions:
(A) MRCI development ordinance or plan ensures that development will avoid inappropriate areas such as unstable slopes, wetlands, areas of high habitat value, and similarly constrained sites.
(B) MRCI development ordinance or plan adequately avoids stormwater discharge impacts to water quality and quantity or to the hydrograph of the watershed, including peak and base flows of perennial streams.
(C) MRCI development ordinance or plan provides adequately protective riparian area management requirements to attain or maintain PFC around all rivers, estuaries, streams, lakes, deepwater habitats, and intermittent streams. Compensatory mitigation is provided, where necessary, to offset unavoidable damage to PFC due to MRCI development impacts to riparian management areas.
(D) MRCI development ordinance or plan avoids stream crossings by roads, utilities, and other linear development wherever possible, and, where crossings must be provided, minimize impacts through choice of mode, sizing, and placement.
(E) MRCI development ordinance or plan adequately protects historical stream meander patterns and channel migration zones and avoids hardening of stream banks and shorelines.
(F) MRCI development ordinance or plan adequately protects wetlands and wetland functions, including isolated wetlands.
(G) MRCI development ordinance or plan adequately preserves the hydrologic capacity of permanent and intermittent streams to pass peak flows.
(H) MRCI development ordinance or plan includes adequate provisions for landscaping with native vegetation to reduce need for watering and application of herbicides, pesticides, and fertilizer.
(I) MRCI development ordinance or plan includes adequate provisions to prevent erosion and sediment run-off during construction.
(J) MRCI development ordinance or plan ensures that water supply demands can be met without impacting flows needed for threatened salmonids either directly or through groundwater withdrawals and that any new water diversions are positioned and screened in a way that prevents injury or death of salmonids.
(K) MRCI development ordinance or plan provides necessary enforcement, funding, reporting, and implementation mechanisms and formal plan evaluations at intervals that do not exceed 5 years.
(L) MRCI development ordinance and plan complies with all other state and Federal environmental and natural resource laws and permits.
(ii) The city, county or regional government provides NMFS with annual reports regarding implementation and effectiveness of the ordinances, including: any water quality monitoring information the jurisdiction has available; aerial photography (or some other graphic display) of each MRCI development or MRCI expansion area at sufficient detail to demonstrate the width and vegetation condition of riparian set-backs; information to demonstrate the success of stormwater management and other conservation measures; and a summary of any flood damage, maintenance problems, or other issues.
(iii) NMFS finds the MRCI development activity to be consistent with the conservation of listed salmonids' habitat when it contributes to the attainment and maintenance of PFC. NMFS defines PFC as the sustained presence of a watershed's habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than 1 year, NMFS will publish notification in the
(iv) Prior to approving any city, county, or regional government ordinances or plans as within this limit, or approving any substantive change in an ordinance or plan within this limit, NMFS will publish notification in the
(13) The prohibitions of paragraph (a) of this section relating to threatened
(i) The action is in compliance with forest practice regulations adopted and implemented by the Washington Forest Practices Board that NMFS has found are at least as protective of habitat functions as are the regulatory elements of the Forests and Fish Report dated April 29, 1999, and submitted to the Forest Practices Board by a consortium of landowners, tribes, and state and Federal agencies.
(ii) All non-regulatory elements of the Forests and Fish Report are being implemented.
(iii) Actions involving use of herbicides, pesticides, or fungicides are not included within this limit.
(iv) Actions taken under alternative plans are included in this limit provided that the Washington Department of Natural Resources (WDNR) finds that the alternate plans protect physical and biological processes at least as well as the state forest practices rules and provided that NMFS, or any resource agency or tribe NMFS designates, has the opportunity to review the plan at every stage of the development and implementation. A plan may be excluded from this limit if, after such review, WDNR determines that the plan is not likely to adequately protect listed salmon.
(v) Prior to determining that regulations adopted by the Forest Practice Board are at least as protective as the elements of the Forests and Fish Report, NMFS will publish notification in the
(vi) NMFS finds the activities to be consistent with the conservation of listed salmonids' habitat by contributing to the attainment and maintenance of PFC. NMFS defines PFC as the sustained presence of a watershed's natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Programs must meet this biological standard in order for NMFS to find they qualify for a habitat-related limit. NMFS uses the best available science to make these determinations. NMFS may review and revise previous findings as new scientific information becomes available. NMFS will evaluate the effectiveness of the program in maintaining and achieving habitat function that provides for conservation of the listed salmonids. If the program is not adequate, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If Washington does not make changes to respond adequately to the new information, NMFS will publish notification in the
(vii) NMFS approval of regulations shall be a written approval by NMFS Northwest Regional Administrator.
(c)
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
The National Marine Fisheries Service (NMFS) is issuing a final rule to modify the ESA section 9 take prohibitions applied to threatened salmon and steelhead. The modification will create a section 4(d) limitation on those prohibitions for tribal resource management plans (Tribal Plans), where the Secretary of Commerce (Secretary) has determined that implementing that Tribal Plan will not appreciably reduce the likelihood of survival and recovery for the listed species. This rule intends to harmonize statutory conservation requirements with tribal rights and the Federal trust responsibility to tribes.
Effective September 8, 2000.
Branch Chief, NMFS, Northwest Region, Protected Resources Division, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737; Assistant Regional Administrator, Protected Resources Division, NMFS, Southwest Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; Salmon Coordinator, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Garth Griffin at 503-231-2005; Craig Wingert at 562-980-4021.
Reference materials regarding this final rule can also be obtained from the internet at www.nwr.noaa.gov.
For the past decade NMFS has been conducting ESA status reviews for salmon and steelhead throughout the Pacific Northwest and California. To date, these reviews have identified 20 population groups, or “evolutionarily significant units” (ESUs), that warrant threatened status under the ESA. Section 4(d) of the ESA provides that whenever a species is listed as threatened, the Secretary shall issue such regulations (i.e., “4(d) rules”) as he deems necessary and advisable for the conservation of the species. Such 4(d) rules may include any or all of the prohibitions that apply automatically to protect endangered species under ESA section 9(a). Those section 9(a) prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as endangered, unless with written authorization for incidental take. NMFS has promulgated ESA 4(d) rules that apply the section 9 take prohibitions to nearly all threatened salmon and steelhead ESUs. In a recent ESA 4(d) rule addressing 14 of these ESUs (i.e., the salmon/steelhead 4(d) rules published elsewhere in this
This final rule acknowledges that the United States has a unique legal relationship with Indian tribes as set forth in the Constitution of the United States, treaties, statutes, executive orders, and court decisions. The appropriate exercise of its trust obligation commits the United States to harmonize its many statutory responsibilities with the tribal exercise of tribal sovereignty, tribal rights, and tribal self-determination. NMFS believes that this final rule recognizes the unique legal and political relationships between tribes and the United States, and is in keeping with the trust responsibility to Indian tribes. Furthermore, NMFS believes that additional Federal protections are not needed for activities carried out under those Tribal Plans deemed by the Secretary to not appreciably reduce the likelihood of survival and recovery of an ESU.
Between January 10 and February 22, 2000, NMFS held 25 public hearings in Washington, Oregon, Idaho, and California to allow for public testimony and to discuss the proposed tribal plan limit and salmon/steelhead ESA 4(d) rules. The agency also requested comments from all interested parties and conferred with affected tribes throughout the Pacific Northwest and California. The agency received approximately 20 written comments pertaining to the proposed tribal plan limit. New information, comments, and responses are summarized here. Copies of references, reports and related documents are available upon request (see
NMFS recognizes the need to work closely with the tribes of the region to develop and improve upon information exchange and consultation opportunities relating to salmon and steelhead conservation. Since beginning work on these ESA 4(d) rules, NMFS' Northwest Region has added a tribal liaison position to its staff to focus on improving communications with the
There remains the opportunity for the tribes and the agency to hold future discussions on application of the ESA 4(d) rules. Such future discussions can include the identification of cultural/economic issues requiring the agency's attention and ideas on how such analyses should be conducted. In response to tribal requests, NMFS will correspond with each commenting tribal government, clarify how its comments were addressed, and identify the need for additional meetings to discuss potential amendments and/or modifications to the rules.
Some commenters addressed the Secretarial review process, in particular the need to take into account the impacts of non-tribal activities on the listed species so that any assessment of Tribal Plans would accurately assess impacts that are beyond tribal control. After such review has been completed, and if a Tribal Plan was found to be insufficient, some commenters stated the Secretary should provide specific comments to the affected tribe(s) so that they have an opportunity to respond. These and other commenters noted that NMFS has an obligation to abide by Principle 3(C) (i.e., the “Conservation Necessity Principle”) of the June 1997 Secretarial Order No. 3206 entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (Secretarial Order). Additionally, some commenters suggested the Secretarial review have specific time constraints (e.g., 60 days) so tribes could plan on implementing approved actions in a timely manner.
NMFS respectfully disagrees with the suggestion that tribes should have the ultimate responsibility for making a determination that a Tribal Plan will not appreciably reduce the likelihood of survival and recovery of threatened salmon or steelhead. This determination cannot be delegated by the Secretary to a tribal government. However, NMFS agrees that in making the determination it must work closely with the tribes to determine the level of impact, if any, on threatened species. As suggested by one tribal commenter, this means the Secretary shall consider data and analysis provided by the tribe and shall defer, where appropriate, to the tribe's conclusion that a Tribal Plan does not appreciably reduce the likelihood of survival and recovery of the species. If the Secretary determines a Tribal Plan should be modified, the tribe will be informed as soon as possible with a detailed explanation of what changes are recommended and the reason for the changes.
It is NMFS' view that, given the sovereign status of the tribes it is inappropriate to describe in this final rule the specific qualifying criteria for Tribal Plans. The plans will be held to the same fundamental ESA standard as any other activity, and will be evaluated consistent with principles outlined in the Secretarial Order. NMFS will work with tribes to the maximum extent practicable to craft plans that will meet the needs of listed species and accomplish the goals of the tribes. Furthermore, NMFS recognizes, as stated in the Secretarial Order, that it has a trust obligation to minimize impacts on tribes as much as possible while still meeting agency responsibilities under the ESA.
With respect to reporting requirements, NMFS believes it would be inappropriate to require a specific time period for all Tribal Plans, and instead prefers to allow tribes to suggest schedules that meet their needs. Also, it is not feasible to place mandatory time limits on the Secretary's review since the Tribal Plans themselves will likely vary considerably in size and complexity. Regarding the scope of the tribal plan limit, the proposed rule states this rule would apply to all existing and future listings of threatened salmonids promulgated by NMFS “whenever final protective regulations make the take prohibitions of ESA section 9(a) applicable” to the particular species/ESU.
Finally, regarding the process for public notification, NMFS is obliged to make public the determinations made under section 4 of the ESA. This is in contrast with other statutory provisions (e.g., ESA section 7 consultations) that do not include public review and comment processes. If the tribes elect to develop and submit plans under the tribal plan limit, the pending determination of the Secretary regarding survival and recovery of listed species is subject to public review and comment. However, public notification will focus on those features of a Tribal Plan needed to understand the Secretary's pending determination and NMFS will take all appropriate actions to ensure confidential information is protected to the maximum extent possible under applicable law. Furthermore, the public notification process will focus on the Secretary's pending decision, not on the Tribal Plan. In other words the agency will consider only those comments concerning the adequacy of the Secretary's pending determination that a Tribal Plan will or will not result in an appreciable reduction in the likelihood of survival and recovery.
The unique political and constitutional relationship between the United States and Indian tribes as described in this rule involves Federally recognized tribes. It would be inappropriate to base the tribal plan limit's applicability on some other characteristic such as possession of off-reservation fishing rights. The agency's compliance with the ESA, the Secretarial Order, and its trust obligations to the tribes will not expand any rights held by the tribes. Those rights and authorities exist by virtue of the tribe being a sovereign entity; NMFS does not have the ability to limit or expand them.
NMFS disagrees with comments suggesting the tribal plan limit will provide a “blank check” to the tribes to conduct activities that may affect listed species. Although the tribes and Federal government maintain a unique relationship, NMFS has an important role in administering the ESA. This includes reviewing Tribal Plans to assess and determine that proposed actions do not appreciably reduce the likelihood of survival and recovery.
NMFS strongly concurs that tribes in terminal fisheries areas are placed at a significant disadvantage when they attempt to exercise their treaty or trust rights to harvest fish. The majority of salmon or steelhead harvested in these fisheries are likely to be listed under the ESA, offering little or no opportunity to pursue a NMFS authorization for incidental take. It is difficult to characterize such harvest as “incidental” take. This is in contrast to harvest that occurs in fisheries in which listed fish intermingle with unlisted fish (“mixed-stock fisheries”). This issue was an important motivation for NMFS to develop the tribal plan limit. Adoption of this limit will enable NMFS to authorize tribal harvest in terminal fisheries, so long as NMFS concludes that harvest will not impair the survival and recovery of the listed ESU. Tribes exercising their rights to fish will no longer be held to a different standard than others who have opportunities to harvest fish in mixed-stock fisheries, or who take listed fish when conducting other non-harvest activities.
Finally, in stating that “[T]ribal activities have not been identified as major factors contributing to the decline of threatened species,” the agency considered the totality of tribal actions in the context of all historic impacts on the species. Tribes have a long history of promoting sound resource management in a manner that takes into account a wide variety of environmental values, including ESA-listed species.
NMFS is modifying the proposed rule based on comments and new information received. The regulatory language has been modified to: (1) include the phrase “tribal employee” in the list of entities subject to the tribal plan limit; and (2) clarify that a Tribal Plan could address “water management” activities.
Procedures for Implementing the ESA 4(d) Limit for Tribal Plans
This final rule recognizes and implements the commitment to government-to-government relations made by the President and the Secretary of Commerce. A tribe intending to exercise a tribal right to fish or undertake other resource management actions that may impact threatened salmonids could create a Tribal Plan that would assure that those actions would not appreciably reduce the likelihood of survival and recovery of the species. The Secretary stands ready to the maximum extent practicable to provide technical assistance to any tribe that so requests in examining impacts on listed salmonids and other salmonids and in the development of Tribal Plans that meet tribal management responsibilities and needs. In making a determination whether a Tribal Plan will appreciably reduce the likelihood
The Chief Counsel for Regulation of the Department of Commerce has certified that this rule would not have a significant economic impact on a substantial number of small entities as described in the Regulatory Flexibility Act. Therefore, a regulatory flexibility analysis is not required. This rule has been determined to be not significant for purposes of Executive Order 12866.
The United States has a unique relationship with tribal governments as set forth in the Constitution, treaties, statutes, and Executive Orders. In keeping with this unique relationship, with the mandates of the Presidential Memorandum on Government to Government Relations With Native American Tribal Governments (59 FR 22951), and with Executive Order 13084, NMFS has developed this final rule in close coordination with tribal governments and organizations. This final rule reflects many of the suggestions brought forth by tribal representatives during that process. NMFS' coordination during development of this tribal rule has included meetings with tribes and tribal organizations, and individual staff-to-staff conversations. Moreover, NMFS will continue to give careful consideration to all tribal comments and will continue its contacts and discussions with interested tribes as this final rule is implemented.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under control number 0648-0399. Public reporting burden per response for this collection of information is estimated to average 20 hours for a tribal plan. This estimate includes the 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 these burden estimates, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
This final rule does not require the preparation of Tribal Plans. For most plans on which tribes request a NMFS determination under this limit, the Bureau of Indian Affairs or another agency, will have performed an NEPA analysis at the time they are developed. In the case of any tribal plan for which NEPA analysis has not been performed by another agency, NMFS will prepare an environmental analysis. Hence, NMFS has determined that this rule will not of its own force result in any changes to the human environment. Any plans determined to come within this limit will be evaluated under NEPA either by NMFS or another federal agency, prior to that determination. Therefore, this rule is categorically excluded from the need to prepare an Environmental Assessment, in accord with NOAA Administrative Order 216-6 (3)(d) and (f).
A list of references cited in this final rule is available upon request (see
Endangered and threatened species, Exports, Fish, Fisheries, Imports, Indians, Intergovernmental relations, Marine mammals, Treaties.
For the reasons set out in the preamble, 50 CFR part 223 is amended as follows:
1. The authority citation for part 223 is revised to read as follows:
16 U.S.C. 1531-1543; subpart B, § 223.12 also issued under 16 U.S.C. 1361
2. Section 223.209 is added to read as follows:
(a)
(b)
(2) Where there exists a Federal court proceeding with continuing jurisdiction over the subject matter of a Tribal Plan, the plan may be developed and implemented within the ongoing Federal Court proceeding. In such circumstances, compliance with the
(3) The Secretary shall seek comment from the public on the Secretary's pending determination whether or not implementation of a Tribal Plan will appreciably reduce the likelihood of survival and recovery of the listed salmonids.
(4) The Secretary shall publish notification in the
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Proposed rule.
This proposed rule is the first stage in HUD's rulemaking process to implement an interim Operating Fund Formula for determining the payment of operating subsidies to public housing agencies (PHAs). As required by statute, this proposed rule was developed through negotiated rulemaking procedures. The policies and procedures described in this proposed rule would govern the determination of funding distributions to PHAs under the Operating Fund until a final rule, reflecting the results of a congressionally requested public housing cost study, is developed and published. Pending the completion of the cost study and the issuance of superseding rules based on the study, HUD will proceed to consider the public comments received on this proposed rule and to issue, in the next stage of this rulemaking process, an interim rule based on this proposed rule and the public comments received on the proposed rule.
Interested persons are invited to submit comments regarding this proposed rule to the Rules Docket Clerk, Room 10276, Office of General Counsel, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410. Comments should refer to the above docket number and title. A copy of each comment submitted will be available for public inspection and copying during regular business hours at the above address. Facsimile (FAX) comments are not acceptable.
Steve Sprague, Funding and Financial Management Division, Office of Public and Indian Housing, Room 4216, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410; telephone (202) 708-1872 (this telephone number is not toll-free). Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
HUD currently uses a formula approach called the Performance Funding System (PFS) to distribute operating subsidies to public housing agencies (PHAs). HUD's regulations implementing the PFS can be found at 24 CFR part 990. Generally, the amount of operating subsidy received by a PHA is the difference between projected expenses and projected income, with the PFS regulations detailing how these projections will be made. PHAs calculate their PFS eligibility annually and submit a request for funding as part of their budget process. While the amount varies, this subsidy represents a substantial amount of revenue to a PHA. For example, in 1999, HUD distributed approximately $2.9 billion in operating subsidies to PHAs.
The United States Housing Act of 1937 (42 U.S.C. 1437
On October 21, 1998, the Congress enacted the Quality Housing and Work Responsibility Act of 1998 (Public Law 105-276, approved October 21, 1998) (referred to as the “Public Housing Reform Act”). The Public Housing Reform Act makes sweeping changes to HUD's public and assisted housing programs. Among other changes, section 519 of the Public Housing Reform Act amended section 9 of the 1937 Act (42 U.S.C. 1437g). Amended section 9 establishes an Operating Fund for the purpose of making assistance available to PHAs for the operation and management of public housing. Section 9(f) of the 1937 Act, as amended by the Public Housing Reform Act, requires that the assistance to be made available from that fund be determined using a formula developed through negotiated rule-making procedures as set forth in subchapter III of chapter 5 of title 5, United States Code (5 U.S.C. 561
Negotiated rulemaking, or “neg-reg,” is a relatively new process for HUD. The basic concept of neg-reg is to have the agency that is considering drafting a rule bring together representatives of affected interests for face-to-face negotiations that are open to the public. The give-and-take of the negotiation process is expected to foster constructive, creative and acceptable solutions to difficult problems.
In anticipation of possible congressional action, HUD entered into an interagency agreement in June 1998 with the Federal Mediation and Conciliation Service (FMCS) for convening and facilitation services associated with a negotiated rulemaking regarding a possible operating fund proposed rule. FMCS submitted its Convening Report in November 1998. The report provided a list of individual PHAs and organizations, representing a wide range of interests, that were willing and able to work within a consensus framework on a new Operating Fund formula.
On February 3, 1999 (64 FR 5570), HUD published a notice announcing its intent to establish a negotiated rulemaking committee for the Operating Fund. This notice identified a list of possible interested individuals and organizations to serve on the negotiated rulemaking committee. The list of possible interested individuals and organizations included PHAs, national organizations representing PHAs, residents organizations, advocates for low-income housing, and other housing experts.
On March 16, 1999 (64 FR 12920), HUD published a notice announcing the establishment of its Negotiated Rulemaking Committee on Operating Fund Allocation (the “Committee”). The notice also provided the list of Committee members and announced its first set of meetings. The members participating in the negotiated rulemaking procedure for the Operating Fund are:
Additionally, two FMCS representatives served as facilitators. The Committee first convened on March 23-24, 1999. Additional Committee meetings were held on April 13-14, May 13-14, June 15-16, July 7-8, September 14-15, November 30-December 2, 1999; February 16-17, 2000; and March 7-8, 2000. All Committee meetings were held in the Washington, DC metro area. The Committee meetings were announced in the
This proposed rule is the product of the Committee's successful negotiations, and reflects the consensus decisions reached over nearly a year's worth of deliberations. The proposed rule is the first stage in the rulemaking process that will establish an Operating Fund formula, to replace the current PFS regulations located in 24 CFR part 990. The rule thus represents a partnership among HUD, the PHAs, public housing residents, and advocates of public housing. The policies and procedures described in this proposed rule would govern the determination of funding distributions to PHAs under the Interim Operating Fund Formula until a final rule, reflecting the results of a Congressionally requested public housing cost study, is developed and published (see Section XIII. of this preamble for further information regarding the cost study).
It became apparent to the Committee during its deliberations that sufficient data were not available to either establish the true costs of operating public housing or to develop final modifications to the existing PFS regulations without an unacceptable degree of unpredictability. The Committee determined, therefore, to recommend that a comprehensive cost study be undertaken to provide data and recommendations necessary for finalizing an Operating Fund Formula. A consensus also became apparent that, pending the results of the housing cost study, there exist urgent needs and tangible benefits from implementing the proposed Interim Operating Fund Formula. Accordingly, the Interim Operating Fund Formula that would be established by this proposed rule is largely based on the policies and procedures that have heretofore governed the PFS. The Committee has decided to recommend several important modifications to the existing PFS regulations. These modifications would address, to the extent feasible under data presently available to the public, five specific proposals considered important by members of the Committee.
The proposed rule would: (1) Modify the method by which “small PHAs” are funded in order to assure an adequate minimum level funding, based on nationally averaged operating costs for multifamily housing projects insured by the Federal Housing Administration (FHA), adjusted for unit size differences and locational cost differences; (2) implement statutory changes permitting PHAs to retain certain rental and non-rental income without offset against operating subsidy; (3) retain the current method of estimating utility expenses, but would eliminate year-end adjustments, for the costs of utilities, reflecting the adjustments instead, in the PHA's operating subsidy calculation for the second PHA fiscal year following the year being adjusted, and in order to encourage energy efficiency, it would replace the current 50-50 split of savings or increase in cost due to changes in utilities consumption to a 75-25 split between PHAs and HUD, respectively; (4) require each PHA to include in its operating subsidy calculation, $25 per occupied unit per year for resident participation activities as an add on expense component for subsidy eligibility; and (5) include flood insurance costs in the computation of the Allowable Expense Level (AEL) by permitting a one-time permanent adjustment to reflect this cost. The proposed rule would also make several clarifying and technical changes to the PFS regulations and would remove several obsolete provisions.
The most significant amendments made by this proposed rule to the current part 990 regulations are described in the following sections of this preamble. For the convenience of readers, this proposed rule republishes the text of subpart A of the part 990 regulations in its entirety. Except for the changes identified in this preamble, no additional revisions would be made to 24 CFR part 990.
The proposed rule would modify how non-utility Allowable Expense Levels (AELs) are calculated. AELs were initially set in 1975 for most PHAs and have subsequently been updated only for inflation. In 1992, PHAs with AELs that fell significantly below a statistical regression-based formula were allowed to receive increases up to 85% of the formula value. Many of those familiar with public housing have argued that the original AEL determinations had the effect of freezing into place whatever funding inequities then existed, and that the 1992 revisions did little to correct this problem because the formula was based on an analysis of the existing distribution of AELs. The most common concerns relate to small PHAs.
The Committee sought a proxy measure of the adequacy of small PHA funding; one not based upon public housing operating expense data since such data fails to provide an objective measure as to whether small PHA funding is adequate, inadequate, or excessive. The most readily accessible proxy information comes from HUD's Real Estate Management data system. This data system contains detailed time-series financial statements and project
In reviewing applications for multifamily housing insurance, FHA requires that an applicant submit detailed budget estimates that demonstrate that the proposed project is financially feasible. Operating expense levels are normally required to be close to industry norms for similar projects in the area. This is done to reduce FHA's insurance risk—under-estimating operating expenses increases the risk that a project will go into default. Available data suggest that there is limited variability in normal operating expense levels for similar projects in similar locations.
The Committee adopted an approach that used a national FHA-based operating cost average (referred to as the “FHAEL”) for a two-bedroom public housing unit based on line-item expenses for non-utility operating costs that excluded property taxes. This figure was then used to calculate a PHA-specific equivalent factor by adjusting for average unit size differences and for locational cost differences. The unit size differential was calculated using Fair Market Rent (FMR) cost relationships (
The FHA operating cost data used in the comparisons of FHA and public housing operating costs consisted of all FHA multifamily insured or subsidized projects for which audited operating expense data for fiscal year (FY) 1996 were available. Data for 1996 were selected because they had been extensively tested and used for other purposes (
In practice, it was found that the AEL/FHA cost ratio was 101% for the public housing program as a whole, but that many small PHAs had AELs significantly below estimated FHA-based operating cost averages. Conceptually, there is no reason to expect a PHA to be able to provide maintenance levels typical of private market projects with significantly less funding. Therefore, this proposed rule would establish a one-time adjustment to AELs for certain PHAs with less than 500 units.
AELs for small PHAs would be set at the higher of a small PHA's current AEL or 70% of the FHAEL, and the AEL would be increased to the higher of their current AEL or 85% of the FHAEL for PHAs under 250 units. The cost of these increases would be achieved by reducing the AELs of PHAs with more than 500 units. The proposed rule would provide an exception to this determination for small PHAs with AELs that are greater than 120% of the FHAEL, in which case the small PHAs will use an AEL equivalent to 120% of the FHAEL.
PHAs with more than 500 units and AELs in excess of 85% of their FHAEL will use 98.64% of the FY 2000 AEL (which represents a 1.36% reduction in the FY 2000 AEL value) for purposes of calculating their FY 2001 subsidy determinations. This reduction offsets the cost of establishing minimum AELs for PHAs with less than 250 units at 85% of the value of the FHAEL, and of establishing minimum AELs for PHAs with 250-499 units at 70% of their FHAEL values.
As noted above, the amount of operating subsidy received by a PHA is generally calculated by determining the difference between projected expenses and projected income. Projected income is categorized as being either dwelling rental income, investment income, or “other income.” This proposed rule would revise the definition of other income (for purposes of calculating subsidy) to only include income from: (1) Rents billed for dwelling units rented for non-dwelling purposes; and (2) charges to residents for excess utility consumption of PHA supplied utilities.
Under the proposed definition, investment income would not be used to determine operating subsidy eligibility. Accordingly, the proposed rule would make a conforming amendment to § 990.109, which governs the calculation of projected operating income levels. Specifically, the proposed rule would remove paragraph (e)(1) of that section, which regards a PHA's estimate of investment income for purposes of the operating subsidy calculation. The proposed rule would also remove the provisions dealing with adjustments for investment income located at § 990.110(b). This regulatory change would codify HUD's revised policy regarding the treatment of non-rental income for FY 2000 and beyond, which was announced through an earlier issued Public and Indian Housing (PIH) Notice 2000-04 (HA), issued on February 3, 2000.
The proposed rule would amend § 990.109 to revise the method for calculating projected monthly dwelling rental income. Under the proposed rule, a PHA would determine its average monthly dwelling charge for the month that is six months before the start of its budget year (the “current year average”) as well as the average monthly charge for the comparable month of its two previous years. An average would be computed for these three amounts (the “three year average”) and compared with the current year average.
If the current year average is not higher than the three year average, rental income has not increased and the current year average will be used to calculate projected rental income.
If the current year average is higher than the three year average, the PHA shall be allowed to retain 50% of any increases in dwelling rental income, so long as the PHA uses the increased revenue for the provision of resident-related improvements and services as described in new § 990.116 (see Section V.C. of this preamble below). The retained income will not be recognized in the PHA's calculation under the Interim Operating Fund Formula. The projected dwelling rental income for PHAs with increased rental income will be based on the three year average plus 50% of the increase.
A change factor of 3% will then be applied. HUD intends to revise the 3% adjustment factor, for the duration of the interim rule, beginning in FY 2002, to more accurately reflect the inflationary pressure on the projection of monthly dwelling rental income. In determining such a factor for FY 2002, HUD will also take into consideration any negative impacts on incentives for PHAs to increase resident earned income, relevant and available indices of rental income inflation, historical trends in rental income changes, and the proportion and amount of increased
The PHA must adjust the rent rolls used for purposes of these calculations to reflect any change from PHA-paid utilities to resident-paid utilities, or vice versa, between the rent roll date and the projected budget year.
The proposed rule would replace the current § 990.116 (which concerns three year incentive adjustments) with a new section concerning the eligible uses of increases in dwelling rental income, as calculated under § 990.109 (see Section V.B. of this preamble above). The uses of the retained income must be described in the PHA's Plan submissions under 24 CFR part 903. The uses for the retained income must be developed with front end resident participation and ongoing input, and shall be made part of the PHA Plan submission. The proposed rule provides several examples of eligible uses for the retained income, including, but not limited to:
1. Physical and management improvements that benefit residents;
2. Resident self-sufficiency services;
3. Maintenance operations;
4. Resident employment and training services;
5. Resident safety and security improvements and services; and
6. Optional earned income exclusions.
After consideration of various options for the treatment of utilities, the Committee decided to retain the current methodology for estimating utility expenses (located in § 990.107). However, the proposed rule would make several changes to the regulations concerning utility adjustments (located in § 990.110).
First, the proposed rule would eliminate the so-called “year-end adjustments.” Under the current PFS regulations, a PHA must conduct a comparison of the differences between the actual costs and consumption of utilities during the immediate preceding year with the estimates used to determine the allowable utilities expense level for that year. The comparison of actual and estimated utility costs is to be reported to HUD within 45 days after the end of a PHA's fiscal year. Under the proposed rule, a PHA will continue to report its comparison of actual and estimated utility costs within 45 days after the end of the PHA's fiscal year. The adjustment would normally be made in the operating subsidy calculation for the second PHA fiscal year following the year being adjusted. These adjustments would be applicable to PHA fiscal years beginning on or after January 1, 1999.
In order to strengthen the regulatory incentives to conserve energy, the current “50-50” sharing of additional costs or savings resulting from changes in consumption levels would be revised to a “75-25” split. Under the proposed rule, if actual consumption levels are lower than estimated, PHAs would retain 75% of the savings resulting from decreased consumption. The remaining 25% of the savings would be deducted by HUD when determining future subsidy eligibility. Conversely, if actual consumption levels are higher than anticipated, HUD would allow 25% of the resulting cost. The remaining 75% of the increased consumption cost would be absorbed by the PHA.
The risks associated with utility rates increasing after the estimate of utility costs has been approved will continue to be absorbed by HUD. In return, savings in utility costs due to decreases in rates that occur after the estimate of utility costs has been approved will accrue to HUD.
By permitting PHAs to retain a greater share of the savings from decreased utilities consumption, the Committee expects to encourage energy conservation. PHAs are urged to implement policies and procedures that foster conservation and to reduce energy costs. The savings resulting from such cost reductions can more appropriately be used to improve existing living conditions in public housing. The Committee strongly recommends that energy conservation become a central component of each PHA's Annual and Five Year Plans.
In its development of the proposed rule, the Committee discussed at substantial length the importance of resident participation to the success of public housing, including the Interim Operating Fund formula. The Committee noted that the Public Housing Reform Act places value on resident participation by requiring, with certain exceptions, at least one resident on the PHA Board of Commissioners, resident involvement in the PHA Plan process (through Resident Advisory Boards) and additional involvement as reflected in HUD's resident participation regulations (24 CFR part 964). Accordingly, the proposed rule would require each PHA to include, in its operating subsidy eligibility calculation, $25 per occupied unit per year for resident participation activities. These activities include (but are not limited to) those described in 24 CFR part 964. For purposes of this section, a unit may be occupied by a public housing resident, a PHA employee, or a police officer.
The proposed rule would also authorize HUD to approve the use of vacant rental units for resident participation purposes and allow PHAs to receive subsidy support for those units. HUD will approve the use of vacant units for such purposes only if the PHA can demonstrate that safe and suitable space for the resident participation activities is not otherwise readily available. Only one site per public housing development, involving one or more contiguous units, may be used for resident participation activities. Further, the number of units must be the minimum necessary to support the resident participation activities. Any rental income generated as a result of the activity must be reported as income in the operating subsidy calculation.
HUD is also taking various steps to promote resident involvement in creating and maintaining a positive living environment. For example, HUD is developing a proposed rule that will revise the part 964 regulations in their entirety. HUD is committed to developing this proposed rule with the active participation of public housing residents. HUD will solicit resident input through the scheduling of public forums, solicitations for written comments, and/or other appropriate means. HUD's goal in undertaking this rulemaking is to develop a set of easy-to-understand regulations that reflect the meaningful contributions of public housing residents. Accordingly, the proposed rule will not only implement statutory amendments made by the Public Housing Reform Act, but will also streamline and reorganize 24 CFR part 964 to simplify and improve the clarity of HUD's resident participation requirements.
HUD is taking several other steps to increase resident participation in public housing. For example, HUD will conduct training for resident organizations and PHAs on the Public Housing Reform Act.
To simplify the calculation of operating subsidy, this proposed rule
In addition to the changes discussed above, this proposed rule would make several clarifying and technical changes to part 990. For example, the proposed rule would replace all outdated reference to the PFS with references to the Interim Operating Fund Formula. The proposed rule would also remove several obsolete provisions, which continue to be unnecessarily codified. HUD has also taken this opportunity to re-format or clarify certain other provisions. These proposed changes are not substantive, and do not alter or modify existing requirements. Rather, these changes are designed to make the part 990 regulations easier to comprehend.
Amended section 9 of the 1937 Act requires that “the treatment of utility and waste management costs under the [Operating Fund] formula shall provide that a public housing agency shall receive the full financial benefit from any reduction in the cost of utilities or waste management resulting from any contract with a third party to undertake energy conservation improvements in one or more of its public housing projects” (42 U.S.C. 1437g(e)(2)(C)).
The proposed rule would address this statutory requirement by retaining the current PFS provisions at § 990.107(f), which describes PHA incentives for non-HUD financed energy conservation improvements. Under this provision, a PHA, whose energy conservation measures have been approved by HUD as satisfying certain regulatory requirements, may retain 100% of the savings from decreased energy consumption after payment of the amount due the contractor until the term of the financing agreement is completed.
With regard to waste management, these costs are treated as a maintenance expense (not a utilities expense) under the PFS and this proposed rule. The Allowable Expense Level (AEL) covers non-utility costs and is not adjusted when costs are reduced. Should a PHA be able to reduce its waste management costs below the amount assumed in its AEL, the PHA would retain all of the savings. This is true under the existing PFS, and would continue to apply under this proposed rule.
Moving To Work (MTW) PHAs will continue to be funded under the provisions of their existing MTW agreements. These agreements may be renegotiated in view of the new Interim Operating Fund Formula, as requested by MTW PHAs and as agreed to by HUD. If MTW PHAs choose to be included under the new Interim Operating Fund Formula, then both the redistribution and funding benefits will apply. (See § 990.104(d) of this proposed rule.)
This proposed rule would revise § 990.103 (which concerns the applicability of the Interim Operating Fund Formula) to provide that the amendments described in sections IV. through X. of this preamble would be applicable to housing owned by the PHAs of the Virgin Islands, Puerto Rico, Guam and Alaska (the “non-PFS PHAs”). Otherwise, the Interim Operating Fund Formula would not be applicable to these PHAs. Operating subsidy payments to these PHAs would continue to be made in accordance with subpart B of 24 CFR part 990. The non-PFS PHAs would not be subject to the AEL reductions necessary to offset the cost of establishing minimum AELs for small PHAs (see Section IV. of this preamble).
The Conference Report to the FY 2000 HUD Appropriations Act (Public Law 106-74, approved October 20, 1999) states, in part, that “. . . before a proposed rule is published in the
HUD has contracted for the study. HUD has also directed Harvard, as the cost-study contractor, to provide public opportunities (such as periodic forums, status reports, and other means) for interested persons and organizations to be informed of the study's research design, methodologies, and progress, and to provide input and feedback for consideration in the development of the study. Harvard, as the contractor for the cost study, will consult with interested individuals and organizations in developing the cost study findings and recommendations.
During the period that the cost study is underway, HUD will proceed to consider the public comments received on this proposed rule and to issue an interim rule based on this proposed rule and the public comments received on the proposed rule. As part of the rulemaking process, HUD will submit the rule to the Office of Management and Budget (OMB) for review and clearance (as required under Executive Order 12866), and to HUD's Congressional committees for 15-day pre-publication review (as required under section 7(o) of the Department of Housing and Urban Development Act (42 U.S.C. 3531
Following and based upon the findings and recommendations of the completed cost study and the Public Housing Reform Act, HUD will develop the additional rulemaking to finalize the Operating Fund Formula, using the procedures of the Negotiated Rulemaking Act of 1990, subject to compliance with applicable legal requirements prerequisite to the establishment of a negotiated rulemaking committee for such purposes and to the appropriate approvals of any proposed or final rule as referenced in Section XII of this preamble above.
It is the general practice of the Department to provide a 60-day public comment period on all proposed rules. The Department, however, is reducing its usual 60-day public comment period to 30 days for this proposed rule. In an effort to have an interim Operating Fund Formula in place as close to beginning of FY 2001, and given that the formula was developed through the negotiated rulemaking process, in which representatives of all affected parties participated, the Department believes that a 30-day public comment period is justified under these circumstances.
The information collection requirements contained in 24 CFR part 990 have been approved by the Office of Management (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). While this proposed rule would make several modifications to the existing regulatory requirements (described above), the rule would not increase the total reporting and recordkeeping burden related to the payment of operating subsidies to PHAs. The information collection requirements contained in §§ 990.104, 990.105, 990.107, 990.108, 990.110, 990.111, and 990.117 of this proposed rule correspond to information collections contained in HUD's current part 990 regulations. These information collection requirements have been assigned OMB control numbers 2577-0029 (expiration date May 31, 2001), 2577-0026 (expiration date June 30, 2001), and 2577-0066 (expiration date September 30, 2002). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4223). The Finding of No Significant Impact is available for public inspection between the hours of 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC.
The Office of Management and Budget has reviewed this proposed rule under Executive Order 12866 (captioned “Regulatory Planning and Review”) and determined that this rule is a “significant regulatory action” as defined in section 3(f) of the Order. Any changes made to this rule as a result of that review are identified in the docket file, which is available for public inspection during regular business hours (7:30 a.m. to 5:30 p.m.) at the Office of the General Counsel, Rules Docket Clerk, Room 10276, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410.
The Secretary has reviewed this proposed rule before publication and by approving it certifies, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would implement a new system for formula allocation of funds to PHAs for their operating needs. The new system is established to provide minimum impact on all PHAs, small and large. Accordingly, the formula will not have a significant economic impact on any PHA. Notwithstanding HUD's determination that this proposed rule would not have a significant economic impact on small entities, HUD specifically invites comments regarding alternatives to this proposed rule that would meet HUD's objectives as described in this preamble.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and on the private sector. This proposed rule does not impose, within the meaning of the UMRA, any Federal mandates on any State, local, or tribal governments or on the private sector.
The Catalog of Federal Domestic Assistance Number for this program is 14.850.
Grant programs—housing and community development, Public housing, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, HUD proposes to amend 24 CFR part 990 as follows:
1. Revise the heading of part 990 to read as set forth above.
2. The authority citation for part 990 is revised to read as follows:
42 U.S.C. 1437g and 3535(d).
3. Subpart A is revised to read as follows:
This subpart implements section 9(f) of the United States Housing Act of 1937 (42 U.S.C. 1437g) (referred to as “the 1937 Act”). Section 9(f) establishes an Operating Fund for the purposes of making assistance available to public housing agencies (PHAs) for the operation and management of public housing. The assistance made available from the Operating Fund is determined using a formula developed through negotiated rulemaking procedures. This subpart describes the policies and procedures for operating subsidy calculations under the Operating Fund Formula.
(1) If the nondwelling unit has been approved for subsidy (e.g., the unit is being used for economic self-sufficiency services or anti-drug activities) at the rate of the PHA's AEL, the PHA will include all charges as nondwelling rent;
(2) If the nondwelling unit has not been approved for subsidy, a PHA will include as nondwelling rent only that portion of the charge that exceeds the rate of the PHA's AEL.
(2) A nondwelling structure or a dwelling unit used for nondwelling purposes which the PHA has determined will no longer be used for PHA purposes and which HUD has approved for removal from the PHA's inventory and Annual Contributions Contract.
(1) The unit has been vacant for more than 12 months at the time the PHA determines its Actual Occupancy Percentage;
(2) The unit is not either:
(i) A vacant unit undergoing modernization; or
(ii) A unit vacant for circumstances and actions beyond the PHA's control, as these terms are defined in this section; and
(3) The PHA determines that it will have a vacancy percentage of more than 3% and will have more than five vacant units, for its Requested Budget Year, even after adjusting for vacant units undergoing modernization and units that are vacant for circumstances and actions beyond the PHA's control, as defined in this section. (Reference in this part to “more than five units” or “fewer than five units” shall refer to a circumstance in which five units equals or exceeds 3% of the number of units to which the 3% threshold is applicable.)
(1) Litigation. The effect of court litigation such as a court order or settlement agreement that is legally enforceable. An example would be units that are being held vacant as part of a court-ordered or HUD-approved desegregation plan.
(2) Laws. Federal or State laws of general applicability, or their implementing regulations. Units vacant
(3) Changing market conditions. For example, small PHAs that are located in areas experiencing population loss or economic dislocations may face a lack of demand in the foreseeable future, even after the PHA has taken aggressive marketing and outreach measures.
(4) Natural disasters.
(5) RMC Funding. The failure of a PHA to fund an otherwise approvable RMC request for Federal modernization funding.
(6) Casualty Losses. Delays in repairing damage to vacant units due to the time needed for settlement of insurance claims.
(1) The unit is under construction (.e., the construction contract has been awarded or force account work has started); or
(2) The treatment of the vacant unit is included in a HUD-approved modernization budget (or its successor under the public housing Capital Fund program), but the time period for placing the vacant unit under construction has not yet expired. The PHA must place the vacant unit under construction within two Federal Fiscal Years (FFYs) after the FFY in which the modernization funds are approved.
(a)
(b)
(c)
(d)
(i) The definition of “other income” at § 990.102;
(ii) Section 990.105 (Computation of allowable expense level). However, § 990.105(e) (Computation of FHA-based operating expense level for application in FY 2001) does not apply to these PHAs;
(iii) Section 990.105(f) (Flood insurance adjustment for FY 2001);
(iv) Section 990.108(e) (Funding for resident participation activities);
(v) Section 990.109(b) (Computation of projected average monthly dwelling rental income);
(vi) Section 990.110(b) (Adjustments to utilities expense level); and
(vii) Section 990.116 (Increases in dwelling rental income).
(2) With the exception of the provisions listed in paragraph (d)(1) of this section, the Operating Fund Formula is not applicable to the PHAs of the Virgin Islands, Puerto Rico, Guam and Alaska. Operating subsidy payments to these PHAs are made in accordance with subpart B of this part.
(e)
(a) The amount of operating subsidy for which each PHA is eligible shall be determined as follows: The Projected Operating Income Level is subtracted from the total expense level (Allowable Expense Level plus Utilities Expense Level). These amounts are per unit per month dollar amounts, and must be multiplied by the Unit Months Available. Transition Funding, if applicable, and other costs as specified in § 990.108 are then added to this total in order to determine the total amount of operating subsidy for the Requested Budget Year, exclusive of consideration of the cost of an independent audit. As an independent operating subsidy eligibility factor, a PHA may receive operating subsidy in an amount, approved by HUD, equal to the actual cost of an independent audit to be prorated to operations of the PHA-owned rental housing. See § 990.110 regarding adjustments.
(b) In the case of a PHA development involving the acquisition of scattered site housing, the PHA may submit, and HUD shall review and approve, a revised Development Cost Budget (or its successor under the public housing Capital Fund program) reflecting the number of units that were occupied during the previous six months, and the Unit Months Available used in the calculation of operating subsidy eligibility shall be revised to include the number of months the new/acquired units are actually occupied.
(c) A special phase-down of subsidy to PHAs is applicable when demolition of units is approved by HUD. See § 990.114.
(d) The calculation of operating subsidy for a PHA in the Moving to Work demonstration program shall be made in accordance with the applicable Moving to Work Agreement, and any amendments to such agreements, as may be approved by HUD.
The PHA shall compute its Allowable Expense Level using forms prescribed by HUD, as follows:
(a)
(1) Utilities expense;
(2) Cost of an independent audit;
(3) Adjustments applicable to budget years before the Base Year;
(4) Expenditures supported by supplemental subsidy payments
(5) All other expenditures which are not normal fiscal year expenditures as to amount or as to the purpose for which expended; and
(6) Expenditures which were funded from a nonrecurring source of income.
(b)
(c)
(1) The number of pre-1940 rental units occupied by poor households in 1980 as a percentage of the 1980 population of the community multiplied by a weight of 7.954. This census-based statistic applies to the county of the PHA, except that, if the PHA has 80% or more of its units in an incorporated city of more than 10,000 persons, it uses city-specific data. County data will exclude data for any incorporated cities of more than 10,000 persons within its boundaries.
(2) The Local Government Wage Rate multiplied by a weight of 116.496. The wage rate used is a figure determined by the Bureau of Labor Statistics. It is a county-based statistic, calibrated to a unit-weighted PHA standard of 1.0. For multi-county PHAs, the local government wage is unit-weighted. For this formula, the local government wage index for a specific county cannot be less than 85% or more than 115% of the average local government wage for counties of comparable population and metro/non-metro status, on a state-by-state basis. In addition, for counties of more than 150,000 population in 1980, the local government wage cannot be less than 85% or more than 115% of the wage index of private employment determined by the Bureau of Labor Statistics and the rehabilitation cost index of labor and materials determined by the R.S. Means Construction Cost Index.
(3) The lesser of the current number of the PHA's two or more bedroom units available for occupancy, or 15,000 units, multiplied by a weight of .002896.
(4) The current ratio of the number of the PHA's two or more bedroom units available for occupancy in high-rise family projects to the number of all the PHA's units available for occupancy multiplied by a weight of 37.294. For this indicator, a high-rise family project is defined as averaging 1.5 or more bedrooms per unit available for occupancy and averaging 35 or more units available for occupancy per building and containing at least one building with units available for occupancy that is 5 or more stories high.
(5) The current ratio of the number of the PHA's three or more bedroom units available for occupancy to the number of all the PHA's units available for occupancy multiplied by a weight of 22.303.
(6) An equation calibration constant of −.2344.
(d)
(1)
(i) Any increase approved by HUD in accordance with § 990.110;
(ii) The increase (decrease) between the Formula Expense Level for the Base Year and the Formula Expense Level for the first budget year of operating subsidy under this part; and
(iii) The sum of the Base Year Expense Level, and any amounts described in paragraphs (d)(1) (i) and (ii) of this section multiplied by the Local Inflation Factor.
(2)
(i) The increase (decrease) between the Formula Expense Level for the Base Year and the Formula Expense Level for the first budget year of operating subsidy under this part;
(ii) The sum of the figure equal to the top of the range and the increase (decrease) described in paragraph (d)(2)(i) of this section, multiplied by the Local Inflation Factor. (If the Base Year Expense Level is above the AEL, computed as provided above, the PHA may be eligible for Transition Funding under § 990.106.)
(3)
(4)
(5)
(i) The AEL shall be increased by any increase to the AEL approved by HUD under § 990.108(c).
(ii) The AEL for the Current Budget Year also shall be adjusted as follows:
(A) Increased by one-half of one percent (.5%); and
(B) If the PHA has experienced a change in the number of units in excess of 5% or 1,000 units, whichever is less, since the last adjustment to the AEL based on this paragraph, it shall use the increase (decrease) between the Formula Expense Level calculated using the PHA's characteristics that applied to the Requested Year when the last adjustment to the AEL was made based
(iii) The amount computed in accordance with paragraphs (d)(5)(i) and (ii) of this section shall be multiplied by the Local Inflation Factor.
(6)
(e)
(i)
(ii)
(iii)
(iv)
(2)
(i)
(ii)
(iii)
(3)
(i)
(B)
(ii)
(iii)
(iv)
(v)
(4)
(i)
(B)
(ii)
(iii)
(iv)
(v)
(vi)
(f)
(1)
(2)
(3)
(a)
(b)
(2) If a PHA takes action, such as wellhead purchase of natural gas, or administrative appeals or legal action beyond normal public participation in rate-making proceedings to reduce the rate it pays for utilities (including water, fuel oil, electricity, and gas), then the PHA will be permitted to retain one-half of the cost savings during the first 12 months attributable to its actions. Upon determination that the action was cost-effective in the first year, the PHA may be permitted to retain one-half the annual cost savings, if the actions continue to be cost-effective. See also paragraph (e) of this section and § 990.110(b).
(c)
(1)
(ii) An example of a rolling base is as follows:
(2)
(ii) In those cases where a PHA has not maintained or cannot recapture consumption data for a utility for the entire Rolling Base Period, comparable consumption for the greatest of either 36, 24, or 12 months, as needed, shall be used for the utility for which the data is lacking. The comparable consumption shall be estimated based upon the consumption experienced during the Rolling Base Period of comparable project(s) with comparable utility delivery systems and occupancy. The use of actual and comparable consumption by each PHA, other than those PHAs defined as New Projects in paragraph (c)(3) of this section, will be determined by the availability of complete data for the entire 36-month Rolling Base Period. Appropriate utility consumption records, satisfactory to HUD, shall be developed and maintained by all PHAs so that a 36-month rolling average utility consumption per unit per month under paragraph (c)(1) of this section can be determined.
(iii) If a PHA cannot develop the consumption data for the Rolling Base Period or for 12 or 24 months of the
(3)
(A) A project which had not been in operation during at least 12 months of the Rolling Base Period, or a project which enters management after the Rolling Base Period and prior to the end of the Requested Budget Year; or
(B) A project which during or after the Rolling Base Period, has experienced conversion from one energy source to another; interruptable service; deprogrammed units; a switch from resident-purchased to PHA-supplied utilities; or a switch from PHA-supplied to resident-purchased utilities.
(ii) The actual consumption for New Projects shall be determined so as not to distort the Rolling Base Period in accordance with a method prescribed by HUD.
(4)
(ii) If the AUCL is frozen during the contract period, the annual three-year rolling base procedures for computing the AUCL shall be reactivated after the PHA satisfies the conditions of the contract. The three years of consumption data to be used in calculating the AUCL after the end of the contract period will be as follows:
(A)
(B)
(C)
(d)
(e)
(f)
(1) If the contract allows the PHA's payments to be dependent on the cost savings it realizes, the PHA must use at least 50% of the cost savings to pay the contractor. With this type of contract, the PHA may take advantage of a frozen AUCL under paragraph (c)(4) of this section, and it may use the full amount of the cost savings, as described in § 990.110(b)(2)(ii).
(2) If the contract does not allow the PHA's payments to be dependent on the cost savings it realizes, then the AUCL will continue to be calculated in accordance with paragraphs (c)(1) through (c)(3) of this section, as appropriate; the PHA will be able to retain part of the cost savings, in accordance with § 990.110(b)(2)(i); and the PHA will qualify for additional operating subsidy eligibility (above the amount based on the allowable expense level) to cover the cost of amortizing the cost of the energy conservation measures during the term of the contract, in accordance with § 990.110(c).
(a)
(2) A PHA that is required by the Single Audit Act (31 U.S.C. 7501-7507) (see 24 CFR part 85) to conduct a regular independent audit may receive operating subsidy to cover the cost of the audit. The actual cost of an independent audit, applicable to the operations of PHA-owned rental housing, is not included in the Allowable Expense Level, but it is allowed in full in computing the amount of operating subsidy under § 990.104, above.
(3) A PHA that is exempt from the audit requirements under the Single Audit Act (24 CFR part 85) may receive operating subsidy to offset the actual cost of an independent audit chargeable to operations (after the End of the Initial Operating Period) if the PHA chooses to have an audit.
(b)(1) Costs attributable to units that are approved for deprogramming and vacant may be eligible for inclusion, but must be limited to the minimum services and protection necessary to protect and preserve the units until the units are deprogrammed. Costs attributable to units temporarily unavailable for occupancy because the units are utilized for PHA-related activities are not eligible for inclusion.
(2) Units approved for nondwelling use to promote economic self-sufficiency services and anti-drug activities are eligible for operating subsidy under the conditions provided in this paragraph (b)(2), and the costs attributable to these units are to be included in the operating budget. If a unit satisfies the conditions stated below, it will be eligible for subsidy at the rate of the AEL for the number of months the unit is devoted to such use. Approval will be given for a period of no more than 3 years. HUD may renew the approval to allow payments after that period only if the PHA can demonstrate that no other sources for paying the non-utility operating costs of the unit are available. The conditions the unit must satisfy are:
(i) The unit must be used for either economic self-sufficiency activities directly related to maximizing the number of employed residents or for anti-drug programs directly related to ridding the development of illegal drugs and drug-related crime. The activities must be directed toward and for the benefit of residents of the development.
(ii) The PHA must demonstrate that space for the service or program is not available elsewhere in the locality and that the space used is safe and suitable for its intended use or that the resources are committed to make the space safe and suitable.
(iii) The PHA must demonstrate satisfactorily that other funding is not available to pay for the non-utility operating costs. All rental income generated as a result of the activity must be reported as income in the operating subsidy calculation.
(iv) Operating subsidy may be approved for only one site (involving one or more contiguous units) per public housing development for economic self-sufficiency services or anti-drug programs, and the number of units involved should be the minimum necessary to support the service or program. Operating subsidy for any additional sites per development can only be approved by HUD Headquarters.
(v) The PHA must submit a certification with its Operating Fund Formula Calculation that the units are being used for the purpose for which they were approved and that any rental income generated as a result of the activity is reported as income in the operating subsidy calculation. The PHA must maintain specific documentation of the units covered. Such documentation should include a listing of the units, the street addresses, and project/management control numbers.
(3) Long-term vacant units that are not included in the calculation of Unit Months Available are eligible for operating subsidy in the Requested Budget Year at the rate of 20% of the AEL. Allowable utility costs for long term vacant units will continue to be funded in accordance with § 990.107.
(c)
(d)(1)
(2) An exception to paragraph (d)(1) of this section is made when a PHA combines two efficiency units into a one-bedroom unit. In these cases, the AEL for the requested year shall be multiplied by the number of unit months not included in the requested year's unit months available as a result of these combinations that have occurred since the Base Year.
(e)
(2)
(i) The PHA must demonstrate that safe and suitable space for the resident participation activities is not otherwise readily available;
(ii) One or more contiguous units may be used for resident participation activities. However, the units must be located on a single site per public housing development. Further, the number of units involved must be the minimum necessary to support the resident participation activities;
(iii) The PHA must submit a certification with its Operating Fund Formula calculation that the units are being used for the purpose for which they were approved and that any rental income generated as a result of the activity is reported as income in the operating subsidy calculation; and
(iv) The PHA must maintain specific documentation of the units covered. Such documentation must include a listing of the units, the street addresses, and project/management control numbers.
(a)
(b)
(i)
(A) The average monthly dwelling rental charge per unit for the current budget year (the “current year average” calculated in accordance with paragraph (b)(2) of this section); and
(B) The average monthly dwelling rental charge per unit for the current budget year and the immediate past two budget years (the “three year average” calculated in accordance with paragraph (b)(3) of this section).
(ii)
(A) Subtract the three year average from the current year average;
(B) Divide the result by 2; and
(C) Add this sum to the three year average.
(iii)
(iv)
(2)
(ii) This aggregate dollar amount shall be divided by the number of occupied dwelling units as of the same date.
(iii) The Rent Roll used for calculating the projected operating income level will not reflect decreases resulting from the PHA's implementation of an optional earned income exclusion authorized by the explanation of “annual income” in 24 CFR 5.609.
(3)
(4)
(5)
(6)
(i)
(ii)
(iii)
(A)
(B)
(iv)
(A) Long-term vacancies removed from the calculation of UMAs will be eligible to receive a reduced operating subsidy calculated at 20% of the PHA's AEL.
(B) If the recalculated RBY Occupancy Percentage is 97% or higher, the PHA will use 97%.
(C) If the recalculated RBY Occupancy Percentage is less than 97%, but the vacancy rate after adjusting for vacant units undergoing modernization and units that are vacant due to circumstances and actions beyond the PHA's control is 3% or less (or the PHA has five or fewer vacant units), the PHA may use its recalculated RBY
(D) If the recalculated RBY Occupancy Percentage is less than 97% and the vacancy percentage is greater than 3% (or the PHA has more than five vacant units) after adjusting for vacant units undergoing modernization and units that are vacant due to circumstances and actions beyond the PHA's control, the PHA will use 97% as its projected occupancy percentage, but will be allowed to adjust the 97% by the number of vacant units undergoing modernization and units that are vacant due to circumstances and actions beyond the PHA's control. For a small PHA using five vacant units as its occupancy objective for the RBY, the PHA will determine what percentage five units represents as a portion of its units available for occupancy and subtract that percentage from 100%. The result will be used as the PHA's projected occupancy percentage, but the PHA will be allowed to adjust the projected occupancy percentage by vacant units undergoing modernization and units that are vacant for circumstances and actions beyond the PHA's control.
(c)
(1) If the PHA has another Project or Projects under management which are comparable in terms of elderly and nonelderly resident composition, the PHA shall use the projected average monthly dwelling rental charge for such Project or Projects.
(2) If the PHA has no other Projects which are comparable in terms of elderly and nonelderly resident composition, the HUD Field Office will provide the projected average monthly dwelling rental charge for such Project or Projects, based on comparable Projects located in the area.
(d)
(e)
(f)
Adjustment information submitted to HUD under this section must be accompanied by an original or revised calculation of operating subsidy eligibility.
(a)
(2)
(b)
(1)
(2) C
(ii) However, in the case of a PHA whose energy conservation measures have been approved by HUD as satisfying the requirements of § 990.107(f)(1) (regarding non-HUD financed incentives for energy conservation improvements), the PHA operating fund eligibility shall reflect the retention of 100% of the savings from decreased consumption after payment of the amount due the contractor until the term of the financing agreement is completed. The decreased consumption is to be determined by adjusting for any utility rate changes and may be adjusted, subject to HUD approval, using a heating degree day adjustment for space heating utilities. The savings realized must be applied in the following order:
(A) Retention of up to 50% of the total savings from decreased consumption to cover training of PHA employees, counseling of residents, PHA management of the cost reduction program and any other eligible costs; and
(B) Prepayment of the amount due the contractor under the contract.
(iii) 25% of an increase in the Utilities Expense Level attributable to increased consumption, after adjustment for any utility rate change, will be reflected in the operating subsidy eligibility for the second PHA fiscal year following the year being adjusted, in accordance with § 990.111.
(iv) PHAs are encouraged to:
(A) Provide conservation incentives and training to residents in order to realize increased utility savings;
(B) Share information with residents regarding changes in utility costs related to rate changes and to changes in consumption; and
(C) Explain to residents conservation benefits and impacts of excess consumption on the operating budget.
(3)
(c)
(1) Each year, the energy cost savings would be determined as follows:
(i) The consumption level that would have been expected if the energy conservation measure had not been undertaken would be adjusted for any change in utility rate and may be adjusted, subject to HUD approval, using a heating degree day adjustment for space heating utilities;
(ii) The actual cost of energy (of the type affected by the energy conservation measure) after implementation of the energy conservation measure would be subtracted from the expected energy cost, to produce the energy cost savings for the year. (See also paragraph (b)(2)(i) of this section for retention of consumption savings.)
(2) If the cost savings for any year during the contract period is less than the amount of operating subsidy to be made available under this paragraph (c) to pay for the energy conservation measure in that year, the deficiency will be offset against the PHA's operating subsidy eligibility for the PHA's next fiscal year.
(3) If energy cost savings are less than the amount necessary to meet amortization payments specified in a contract, the contract term may be extended (up to the 12-year limit) if HUD determines that the shortfall is the result of changed circumstances rather than a miscalculation or misrepresentation of projected energy savings by the contractor or PHA. The contract term may only be extended to accommodate payment to the contractor and associated direct costs.
(d)
(a)
(2) HUD may direct the PHA to submit its complete operating budget if the PHA has failed to achieve certain specified operating standards, or for other reasons which in HUD's determination threaten the PHA's future serviceability, efficiency, economy, or stability.
(b)
(2) When the PHA no longer is operating in a manner that threatens the future serviceability, efficiency, economy, or stability of the housing it operates, HUD will notify the PHA that it no longer is required to submit a complete operating budget to HUD for review and approval.
(c)
(2)
(i) An environmental review from the Responsible Entity and submit and receive HUD approval of a Request for Release of Funds under part 58 of this title, or, in cases where HUD has determined to do an environmental review under part 50 of this title, the
(ii) A determination from the Responsible Entity under part 58 of this title that the PHA's proposed non-routine maintenance and capital expenditure activities are exempt from environmental review in accordance with § 58.34(a)(12) of this title.
(3)
(4)
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(1) For the first twelve months beginning with the month that a unit meets both conditions of being approved for demolition and vacant, the full AEL will be allowed for the unit.
(2) During the second twelve-month period after meeting both conditions, 66% of the AEL will be allowed for the unit.
(3) During the third twelve-month period after meeting both conditions, 33% of the AEL will be allowed for the unit.
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(1) Physical and management improvements that benefit residents;
(2) Resident self-sufficiency services;
(3) Maintenance operations;
(4) Resident employment and training services;
(5) Resident safety and security improvements and services; and
(6) Optional earned income exclusions.
(a)
(1) The number of units occupied on the last day of the month that ends 6 months before the beginning of the Requested Budget Year; or
(2) The average occupancy during the month ending 6 months before the beginning of the Requested Budget Year. If the PHA elects to use an average occupancy under this paragraph (a)(2), the PHA shall maintain a record of its computation of its Actual Occupancy Percentage.
(b)
(c)
PHAs that receive financial assistance under this part shall comply with the audit requirements in 24 CFR part 85.26. If a PHA has failed to submit an acceptable audit on a timely basis in accordance with that part, HUD may arrange for, and pay the costs of, the audit. In such circumstances, HUD may withhold, from assistance otherwise payable to the PHA under this part, amounts sufficient to pay for the reasonable costs of conducting an acceptable audit, including, when appropriate, the reasonable costs of accounting services necessary to place the PHA's books and records into auditable condition. The costs to place the PHA's books and records into auditable condition do not generate additional subsidy eligibility under this part.
If there is a rescission of appropriated funds that reduces the level of funding under the Public Housing Capital Fund program, to the extent that the PHA can document that it is not possible to complete all the vacant unit rehabilitation in the PHA's approved Annual Statement, the PHA may seek and HUD may grant a waiver for 1 fiscal year to permit full eligibility under the Operating Fund Formula for those units approved but not funded. (See part 905 of this title for additional information regarding the Capital Fund program.)
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Interim rule.
On October 21, 1999, HUD published a final rule implementing the statutory merger of the Section 8 tenant-based and certificate programs into the new Housing Choice Voucher program. This interim rule amends HUD's regulations governing this new merger program to expand the regulatory payment standard protection against subsidy reduction. The October 21, 1999 final rule limited payment standard protection to the first 24 months of the lease term. The interim rule provides that a family is not subject to a subsidy reduction until the second regular reexamination of family income and composition following the payment standard reduction. This protection extends for the duration of the lease term. This interim rule also corrects a typographical error contained in the October 21, 1999 final rule.
Gerald J. Benoit, Director, Real Estate and Housing Performance Division, Office of Public and Indian Housing, Department of Housing and Urban Development, Room 4220, 451 Seventh Street, SW, Washington, DC 20410; telephone (202) 708-0477, extension 4069 (this is not a toll-free number). Hearing or speech impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
On October 21, 1999 (64 FR 56894), HUD published a final rule implementing the Section 8 tenant-based program provisions of the Quality Housing and Work Responsibility Act of 1998 (Title V of the FY 1999 HUD Appropriations Act; Pub.L. 105-276, approved October 21, 1998) (referred to as the “Public Housing Reform Act”). Of particular significance, the October 21, 1999 final rule implemented section 545 of the Public Housing Reform Act. Section 545 provides for the complete merger of the Section 8 tenant-based certificate and voucher programs. HUD's regulations for the new Section 8 merger program (known as the “Housing Choice Voucher program”) are located at 24 CFR part 982.
The October 21, 1999 final rule became effective on November 22, 1999. The final rule was preceded by HUD's publication of an interim rule on May 14, 1999 (64 FR 56894). The final rule took into consideration the public comments received on the interim rule, and most of the changes made at the final rule stage were in response to public comment.
The October 21, 1999 final rule amended the part 982 regulations to provide that payment standard protection will only apply during the first two years of the lease term. After the first two years of the lease, a family's subsidy would be based on the appropriate payment standard determined at the last regular annual reexamination of family income.
On reconsideration, HUD believes that this provision is too restrictive. HUD wishes to provide the benefit of protected subsidy levels to a greater number of assisted families—not just to new participants in the Housing Choice Voucher program, or assisted families moving to a new unit. HUD believes payment standard protection should extend for the duration of the lease term, and not be restricted to a limited number of years.
Accordingly, HUD is amending 24 CFR part 982 to expand the regulatory payment standard protection. This interim rule provides that a family is not subject to a subsidy reduction until the second regular reexamination of family income and composition following the payment standard reduction. This protection extends for the duration of the lease term.
This final rule also corrects a typographical error contained in the October 21, 1999 final rule. Specifically, the interim rule corrects § 982.501(c), which mistakenly provides that the provisions of § 982.521 apply solely to a tenancy under the Section 8 rental certificate program.
In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking at 24 CFR part 10. Part 10, however, does provide for exceptions from that general rule where HUD finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when the prior public procedure is “impracticable, unnecessary, or contrary to the public interest” (24 CFR 10.1). HUD finds that good cause exists to publish this rule for effect without first soliciting public comment, in that prior public procedure is contrary to the public interest. The reasons for HUD's determination are as follows.
HUD believes that the limits on payment standard protection established by the October 21, 1999 final rule are too restrictive. The interim rule corrects this error by providing assisted families with broader and more equitable regulatory safeguards against reductions in subsidy. Specifically, the interim rule extends the regulatory payment standard protection to all assisted families, not just to new program participants and assisted families moving to a new unit.
Delaying the effectiveness of this interim rule to solicit prior public comment would result in uncertainty among PHAs and affected families, as PHAs consider adjustments in payment standards under the existing requirements of the October 21, 1999 final rule without knowing the full scope of the additional regulatory changes to be made by HUD. Immediate effectiveness of this interim rule will reduce this uncertainty, and will allow PHAs to make payment standard adjustments knowing the likely implications of these decisions. Neither PHAs nor Section 8 residents will be disadvantaged by the change.
HUD also notes that the new Housing Choice Voucher program was implemented through an extensive public process, including three public forums across the nation, as well as the customary notice and comment rulemaking procedures.
Although HUD believes that good cause exists to publish this rule for effect without prior public comment, HUD recognizes the value of public comment in the development of its regulations. HUD has, therefore, issued these regulations on an interim basis and has provided the public with a 60-day comment period. HUD welcomes comment on the regulatory amendments made by this interim rule. The public comments will be addressed in the final rule.
The Office of Management and Budget (OMB) reviewed this rule under Executive Order 12866,
A Finding of No Significant Impact with respect to the environment was prepared on the October 21, 1999 final rule in accordance with the HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4223). That Finding is applicable to this interim rule, and is available for public inspection between the hours of 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC.
The Secretary has reviewed this interim rule before publication and by approving it certifies, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this interim rule would not have a significant economic impact on a substantial number of small entities. The interim rule is exclusively concerned with public housing agencies that administer tenant-based housing assistance under Section 8 of the United States Housing Act of 1937. Specifically, the final rule would establish requirements governing tenant-based assistance for an eligible family. The interim regulatory amendments would not change the amount of funding available under the Section 8 voucher program. Accordingly, the economic impact of this rule will not be significant, and it will not affect a substantial number of small entities.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This interim rule would not have federalism implications and would not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and on the private sector. This interim rule does not impose, within the meaning of the UMRA, any Federal mandates on any State, local, or tribal governments or on the private sector.
The Catalog of Domestic Assistance number for this program is 14.855.
Grant programs—housing and community development, Rent subsidies.
42 U.S.C. 1437f and 3535(d).
(c) * * *
(3)
(i)
(ii)
(iii)
(4)
(5)
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
On October 21, 1999, HUD published a proposed rule to revise its regulations regarding resident participation and resident opportunities in public housing. The rule proposed that a resident management corporation (RMC) may receive capital and operating funds from HUD if the RMC has primary management responsibility for the public housing project and HUD determines that the RMC has the capacity to effectively discharge such responsibility. This rule makes final the policies and procedures contained in the October 21, 1999 proposed rule, and takes into consideration the public comments received on the proposed rule. After careful consideration of all the public comments received on the October 21, 1999 proposed rule, HUD has decided to adopt the proposed rule without change.
Paula Blunt, Associate Deputy Assistant Secretary, Department of Housing and Urban Development, Office of Public and Indian Housing, 451 Seventh Street, SW, Room 4226, Washington, DC 20410; telephone (202) 619-8201 (this is not a toll-free telephone number). Persons with hearing or speech disabilities may access this number via TTY by calling the free Federal Information Relay Service at 1-800-877-8339.
Section 20 of the United States Housing Act of 1937 (42 U.S.C. 1437
Under section 20, and 24 CFR part 964, public housing residents may form resident management corporations (RMCs) for the purposes of managing public housing. The RMC enters into a management contract with the public housing agency (PHA) establishing the respective management rights and responsibilities of the RMC and the PHA. The contract may provide for the RMC to perform any or all of the management functions for which the PHA is responsible to HUD. The performance of the RMC is subject to periodic review by the PHA to ensure that the RMC complies with all applicable requirements and standards of performance.
On October 21, 1998, President Clinton signed into law the Quality Housing and Work Responsibility Act of 1998 (Title V of the Fiscal Year 1999 HUD Appropriations Act; Public Law 105-276; 112 Stat. 2461, 2522) (referred to as the “Public Housing Reform Act”). The Public Housing Reform Act constitutes a substantial overhaul of HUD's public housing and Section 8 assistance programs. The changes made by the Public Housing Reform Act are directed at revitalizing and improving HUD's public housing and Section 8 tenant-based programs. These changes are also designed to provide for more resident involvement, and to increase resident participation and awareness in creating and maintaining a positive living environment.
On October 21, 1999 (64 FR 56890), HUD published a proposed rule to amend 24 CFR part 964. The purpose of the proposed rule was to implement the statutory changes made to section 20 of the 1937 Act made by section 532 of the Public Housing Reform Act. Section 532 of the Public Housing Reform Act provides for the direct provision of capital and operating assistance to an RMC if: (1) The RMC petitions HUD for the release of the funds; (2) the management contract between the RMC and the PHA provides for the RMC to assume the primary management responsibilities of the PHA; and (3) HUD determines that the RMC has the capability to effectively discharge such responsibilities.
The proposed rule provided that HUD would consider this third requirement to be satisfied if the RMC is designated at least a “standard performer” under the Public Housing Assessment System (PHAS) (see 24 CFR part 902); and the RMC is not in violation of any financial, accounting, procurement, civil rights, fair housing, or other program requirements that HUD determines call into question the capability of the RMC to effectively discharge its responsibilities under the contract.
In all other cases where direct funding to an RMC is not provided, operating and capital funding would be provided to the RMC by the PHA. If HUD provides direct funding to an RMC, the PHA would not be responsible for the actions of the RMC.
In addition to implementing section 532 of the Public Housing Reform Act, the October 21, 1999 proposed rule also proposed to make one clarifying change to 24 CFR part 964. Specifically, the rule proposed to revise § 964.225 (entitled “Resident management requirements”) to clarify that an RMC must be in compliance with any local licensing requirement, or other local requirement governing the qualifications or operations of a property manager.
The preamble to the October 21, 1999 proposed rule provides additional information regarding the changes to 24 CFR part 964.
This final rule makes effective the policies and procedures contained in the October 21, 1999 proposed rule. The public comment period for the proposed rule closed on December 20, 1999. HUD received three public comments on the proposed rule. Comments were submitted by a national RMC organization, a law firm representing several RMCs, and a public housing resident council. HUD appreciates the suggestions offered by the commenters and carefully considered the issues raised by them. For the reasons discussed below, however, HUD has chosen not to implement their suggestions. After careful consideration of the public comments, HUD has decided to adopt the October 21, 1999 proposed rule without change. This following section of the preamble presents a discussion of the significant issues raised by the public commenters and HUD's responses to their comments.
One of the commenters expressed support for the proposed rule. The commenter wrote that it “strongly support[s] the regulations to permit direct funding of resident management corporations by HUD.” The commenter also wrote that the “direct funding of resident management corporations is essential.”
As discussed above, the purpose of the October 21, 1999 proposed rule was to implement section 532 of the Public Housing Reform Act. Several of the commenters submitted comments that did not concern the direct funding of RMCs and, therefore, were beyond the scope of the proposed rule. For example, one of the commenters recommended that HUD should clarify what comprises a duly constituted RMC. Two commenters suggested that the final rule should provide for RMC participation on the PHA's board of commissioners, or similar governing body. Another commenter suggested that public housing management contracts should be developed with the full participation of RMCs and their national organizations. There were also several other public comments that, although suggesting general changes to HUD's resident participation regulations at 24 CFR part 964, did not concern the proposed regulatory amendments described in the October 21, 1999 proposed rule.
HUD thanks these commenters for their helpful comments and recommendations. However, since these comments do not concern the direct funding of RMCs, HUD has not revised the proposed rule to incorporate the suggestions made by the commenters. These comments will be taken into consideration during HUD's development of a future proposed rule that will implement the other resident related amendments made by the Public Housing Reform Act.
In addition to providing for the direct funding of RMCs, the Public Housing Reform Act makes various other amendments to the statutory requirements regarding resident participation and resident opportunities in public housing. For example, the Public Housing Reform Act requires the participation of residents on the governing board of a PHA (section 505 of the Act) and provides for grant funding of services for public housing residents (section 538 of the Act).
The resident board membership requirements established by section 505 of the Act have been implemented through a separate final rule published on October 21, 1999 (64 FR 56870). The other changes made by the Public Housing Reform Act affecting the part 964 requirements will be the subject of a separate proposed rulemaking. HUD is committed to the development of this proposed rule with the active participation of public housing residents. HUD will solicit resident input through the scheduling of public forums, solicitations for written comments, and/or other appropriate means.
HUD's goal in undertaking this future rulemaking is to develop a set of easy-to-understand regulations that reflect the meaningful contributions of public housing residents. Accordingly, the proposed rule will not only implement statutory amendments made by the Public Housing Reform Act, but will also streamline and reorganize 24 CFR part 964 to simplify and improve the clarity of HUD's resident participation requirements.
In addition to rulemaking, HUD is also taking several other steps to promote effective resident participation in public housing (see Section V. of this preamble, below).
Only the third requirement described above provides HUD with discretion in determining whether an RMC is eligible to receive direct funding. This final rule provides that HUD will consider this third requirement to be satisfied if the RMC is designated at least a “standard performer” under the PHAS, and the RMC is not in violation of any financial, accounting, procurement, civil rights, fair housing, or other program requirements that HUD determines call into question the capability of the RMC to effectively discharge its responsibilities under the contract.
This third requirement will not impose any new requirements on RMCs. The final rule reflects existing performance measures and program requirements that RMCs must already comply with. For example, RMCs are already subject to the PHAS performance measures described in 24 CFR part 902. Further, RMCs are currently required to comply with all applicable program, civil rights, and financial requirements as a condition of assistance under HUD's public housing programs.
Although HUD welcomes “innovative changes and concepts” in the development of its regulations, the commenters did not provide specific recommendations for HUD's consideration. Further, HUD believes that the use of the existing measures described above will allow HUD to accurately determine RMC management capability, while minimizing the burdens imposed on RMCs. Accordingly, the proposed rule has not been revised.
Further, as noted in the response to the preceding comment, section 532 establishes very specific criteria that HUD must use in determining whether an RMC is eligible for direct funding. Where the statute provides HUD with discretion, HUD has chosen to rely on current and familiar requirements (such as compliance with the PHAS and applicable civil rights requirements). The use of already existing measures will allow HUD to accurately and expeditiously determine whether an RMC has the required management capability to directly receive funding. The establishment of an additional consultation procedure has the potential to unnecessarily delay HUD eligibility determinations. Accordingly, HUD has
To further promote effective resident participation in public housing, HUD is taking various steps to promote resident involvement in creating and maintaining a positive living environment. As discussed above, HUD is developing a proposed rule that will implement the resident related amendments made by the Public Housing Reform Act. HUD is committed to developing this proposed rule with the active participation of public housing residents. HUD is taking several other steps to increase resident participation in public housing. For example, HUD will conduct training for resident organizations and PHAs on the new Public Housing Reform Act.
A Finding of No Significant Impact with respect to the environment was made at the proposed rule stage in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4223). That Finding remains applicable to this final rule and is available for public inspection between the hours of 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) (the RFA), has reviewed and approved this final rule and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities. The reasons for HUD's determination are as follows:
(1)
(2)
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and on the private sector. This final rule will not impose, within the meaning of the UMRA, any Federal mandates on any State, local, or tribal governments or on the private sector.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule will not have federalism implications and will not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
The Office of Management and Budget has reviewed this rule under Executive Order 12866 (captioned “Regulatory Planning and Review”) and determined that this rule is a “significant regulatory action” as defined in section 3(f) of the Order (although not an economically significant regulatory action under the Order). Any changes made to this rule as a result of that review are identified in the docket file, which is available for public inspection during regular business hours (7:30 a.m. to 5:30 p.m.) at the Office of the General Counsel, Rules Docket Clerk, Room 10276, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500.
Grant programs—housing and community development, Public housing, Reporting and recordkeeping requirements.
42 U.S.C. 1437d, 1437g, 1437r, 3535(d).
a. Redesignate paragraphs (h), (i), (j), and (k) as paragraphs (i), (j), (k), and (l), respectively;
b. Add new paragraph (h); and
c. Revise newly designated paragraph (j).
(h)
(i) The RMC petitions HUD for the release of funds;
(ii) The contract provides for the RMC to assume the primary management responsibilities of the PHA;
(iii) The RMC has been designated as at least a “standard performer” under the Public Housing Assessment System (PHAS) (see 24 CFR part 902); and
(iv) The RMC is not in violation of any financial, accounting, procurement, civil rights, fair housing or other program requirements that HUD determines call into question the capability of the RMC to effectively discharge its responsibilities under the contract.
(2)
(3)
(j)
(2)
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
The purpose of this rule is to permit public housing residents to own pets, subject to reasonable requirements that the public housing agency may establish in consultation with the residents. This rule implements pet ownership policies and general requirements for residents of public housing other than public housing developments for the elderly or persons with disabilities. HUD published a proposed rule on June 23, 1999, and this final rule takes into consideration the public comments received on the proposed rule. This rule does not affect the pre-existing regulations covering pet ownership requirements for residents of public housing developments for the elderly or persons with disabilities.
Patricia S. Arnaudo, Senior Program Manager, Office of Public and Assisted Housing Delivery, Room 4222, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC, 20410-5000; telephone (202) 708-0744 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
The June 23, 1999 rule proposed to implement section 526 of the Quality Housing and Work Responsibility Act of 1998 (Pub.L. 105-276, approved October 21, 1998) (referred to as the “Public Housing Reform Act”), which added new section 31 (captioned “Pet Ownership in Public Housing”) to the United States Housing Act of 1937 (see 42 U.S.C. 1437z-3) (the Act). Section 31 establishes pet ownership requirements for residents of public housing other than public housing developments for the elderly or persons with disabilities. The proposed rule can be found at 64 FR 33640 (June 23, 1999).
The June 23, 1999 rule proposed to amend 24 CFR part 960 by adding a new subpart G, consisting of the following new sections: § 960.701 (captioned “Purpose”), stating that the purpose of subpart G is to permit pets in public housing; § 960.703 (captioned “Applicability”), limiting the applicability of the subpart G regulations to public housing other than public housing developments for the elderly or persons with disabilities (pet ownership in such housing is covered in 24 CFR part 5, subpart C); § 960.705 (captioned “Animals that assist, support, or provide service to persons with disabilities”), exempting service animals for people with disabilities; and § 960.707 (captioned “Pet ownership”), implementing the primary requirements of section 31 of the Act.
The main substantive regulatory section in the proposed rule, § 960.707, consisted of four paragraphs. Paragraph (a) provided that a public housing resident may own one or more common household pets if the resident maintains each pet responsibly, in accordance with applicable State and local public health, animal control and animal anti-cruelty laws and regulations, and in accordance with the policies established in the Public Housing Agency (PHA) Plan. Paragraph (b) provided examples of reasonable requirements that PHAs may impose on pet owners, such as limits on the number of animals in a unit and certain fees, specifically non-refundable nominal fees to cover costs to the development and refundable pet deposits. The non-refundable nominal fee is intended to cover the reasonable operating costs to the development relating to the presence of pets, and the refundable pet deposit is intended to cover additional costs not otherwise covered, such as damage to the unit, for example, attributable to a resident's pet. Paragraph (c), as proposed, provided for placing pet deposits into an escrow account from which the unused portion would be refunded. Finally, paragraph (d) provided that a PHA's pet policies under this rule must be included in the agency's Annual Plan under 24 CFR part 903.
This final rule adopts most of the core provisions of the proposed rule, but makes some changes to the proposal in response to public comments received. Specifically, in response to comments stating that the rule did not fully implement Congressional intent, HUD has revised the purpose section, § 960.701, to more fully express Congress' intent that PHAs permit pet ownership subject to reasonable rules.
HUD has made editorial changes to § 960.703 to more properly distinguish this rule from the existing rule that is found in 24 CFR part 5, subpart C, that pertains to pet ownership by the elderly and persons with disabilities. Because of these changes, a cross-reference has been removed.
Additionally, in response to comments that applicable State or local law should govern pet deposits, HUD has modified the proposed refundable escrow requirement in § 960.707(d), to provide that State or local laws applicable to pet deposits or, if applicable, rental security deposits apply.
Section 960.705 has been recaptioned and slightly revised to conform to fair housing requirements regarding animals that assist, support, or provide service to persons with disabilities. As before, the section generally states that this section does not apply to such animals, and does not affect either a PHAs right to require residents to comply with other existing requirements regarding such animals, or existing protections for such assistive animals. The primary difference from the proposed rule is that different language is used to define such animals, including the idea that these animals are necessary as a reasonable accommodation to persons with disabilities.
Section 960.707(b), which lists examples of reasonable requirements that PHAs may impose on pet owners, has been revised to add a provision specifying that PHAs may require pet owners to register their pets, and have them spayed or neutered. Also, a slight modification was made to paragraph (b)(3) of § 960.707 to clarify the applicability of State and local law to the issue of classifying certain animals as dangerous. A new paragraph (c) has been added to prohibit PHAs from requiring that pet owners remove their pet's vocal chords, in response to comments on that issue.
In § 960.707(b)(1), the distinction between nonrefundable nominal pet fees and refundable pet deposits has been clarified. Specifically, the nonrefundable fee is for general costs to the development associated with pet ownership, and the deposit is for costs attributable to particular pets that are not otherwise covered. This distinction is further explained in responses to comments.
Finally, further specificity has been added regarding the Annual Plan process in what is now § 960.707(e) to specify that, unless otherwise provided by 24 CFR 903.11, Annual Plans are required to contain information regarding the PHA's pet policies, as described in 24 CFR 903.7(n), beginning
The comment period for this rule closed on August 23, 1999. HUD received 3,777 comments. The commenters included public housing residents, resident organizations, public housing authorities, legal aid organizations, public interest animal advocacy groups, and individuals interested in issues involving animal welfare. HUD received approximately 3,000 additional comments after the close of the comment period. To the extent possible, HUD reviewed these comments to determine if any raised issues not already covered by the almost 4,000 timely comments.
HUD received a number of comments from commenters opposed to this rulemaking as a whole and to the idea of allowing pet ownership in public housing. This rulemaking is required by section 31 of the Act and because the issue of whether to allow pet ownership in public housing is not within HUD's discretion to change, there is no further discussion of this issue in the preamble. A summary of the remaining comments follows.
The following recommendations should be added to the rule to provide sufficient guidance: Mandate the spaying and neutering of dogs and cats; establish pet committees in all housing complexes that will be responsible for enforcement of the pet rules; ensure that pet rules protect the safety, health and well-being of pets as well as people in the community; and prohibit PHAs from requiring inhumane procedures, such as debarking or declawing.
A Pet Ombudsman should be appointed to oversee Federal pet policies; pets found roaming at large should be “microchipped” for future identification; residents should be allowed to temporarily keep foster pets received from an animal welfare agency or rescue group for companion animals.
Additional comments were as follows:
Outside pets should have adequate fencing and shelter;
The rule should prohibit outdoor pets;
The rule should prohibit or allow PHAs to prohibit pets based on climate-related factors;
There should be a limit on the number of different species of pet in a unit;
The rule should prohibit specific pets, such as certain kinds of dogs, birds, non-human primates and pot-bellied pigs;
The rule should require that dogs and cats be on leashes when outside;
The rule should prohibit the tethering or chaining of any animals;
PHA should have the right to take certain actions if there is evidence of an animal in distress, including entry into the unit, impoundment of the animal, and alerting authorities;
The rule should impose a limitation on the number of pets allowed per unit;
The rule should require that pets wear identification at all times;
The rule should prohibit tail and ear docking;
The rule should require that a PHA's pet regulations along with a telephone number to report violations should be posted;
The rule should require that all pets be spayed and neutered;
The rule should not allow requirements that pets be spayed and neutered; and
The rule should include specific requirements for ensuring the health of pets.
HUD also agrees with a number of comments regarding “debarking” pets, and so has added a provision in the final rule to prohibit a PHA from requiring that any pet's vocal chords be removed. This matches a provision of the current regulations regarding pets in public housing developments for the elderly and persons with disabilities.
As to the concept of an ombudsman, to the extent disputes occur, HUD expects PHAs to settle disputes with their residents reasonably and in accordance with the law and regulations. HUD field staff can assist by answering questions.
In addition, the statute and rule require residents to maintain pets in accordance with State and local public health, animal control, and anti-cruelty laws and regulations, most of which address health and safety concerns.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this rule, and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities. The rule provides for pet ownership in public housing, and allows PHAs to collect pet deposits to defray the costs to the development of pet ownership.
A Finding of No Significant Impact with respect to the environment was made in accordance with HUD regulations at 24 CFR part 50, which implements Section 102(2)(C) of the National Environmental Policy Act of 1969 at the proposed rule stage. That Finding remains applicable to this rule and is available for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of the General Counsel, Department of Housing and Urban Development, Room 10276, 451 Seventh Street, SW., Washington, DC 20410.
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on State and local governments and is not required by statute, or preempts State law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; approved March 22, 1995) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This proposed rule does not impose any Federal mandates on any State, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
The Office of Management and Budget (OMB) has reviewed this rule under Executive Order 12866 (captioned “Regulatory Planning and Review”) and determined that this rule is a “significant regulatory action” as defined in section 3(f) of the Order (although not an economically significant regulatory action under the Order). Any changes made to this rule as a result of that review are identified in the docket file, which is available for public inspection during regular business hours (7:30 a.m. to 5:30 p.m.) at the Office of the General Counsel, Rules Docket Clerk, Room 10276, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500.
Aged, Grant programs—housing and community development, Individuals with disabilities, Pets, Public housing.
42 U.S.C. 1437a, 1437c, 1437d, 1437n, 1437z-3, and 3535(d).
The purpose of this subpart is, in accordance with section 31 of the United States Housing Act of 1937 (42 U.S.C. 1437z-3), to permit pet ownership by residents of public housing, subject to compliance with reasonable requirements established by the public housing agency (PHA) for pet ownership.
This subpart applies to public housing as that term is defined in section 3(b) of the United States Housing Act of 1937 (42 U.S.C. 1437a(b)), except that such term does not include public housing developments for the elderly or persons with disabilities. Regulations that apply to pet ownership in such developments are located in part 5, subpart C, of this title.
(a) This subpart G does not apply to animals that assist, support or provide service to persons with disabilities. PHAs may not apply or enforce any policies established under this subpart against animals that are necessary as a reasonable accommodation to assist, support or provide service to persons with disabilities. This exclusion applies to such animals that reside in public housing, as that term is used in § 960.703, and such animals that visit these developments.
(b) Nothing in this subpart G:
(1) Limits or impairs the rights of persons with disabilities;
(2) Authorizes PHAs to limit or impair the rights of persons with disabilities; or
(3) Affects any authority that PHAs may have to regulate service animals that assist, support or provide service to persons with disabilities, under Federal, State, or local law.
(a)
(1) Responsibly;
(2) In accordance with applicable State and local public health, animal control, and animal anti-cruelty laws and regulations; and
(3) In accordance with the policies established in the PHA Annual Plan for the agency as provided in part 903 of this chapter.
(b)
(1) Requiring payment of a non-refundable nominal fee to cover the reasonable operating costs to the development relating to the presence of pets, a refundable pet deposit to cover additional costs attributable to the pet and not otherwise covered, or both;
(2) Limitations on the number of animals in a unit, based on unit size;
(3) Prohibitions on types of animals that the PHA classifies as dangerous, provided that such classifications are consistent with applicable State and local law, and prohibitions on individual animals, based on certain factors, including the size and weight of animals;
(4) Restrictions or prohibitions based on size and type of building or project, or other relevant conditions;
(5) Registration of the pet with the PHA; and
(6) Requiring pet owners to have their pets spayed or neutered.
(c)
(d)
(e)
Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Department of Transportation (DOT).
Policy statement.
On May 25, 1999, FRA and FTA published a proposed joint statement of agency policy concerning safety issues related to light rail transit operations that take place, or are planned to take place, on the tracks of the general railroad system. 64 FR 59046. In the same docket, on November 1, 1999, FRA published a separate proposed statement of policy providing details on its railroad safety jurisdiction and a detailed explanation of issues that will be addressed in its waiver process related to shared use of the general system. FRA also addressed the process of obtaining waivers of its safety regulations. After consideration of the nearly 50 written comments received and discussions of these issues in a variety of public forums, the agencies now issue this final joint statement of agency policy that explains generally how the two agencies intend to coordinate use of their respective safety authorities with regard to such shared-track operations. FRA is separately publishing today its final Statement of Agency Policy Concerning Jurisdiction Over the Safety of Railroad Operations, which includes a discussion of the comments received in this docket.
Gregory B. McBride, Deputy Chief Counsel, FTA, TCC-2, Room 9316, 400 Seventh Street, SW., Washington, DC 20590 (telephone: (202) 366-4063); and Daniel C. Smith, Assistant Chief Counsel for Safety, FRA, RCC-10, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone: (202) 493-6029).
In many areas of the United States, local communities are considering, planning, or developing light rail, street-level transit systems similar to those now in operation in Portland, Oregon; Sacramento, California; Dallas, Texas; San Diego, California; Baltimore, Maryland; and Salt Lake City, Utah. Patterned on the trolleys that operated along the streets of hundreds of American cities and towns earlier in the century, these newer light rail systems promote more livable communities by serving those who live and work in urban areas without increasing congestion on the nation's already crowded highways.
Some of these existing light rail systems, such as those in San Diego, Baltimore, and Salt Lake City, like some of those now contemplated for the future, would in addition to service provided along community streets, take advantage of underutilized urban freight trackage to provide service that, in the absence of the existing right of way, would be prohibitively expensive. These potential passenger services usually envision light rail operations during the day and freight operations during the night.
FRA has long regulated the nation's railroads for safety purposes. FRA's railroad safety jurisdiction extends to all types of railroads except for “rapid transit operations in an urban area that are not connected to the general railroad system of transportation.” 49 U.S.C. 20102. A complete discussion of FRA's safety jurisdiction can be found at 49 CFR part 209, Appendix A. In this context, “rapid transit operations” refers to rail systems that are devoted in substantial part to moving people from point to point within a city's boundaries. Such systems may use heavy subway and elevated, or light rail, equipment and will be covered in this statement by the general terms “local rail transit” or “light rail transit.” FRA's safety jurisdiction covers all commuter railroad operations (even if they use equipment that might be considered light rail or transit equipment) without regard to their general system connections. This statement of policy does not apply to commuter railroad operations.
Until the 1990's, there was no Federal program for addressing the safety of local rail transit systems that are not subject to FRA's safety jurisdiction (i.e., those not connected to the general railroad system). However, faced with the growing movement to develop new rail transit systems, Congress addressed the safety of such systems in the Intermodal Surface Transportation Efficiency Act of 1991, requiring that FTA issue regulations requiring that states having rail fixed guideway mass transportation systems “not subject to regulation by the Federal Railroad Administration” establish a state safety oversight program. 49 U.S.C. 5330. Those regulations, which appear at 49 CFR part 659, provide that they apply where FRA does not regulate. Thus, Congress has now defined the Federal role with respect to the oversight of both railroads subject to FRA's safety jurisdiction and rail transit systems not connected to the general railroad system.
The primary issue addressed by this policy statement is the means by which FRA and FTA propose to coordinate their safety programs with regard to rail transit systems that share tracks with freight railroads. Although compatible in terms of track gage, these two forms of rail service are incompatible in terms of equipment. A collision between a light rail transit vehicle with passengers aboard and heavy-duty freight or passenger equipment would likely result in catastrophe.
In general, FRA provides safety oversight of all railroad operations except rapid transit operations that have no significant connection to the general railroad system, such as the Chicago Transit Authority (CTA) in Chicago, the Washington Metro, and the subway systems in New York, Boston, and Philadelphia. As noted, the safety rules of FRA and FTA are mutually exclusive. If FRA regulates a rail system, FTA's rules on state safety oversight do not apply. Conversely, if FRA does not regulate a system, FTA's rules do apply, assuming that the system otherwise meets the definition of a “rail fixed guideway system” under 49 CFR 659.5.
This joint statement is intended to: (1) Explain the nature of the most important safety issues related to shared use of the general railroad system by conventional and rail transit equipment; (2) summarize the application of FRA and FTA safety rules to such shared-use operations; and (3) help transit authorities, railroads, and other interested parties understand how the safety programs of the two agencies will be coordinated.
The expansion of rail passenger transportation promises significant benefits to America's communities in
The most important safety issue related to shared use of general railroad system trackage is the potential for a catastrophic collision between conventional rail equipment and rail transit equipment of lighter weight. Because of the significantly greater mass and structural strength of conventional equipment, the two types of equipment are simply not designed to be operated in a setting where there is any appreciable risk of their colliding.
For decades, the greatest cause of death associated with railroading in America has been collisions between railroad vehicles and highway vehicles at grade crossings. Unlike traditional rapid transit operations, existing and contemplated shared-trackage light rail operations on the general system will typically involve train movements through highway grade crossings. To the extent train movements through grade crossings increase, the collision exposure to the highway user increases. We want to ensure that local rail transit operations are designed and operated to address these serious risks and to prevent grade crossing collisions involving light rail equipment.
A related issue is the prevalence of death and serious injury to trespassers on railroad property. Trespasser fatalities have recently outpaced grade crossing accidents as the leading cause of death on the nation's railroads. To the extent that shared use of general system trackage results in a substantial increase in the number of pedestrians crossing by foot in the path of trains, the potential for additional deaths to trespassers is very real and should be addressed in planning these operations.
Light rail operations on general railroad system tracks will affect and be affected by the track, bridges, signals, and other structures on the line. The light rail and conventional systems may also share a communications system. The responsibility for operating and maintaining this shared infrastructure may vary according to the agreements reached between the parties. However, even if the light rail operator has no direct responsibility for maintenance, there will need to be sufficient coordination to alert the light rail operator to related safety problems and to ensure the light rail operator conveys relevant information (
Employees who operate trains on general system track, control movements over that system, or maintain its infrastructure are provided certain protections under the Federal railroad safety laws. Light rail employees will be entitled to appropriate protections during shared-track operations. In addition, the light rail operators will need to observe rules designed to protect employees of other organizations who may be working along the right-of-way.
Local rail transit operations conducted over the track of the general system become part of that system and necessitate FRA safety oversight of rail transit operations to the extent of such shared use. This does not mean that all of FRA's regulations will be applied to all aspects of these operations. First, FRA has no intention of overseeing rail transit operations conducted separate and apart from general system tracks,
Where complete temporal separation between light rail and conventional operations is achieved, the risk of collision between the two types of equipment can be minimized or eliminated. Temporal separation involves operating conventional and light rail equipment at completely distinct periods of the day (in San Diego, for example, conventional rail movements occur only between 1:30 a.m. and 4 a.m.) and establishing procedures to ensure strict observation of the defined operating windows. Under these circumstances, FRA will grant necessary waivers concerning rules related to design of the passenger equipment, although other safety concerns (
Where local rail transit operations consist of segments that involve shared track with conventional equipment connected to segments that do not involve shared track (
Although this policy statement addresses shared-track operations, it is important to also acknowledge the situations in which light rail transit operations share a right-of-way, but no trackage with conventional railroads. An example is a light rail system whose tracks run parallel to but between the tracks of a freight line. Where such systems share highway-rail grade crossings with conventional railroads, FRA expects both systems to observe its rules on grade crossing signals that, for example, require prompt reports of warning system malfunctions. In addition, and apart from their safety regulatory programs, FRA and FTA are eager to coordinate with rapid transit agencies and railroads wherever there are concerns about sufficient intrusion detection and related safety measures designed to avoid a collision between rapid transit trains and conventional equipment.
Similarly, where a rail transit system crosses a conventional railroad at grade, but has no other connection to the general system, FRA and FTA will coordinate with the transit system and railroad to ensure safety at the crossing. FRA does not consider a switch that merely permits the transit system to receive shipments for its own use a connection significant enough to warrant application of FRA's rules.
FTA and FRA have been working closely together for several years to ensure proper coordination of their safety programs. In October 1998, FRA and FTA entered into an agreement designed to enhance their efforts in identifying and resolving safety issues in rail-related projects funded by FTA. Under the agreement, the agencies agreed to take actions that will ensure that FRA's rail safety expertise is brought to bear on safety issues inherent in commuter rail grant proposals early in the planning and development process.
Light rail transit operators who intend to share track of the general railroad system with conventional equipment will either have to comply with FRA's safety rules or obtain a waiver of appropriate rules. FRA may grant a waiver “if the waiver is in the public interest and consistent with railroad safety.” 49 U.S.C. 20103(d). FRA intends to make its waiver process as smooth and comprehensive as possible. FTA will assist FRA in that effort. In its separate final statement of policy issued today, FRA provides detailed guidance on what factors the petition should address.
FRA and FTA have grave concerns about whether, given their structural incompatibility, light rail and conventional equipment can ever be operated safely on the same trackage at the same time. In the event that petitioners nevertheless seek approval of simultaneous joint use, the petitioners will face a steep burden of demonstrating that extraordinary safety measures will be taken to adequately reduce the likelihood and/or severity of a collision between conventional and light rail equipment to the point where the safety risks associated with joint use would be acceptable.
Like all waiver petitions, a Petition for Approval of Shared Track is reviewed by FRA's Railroad Safety Board. FTA has a non-voting liaison to that board who participates in the board's consideration of all such petitions. This close cooperation between the two agencies ensures that FRA benefits from the insights, particularly with regard to technological, operational, and financial issues, that FTA can provide about light rail operations, as well as from FTA's knowledge of and contacts with state safety oversight agencies. This working relationship also ensures that FTA has a fuller appreciation of the safety issues involved in each specific shared use operation and a voice in shaping the safety requirements that apply to such operations.
In general, the greater the safety risks inherent in a proposed operation the greater will be the mitigation measures required. It is the intention of FTA and FRA to maintain the level of safety typical of conventional rail passenger operations while accommodating the character and needs of light rail transit operations.
FRA and FTA believe that they can give light rail operators a high degree of confidence that FRA will provide the waivers they need to operate on a time-separated basis in shared-use situations, as already demonstrated in the three cases cited above. To facilitate the waiver process, FRA includes in its final statement of policy issued today a detailed statement of the rules light rail operators should expect to comply with and those rules from which they can expect to receive waivers, provided that the planned light rail operations will be wholly separated in time from conventional rail operations. With this information, light rail operators can plan and design their projects in such a way that they can be confident, absent unusual facts about a particular project presenting some atypical safety hazard, of receiving the waivers needed to operate.
In its petition, the light rail operator may want to certify that the subject matter addressed by the rule to be waived is addressed by the system safety plan and that the light rail operation will be monitored by the state safety oversight program. That is likely to expedite FRA's processing of the petition. FRA will analyze information submitted by the Petitioner to demonstrate that a safety matter is addressed by the light rail operator's system safety plan. Where FRA grants a waiver, the state agency will oversee the area addressed by the waiver, but FRA will actively participate in partnership with FTA and the state agency to address any safety problems. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety.
Expanded use of existing railroad lines to provide increased transportation opportunities for passengers in metropolitan areas is a development that FTA and FRA strongly wish to encourage. Working together, the two agencies intend to ensure that these efforts go forward smoothly and in a way that guarantees that the blending of light rail and conventional rail operations continues their excellent safety records.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule and policy statement.
FRA and the Federal Transit Administration (FTA) have jointly developed a policy concerning safety issues related to light rail transit operations that share use of the general railroad system track with conventional trains. That policy, published elsewhere in today's
This statement of policy is effective July 10, 2000.
Daniel C. Smith, Assistant Chief Counsel for Safety, FRA, RCC-10, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone: 202-493-6029) or David H. Kasminoff, Trial Attorney, FRA, RCC-12, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone: 202-493-6043).
DOT strongly encourages increased use of railroads to serve the nation's passenger transportation needs. Many communities are using or planning to use railroad lines on which conventional freight and passenger trains operate to move commuters and other passengers in “light rail” vehicles. This development holds great promise for enhancing transportation alternatives in metropolitan and suburban areas. However, this shared use of conventional rail lines, which are within FRA's broad safety jurisdiction, also poses some significant safety issues. FTA provides a substantial share of the funding for many of these passenger operations, some of which straddle the jurisdictional line between FRA's and FTA's statutory safety authority. Therefore, FRA and FTA have decided to explain jointly, in a notice published elsewhere in today's
This notice does not amend any of FRA's substantive safety rules or impose any regulatory burdens not already imposed by those rules. Those rules cover a wide range of safety issues such as equipment, track, signals, grade crossings, and operating practices. By their own terms, they already apply to at least those rail operations, like those addressed here, that occur on lines where conventional trains operate. Nothing in this statement expands the applicability provisions of those rules. The only rules that FRA is amending are its statement of policy on safety jurisdiction, found in appendix A to 49 CFR part 209, and 49 CFR part 211, to which FRA is adding a new appendix containing its statement of policy concerning waivers related to shared use of the general system. FRA believes it is important to ensure that the agency's current thinking on these subjects can be readily located in the CFR.
Although agencies are not required to provide notice and an opportunity to comment on interpretive rules and statements of policy, FRA did so here to ensure that it had the benefit of the views of interested parties in developing its policy. Because of the substantial overlap in subject matter between FRA's proposed statement of policy (published November 1, 1999, at 64 FR 59046) and the joint FRA/FTA statement (published May 25, 1999, at 64 FR 28238), we concluded it made sense to have the comment periods on both statements run concurrently. Therefore, we extended the original comment period on the joint statement to coincide with the comment period on this statement (64 FR 58124). Then, based on a request from the major organization representing rail commuter and transit operations, we extended the comment deadline again, to February 14, 2000. We think this public process gave all concerned ample opportunity to develop and convey their views, and we have spent a great deal of time reviewing the many comments we received.
FRA received nearly 50 responses concerning its proposed statement of agency policy, including comments from: state and local governments and transportation authorities; transit agencies; transportation planners and consultants; citizen groups; a railroad labor union; the association representing the interests of conventional railroads; and the association representing the interests of the rail transit industry. Discussions follow with respect to the primary issues raised by the commenters. In light of the comments received, FRA has reconsidered some aspects of its proposed policy and has elected to adopt certain portions of the policy without substantive change from what FRA proposed.
The commenters addressed many of the important topics discussed in FRA's proposal, including the extent and exercise of FRA's jurisdiction, shared use of the general railroad system of transportation by light rail and conventional rail equipment, shared use of railroad rights of way by light rail and conventional rail equipment, and the nature of the waiver process involving shared-use operations. Several commenters applauded the agencies' efforts to clarify how FRA and FTA will exercise their respective authorities and provide guidance on how to use FRA's waiver process in this context. Many commenters had suggestions on how FRA could improve its expression of its policy, and a few simply opposed FRA's exercise of its jurisdiction, whether generally over light rail operations on the general system or specifically over their own operation. The major themes that emerged from FRA's review of the comments are as follows:
• FRA's proposed definitional distinction between “commuter railroad” and “rapid transit,” which involves determining the primary purpose of the operation and whether a substantial portion of the operation is devoted to moving people within a city's boundaries, is viewed by some commenters as improperly based in FRA's statutory authority or too vague.
• FRA should establish an administrative process to resolve jurisdictional questions, especially those involving light rail projects still in the planning stages.
• The “proposed restrictions” (apparently some commenters did not realize that FRA's rules already apply to these operations) on shared use of the same trackage by light rail and conventional rail equipment are unjustified because of added compliance costs and the possible discouraging effect on the development and expansion of light rail transit service. Certain commenters asked FRA to emulate what they understand as the European approach and permit simultaneous joint use of the same trackage by light rail and freight trains.
• The shared-use waiver petition process is too burdensome to transit system operators.
• FRA needs to explain its regulatory role in cases of a light rail transit operation sharing a right-of-way but no trackage with a conventional railroad.
Several commenters, including the Maryland Transit Administration (MTA) and the New Starts Working Group (NSWG),
The NSWG notes that its suggested changes to the policy statement do not “offer a different view of FRA's jurisdiction than the one FRA itself offers.” Instead, NSWG takes issue with particular aspects of how FRA has expressed its jurisdictional reach. NSWG contests FRA's suggestion that “urban rapid transit” is an exception to or special category of “commuter and other short-haul railroad passenger operations” instead of a completely separate category over which FRA lacks jurisdiction. The commenter does not wish to see the final policy statement imply a presumption that a rail operation is automatically a commuter or short-haul operation under FRA's jurisdiction unless it is an exceptional and special type of short-haul operation. FRA appreciates NSWG's close reading of 49 U.S.C. 20102, but believes that reading would not produce jurisdictional conclusions different from those rendered under FRA's reading. Whether “rapid transit operations in an urban area” are a type of “short-haul railroad passenger service” or a separate subset of the larger group of “railroads,” the statute excludes only one category of rapid transit operations, i.e., those that are “in an urban area” and not connected to the general system. Under either reading, a rail operation is presumptively covered by the statute unless the conditions of the exception apply.
The NSWG also requests that FRA correct some statements in the policy statement that NSWG believes blur the distinction between questions of jurisdiction and questions of the agency's discretionary enforcement. For example, under the section describing FRA's policy on the exercise of its safety jurisdiction, FRA states on page 59049 that it “currently exercises jurisdiction over all railroad passenger operations in the nation except: (1) Urban rapid transit operations not operated on or over the general railroad system; . . . .” The NSWG requests deletion of this statement from a discussion of the
In response, FRA notes that its final statement of agency policy concerning jurisdiction included in Appendix A to part 209 of the CFR, as amended by this notice, is perfectly clear as to where FRA believes it lacks jurisdiction. Nothing FRA has said suggests that FRA could exercise jurisdiction it does not have. Moreover, it is correct in literal terms to say that FRA does not exercise jurisdiction where it either lacks jurisdiction or chooses not to exercise it, and it is sometimes useful in certain contexts to combine those two categories to give the reader a clear picture of what FRA believes is outside of both the extent and exercise of its jurisdiction. For example, most of FRA's rules contain an applicability section that, among other things, excludes urban rapid transit systems not connected to the general system, but also contain the statutory definition of “railroad” that removes such operations from its jurisdiction.
As FRA acknowledged in its proposal, the statutory definition of “railroad” uses the terms “commuter or other short-haul railroad passenger service” and “rapid transit operations in an urban area” without providing a definition of either type of service. For a transit system planning to build a new operation that will
The Southeastern Pennsylvania Transportation Authority (SEPTA) contends that FRA's definition of “commuter railroad” is arbitrary and
The Port Authority of New York & New Jersey (PATH) commented that FRA is ignoring the plain meaning of words when it states on page 59049 of the proposal that “it is the nature and location of the [rapid transit] operation, not the nature of the equipment, that determines whether FRA has jurisdiction under the safety statutes.” In this regard, PATH argues that FRA is creating an arbitrary distinction between “commuter railroads” and “rapid transit operations” by looking to the primary purpose of each type of service. PATH believes that since commuter railroads and rapid transit operations both transport people, the distinction between a “commuter railroad” transporting commuters to and from work within a metropolitan area and a “rapid transit operation” moving people from point to point within an urban area has no relevance to the determination of jurisdiction under the Federal railroad safety laws. Even assuming that the basis for the distinction is legally correct, PATH is concerned that FRA's decision as to what constitutes a “substantial portion” of an operation will be made in an arbitrary manner.
In response, FRA again notes that it believes that Congress intended that the type of equipment used in a rail operation not be a jurisdictional factor, and that the word “railroad” be read to include “any form of nonhighway ground transportation that runs on rails or electromagnetic guideways.” 49 U.S.C. 20102. That statute speaks of commuter “service” and rapid transit “operations,” not the equipment used in either service. Given the vast range of rail passenger equipment already in use in this country and available from suppliers around the world, basing jurisdictional decisions on the type of equipment is an impossible task. There is simply no rational basis for drawing clear jurisdictional lines between types of equipment or for thinking that Congress intended FRA to do so. More important, if equipment were the deciding factor, the equipment outside of FRA's jurisdiction could run anywhere at any time, including mixed in with conventional freight and passenger operations without regard to the attendant safety risks of collisions between equipment of vastly different structural strengths, and yet avoid FRA's regulatory program. There is no evidence of such an intent in the statute.
PATH also cites in its comments to the Transportation Research Board's (TRB) definition of rapid transit. TRB defines a rapid transit system as:
A transit system that generally serves one urban area, using high speed, electrically powered passenger rail cars operating in trains in exclusive rights-of-way without grade crossings (Chicago is an exception) and with high platforms. The tracks may be in underground tunnels, on elevated structures, in open cuts, at surface level, or any combination thereof. Some local terms use for rail rapid transit are the elevated, the metro, the metropolitan railway, the rapid, the subway, the underground.
PATH did not provide a citation to the TRB document in which this definition appears. FRA notes that the definition begins in a circular fashion by defining rapid transit as a “transit system” without explaining what makes a system “transit.” Arguably, then, this definition merely describes the typical physical characteristics of a rail transit system without addressing what operational characteristics make it transit. The definition states that such systems generally operate in an urban area in “exclusive rights-of-way without grade crossings.” That is certainly true with regard to most systems FRA considers to be urban rapid transit. However, if FRA adopted this definition, the vast majority of the light rail systems (including those in operation in San Diego, Baltimore, and Salt Lake City) would be outside the definition of urban rapid transit (and, therefore, outside the sole statutory exception) so that even their street railway portions outside of the area of shared use would not be considered “rapid transit.” None of these light rail systems operates in an exclusive right-of-way, and they all have grade crossings. FRA's rationale for not exercising jurisdiction over their non-shared-use segments is that these are, at least in some cases, rapid transit systems that would be outside of FRA's jurisdiction but for their operation over the general system, and that the portions where use is not shared can be effectively regulated under FTA's program. Adoption of PATH's preferred definition would point in the direction of FRA's assertion of jurisdiction over those entire systems rather than just their shared use portions. Moreover, the TRB definition provides no help with reading the phrase “commuter or other short-haul railroad passenger service” in the statute. Under TRB's definition, a system would be considered rapid transit based on its physical characteristics even if its exclusive business was hauling commuters. Of course, FRA believes that Congress has clearly directed the agency to assert jurisdiction over commuter operations.
While we appreciate PATH's being the only commenter to offer an alternative to FRA's definitions, we find PATH's suggestion inappropriate for use in this context. FRA has struggled to develop definitions of these terms that embody what we believe was the intent of Congress. We think that Congress flatly wanted FRA to have and exercise jurisdiction over all commuter operations and to not have or exercise jurisdiction over urban railroad transit operations that stand apart from the general rail system. We doubt that Congress considered how difficult it may be to draw the line where systems have characteristics of both types of operations. We have based our definitions, as best we could, on the plain meaning and legislative history of the statutory terms as used in the railroad safety statutes. Also, in a non-safety context, Congress has listed certain specific rail systems as commuter authorities in the Northeast Rail Service Act of 1981 (“NERSA”), Pub. L. No. 97-35, 45 U.S.C. 1104(3).
We are also revising the definitions of “commuter railroad” and “urban rapid transit” to remove as a consideration whether “a substantial portion” of a system's operations is devoted to moving people from station to station within a city, and to focus instead on whether such service is a “primary function” of the system or “an incidental function” of its service. The “substantial portion” language suggested that there could be some numerical threshold of intra-urban service that could provide a bright line. Unfortunately, FRA is not aware of any such quantitative bright line, and must instead focus in a more qualitative way on how a system functions and whether such intra-urban service is truly a primary or incidental function of a system.
Although none of the commenters offered an effective alternative to the definitions we had proposed, they did give us several factors to consider and articulated a strong desire for greater clarity on the commuter/rapid transit distinctions. Toward that end, we have refined the definitions of those terms by noting which types of service are presumptively commuter or rapid transit and what criteria to apply in determining the proper characterization of a system that falls outside of the presumptions. Under the final policy, FRA's jurisdictional determinations will begin with two basic presumptions. First, if there is a statutory determination (such as NERSA) that Congress considers a particular service to be commuter rail, FRA will respect that determination and consider the service to be a commuter railroad. Second, a system to which the first presumption does not apply will be presumed to be an urban rapid transit system if it is a subway or elevated operation with its own track system on which no other railroad may operate, has no highway-rail crossings at grade, operates within an urban area, and moves passengers within the urban area as one of its major functions.
Where neither of the two presumptions applies, FRA will look at each system on a case-by-case basis and apply the following criteria:
• Serves an urban area and may also serve its suburbs.
• Moving passengers from station to station within the urban boundaries is a major function of the system and there are multiple station stops within the city for that purpose.
• The system provides frequent train service even outside the morning and evening peak periods.
• Serves an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area.
• The system's primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, and moving passengers from station to station within the immediate urban area is, at most, an incidental function.
• The vast bulk of the system's trains are operated in the morning and evening peak periods with few trains at other hours.
As several commenters recommended, this more refined analysis looks at factors such as the system's geographical reach within a metropolitan area and the frequency of service. The presumptions also resolve many issues without the need for further analysis.
Several commenters suggested that, in addition to setting forth meaningful criteria for determining the scope of its jurisdiction over light rail in shared corridors, the policy statement should also describe what administrative options are available within FRA for resolving jurisdictional questions. The American Public Transportation Association (APTA) urged FRA to adopt a pre-waiver review process to discuss FRA's jurisdiction. Consistent with APTA, the NSWG suggested that FRA establish an informal process for transit systems to secure jurisdictional determinations without submitting to FRA jurisdiction. The NSWG stated that FRA could offer transit systems the option to use a bifurcated approach for the submission of waiver petitions. In part one, the transit system could offer facts and legal arguments sufficient to permit FRA to render a threshold jurisdictional determination, and in part two (assuming that FRA has jurisdiction) the transit system would submit its comprehensive waiver petition.
In response to these comments, FRA stresses that it is always willing to meet with transit agency officials at the earliest stages of a project to determine if the proposed operation would be subject to FRA jurisdiction, and welcomes the opportunity to periodically consult with these individuals throughout the entire planning and implementation of a project under our jurisdiction. FRA recognizes that the equipment choices and right-of-way alignment options are complex issues, the resolution of which may be aided if a transit agency receives early guidance from the agency concerning FRA jurisdiction. Accordingly, FRA has amended its policy to include an informal method for obtaining jurisdictional determinations from FRA early in the process before preparation of a waiver application. The mere submission of a request for FRA's views on whether it has jurisdiction over an entity would not constitute submission to FRA's jurisdiction or acquiescence in FRA's eventual determination. Of course, FRA would have to base such determinations on the facts presented to it, and any significant changes in the system after its determination could require revisiting that ruling.
Four commenters directed their comments to the issue of whether FRA has statutory jurisdiction over their particular rail operations.
MTA considers the proposal to be an unwarranted and improper exercise of FRA's jurisdiction as it relates to MTA's light rail system. MTA states that it will use every available safety measure to ensure the safety of its system, and will proceed with its dialogue with FRA, but continues to believe that FRA's attempt to exercise jurisdiction over its light rail system is inappropriate under existing law. MTA argues that it is not the mere connection to the general system through which FRA's jurisdictional
PATH indicates in its comments that it is concerned with only the issue of jurisdiction, and not with the policy statement's discussion of shared facilities, since the PATH system does not share track with any other operator. PATH stresses that since, in its view, it shares virtually no common characteristics with the Long Island Railroad, MARC, or VRE, it should not be included by FRA as an example of a “commuter railroad.” PATH concludes that, when applied to its operation, FRA's proposed definition of a transit system as an operation that devotes a substantial portion of its operations to moving people from point to point within an urban area would clearly result in the classification of PATH as a rapid transit system. At the same time, PATH argues that FRA has no reasonable basis for looking at the characteristics of the passengers who ride PATH rather than the characteristics of the equipment to determine if it has jurisdiction. PATH's comments do not mention that a federal appellate court ruled that FRA had not abused its discretion when, in 1996, it determined that PATH is a railroad within its jurisdiction.
The Port Authority Transit Corporation (PATCO) in Philadelphia, Pennsylvania states that because it is an intra-urban mass transit system not connected to the general railroad system, it is subject only to FTA's authority. Since PATCO is regulated by FTA, and the respective jurisdictions of FTA and FRA are mutually exclusive, PATCO requests that the final joint policy statement make clear that it is not subject to FRA's regulations.
SEPTA devotes much of its comments to arguing that its planned passenger operation between Philadelphia and Reading, Pennsylvania, a distance of 62 miles, should not be subject to FRA's jurisdiction. One alternative being considered for that line is a light rail operation sharing a corridor with a freight line. SEPTA contends that, despite being primarily a commuter line, this operation would be outside of FRA's jurisdiction because it would serve other transit needs, have separate trackage in the freight corridor, and use light rail equipment.
While FRA is including a summary in this document of each operation's assertions for public informational purposes, this policy statement is not the appropriate vehicle for resolving the jurisdictional issues involving the peculiar facts of particular operations. Instead, FRA has addressed or will address each operation's concerns in the course of separate meetings and/or written correspondence.
Two commenters, APTA and the NSWG, requested that FRA add language to the policy statement to clarify that if a rail operation is subject to FRA jurisdiction for rail safety purposes, it does not necessarily mean that the operation is also covered by other Federal railroad statutes such as the Federal Employers' Liability Act, the Railway Labor Act, and the Railroad Retirement Act. Likewise, the commenters argue that being within the scope of those other railroad laws should have no relevance to FRA in determining whether a railroad system is deemed a railroad for rail safety purposes. FRA agrees with the points made. These other Federal statutes have their own definitions, purposes, and legislative histories. FRA does not consult them in making jurisdictional determinations under the safety statutes. Moreover, FRA does not intend that its jurisdictional determinations have any bearing on whether a rail operation is a “railroad” for purposes of those other statutes. While there are some specific links in the safety statutes to some of those other laws (e.g., the rail safety statutes incorporate the dispute resolution process of the Railway Labor Act for handling certain disputes related to safety-based discrimination against employees, 49 U.S.C 20109(c), and the Federal Employers' Liability Act contains a provision precluding a finding of contributory negligence against any employee where the railroad's violation of any safety statute contributed to the employee's injury or death, 45 U.S.C. 53, we do not believe that those links indicate a Congressional intent that FRA's safety jurisdiction would be affected by the reach of those statutes.
In the discussion of “Waiver Petitions Concerning Shared Use of the General System by Light Rail and Other Railroads,” in which FRA explained the general factors that should be addressed in a Petition for Approval of Shared Use, FRA indicated that light rail operators intending to share trackage on the general railroad system with conventional rail equipment must either comply with FRA's safety rules or obtain a waiver of appropriate rules. 64 FR at 59050. FRA explained that a collision between an occupied light rail transit vehicle and conventional freight or passenger equipment would have catastrophic consequences because the light rail vehicles are not designed to withstand such a collision. 64 FR 59049. FRA stated that the surest way to ensure that such collisions do not occur is to strictly segregate light rail and conventional operations by time of day, and that the agency is likely to grant waivers of many of its rules where complete temporal separation between the incompatible equipment is demonstrated. 64 FR 59055. Some commenters welcomed FRA's preference for temporal separation, while others saw it as too restrictive and not sufficiently open to the possibility that light rail and conventional equipment can operate safely and simultaneously on the same track.
Among the comments received, APTA stressed that the final policy statement should reflect the principles of promoting more livable communities and taking advantage of underutilized freight corridors to provide service that would otherwise be too expensive, and noted that the expansion of rail passenger transportation would benefit America's communities in terms of reduced highway congestion, reduced pollution, short commuting times, and increased economic opportunities. APTA requested that the shared-use waiver process be flexible, expeditious, and recognize already existing state safety oversight procedures in order to permit local authorities the maximum flexibility in designing, building, and operating new light rail systems.
APTA believes that a broad approach examining relative risk is vital to developing an appropriate long-term policy promoting light rail. In addition to assessing the safety impact of diverting traffic to highways, FRA and FTA should explore European system safety techniques which permit operation of differing equipment designs on the same track based on crash avoidance philosophies (e.g., advanced train control systems). FRA should be open to new approaches for shared-use operations, e.g., fail safe separation, train orders and track warrants, positive train control, and operating practices and technological
Various members of the Committee for Better Transit, Inc. (CBTI) commented that FRA did not justify the need to restrict shared use of the same track by freight and light rail service, and concluded that added compliance costs will prevent the expansion of rail transit systems. The commenters urged adoption of more flexible European-style requirements involving positive train separation between light rail/rapid transit and conventional freight/passenger trains operating on the same trackage. CBTI also urged FRA and FTA to consider operational factors such as speed and traffic volume. With the exception of traffic on the Northeast Corridor, a full mixing of conventional railroad and light rail traffic should occur with the use of proper train control methods (e.g., positive train stop and speed control). CBTI also contended that FRA is proposing to adopt a double standard, since automobiles, taxicabs, and school buses currently share the road with heavy trucks that may be transporting hazardous materials.
The City of Santa Clarita, California requested that FRA permit shared use of rail lines by freight and passenger vehicles during the same time of day, noting that to do otherwise would hinder the potential development of electric and diesel light rail lines in urban and rural areas. The commenter also noted that although light rail vehicles in European countries simultaneously share trackage with heavy trains, no injuries or deaths have occurred.
The Joint Policy Advisory Committee on Transportation (JPACT) stated that the imposition of total temporal separation as a condition for granting a waiver is too restrictive and costly, and recommended considering factors such as positive train separation, safety standards, signal system quality, dispatch procedures and coordination, train speeds, and overall line usage. JPACT also recommended that FRA work with FTA and APTA to study transit systems in Europe that operate on the same trackage as freight without absolute temporal separation.
The State of Delaware Department of Transportation (Delaware) expressed concern in its comments about the policy statement's de facto effect of discouraging increased shared use of tracks for light rail transit systems and stressed the need to avoid hampering implementation of light rail projects. Although waivers are an option, Delaware contends that FRA provides no insight into what types of alternative measures would be acceptable in lieu of complete temporal separation of light rail service from freight traffic. In this regard, the commenter stated that advances in train car designs can increase the crashworthiness of light rail vehicles, and that positive train stop technology can help avoid collisions. Delaware also noted concern about the steep evidentiary burden facing a petitioner that seeks a waiver.
Mr. Gordon J. Thompson, an urban transportation planner and consultant, believes that issuance of the policy as proposed would be an insult to the American transit industry and to state transportation regulatory agencies. He contends that the proposal could stymie electric rail transit development at a time when the need to encourage the use of public transportation is a growing concern. The policy could make capital and operating costs higher than necessary to implement and operate new rail transit systems, at a time when transit improvement funds remain scarce.
In its comments, SEPTA stressed that a shared-use option with freight railroad carriers is fundamental to developing a cost effective and environmentally sound solution to mobility challenges. The commenter states that temporal separation should not be viewed as the only option, and FRA should allow separation that employs a combination of track switches, interlocking signals, advanced control technology, and other technical safeguards. In this regard, SEPTA notes that the proposed policy statement discusses physical safety standards for different vehicle types and safety considerations with respect to different operating strategies, yet cites no standards for measuring the safe execution of various operating strategies in delivering transportation services. The phrase “the safety typical of conventional rail passenger operations” lacks a definition of what it means or how it should be measured.
The North Central Texas Council of Governments expressed support and approval of the shared use policy for light rail transit operating on conventional railroad tracks. The commenter believes that the proposed policies concerning passenger and rail employee safety, coordinated operations of track infrastructure, and temporal separation are well reasoned and will allow for the development of new transit opportunities in abandoned or lesser used rail corridors.
The North (San Diego) County Transit District (NCTD) believes that temporal separation provides a level of safety for train crews and the public that can permit optimal use of the infrastructure, but acknowledges that this approach must be supported by a detailed operating plan with appropriate procedures to ensure that no concurrent track usage occurs. NCTD strongly endorses the concept of guidance for the shared use of the general railroad system by conventional and light rail operations, and agrees with FRA and FTA that the primary purpose of the guidance should be the coordination of safety programs.
New Jersey Transit (NJT) urged FRA to exercise its jurisdiction over those elements of shared trackage used by conventional rail operations (e.g., track, signals, grade crossing warning devices, dispatching), but not over light rail operating practices or light rail car design standards. In this regard, NJT believes that time separation, operating practices (including the unambiguous transition from one service to another), and safety technologies should provide FRA with adequate assurances of the safety of light rail operations on the general system. NJT requests that the final policy statement state that there would be no requirement to file a waiver petition when light rail cars operate on the general system provided that the transit agency can demonstrate that adequate safety measures are in place to eliminate the risks presented by shared use. Moreover, the commenter recommended that the final policy statement specifically provide that once a transit agency demonstrates that there will be temporal separation through a safe operating plan and appropriate technology, and indicates that the light rail operations will be subject to an FTA-approved State Safety Oversight Program, FRA would not exercise jurisdiction.
In support of its contention that FRA should not require the filing of waivers for light rail equipment used in a temporally-separated operation, NJT indicates that it would be burdensome and inappropriate to expect the transit agency to explain how it will provide for an equivalent level of safety. Completion of a detailed waiver application would be particularly burdensome to a small project, especially if the interaction between heavy and light rail is minimal or nonexistent.
Finally, NJT urges FRA to study whether shared use operations can be permitted without temporal separation. In this regard, the commenter states that the proposed policy statement is concerned with crashworthiness, but fails to give equal consideration to crash avoidance technology (e.g., derails, signaling systems, and dispatching).
FRA has carefully considered all of the comments. However, many of them are based on what FRA believes are two critical misunderstandings, i.e., the view that FRA's policy will somehow impose new compliance burdens, and the notion that FRA has ruled out simultaneous use of track by light rail and conventional equipment under all circumstances.
Several commenters seem not to understand that FRA's policy statement imposes no new burdens, but rather suggests how relief from existing regulatory burdens might be obtained by waiver. Wholly independent of this policy, FRA's rules apply to these systems today and would continue to apply whether or not FRA issued a statement of policy on shared use. If waivers are not obtained, those rules apply as they are written. For example, FRA's passenger safety standards (49 CFR part 238) alone would preclude all light rail operations on the general system, since light rail vehicles do not meet the structural and other standards found in that rule. (Of course, the rule has a grandfathering provision that, under certain conditions, makes one basic structural requirement inapplicable to certain equipment already in use in 1999.) Therefore, it is very much in the commenters' interest for FRA to provide guidance on how its waiver process will work in this context and how best to address the issues of concern to FRA. Although the waiver process will entail some cost to the light rail operation, that cost is occasioned by FRA's existing waiver rules (49 CFR part 211) rather than this statement, and the alternative is the full cost of compliance with existing substantive rules.
Various commenters who oppose the concept of temporal separation contend that FRA fails to recognize the sophisticated operational and technological safeguards that can eliminate the risks associated with shared use of the general railroad system, particularly for operations involving simultaneous joint use. These commenters generally maintain that FRA is preoccupied with crashworthiness of the vehicles and not sufficiently focused on crash avoidance.
In response, FRA points out that temporal separation is actually a crash avoidance measure, and the one most likely to prove fully successful. FRA's discussion of the disparate crashworthiness features of light rail and conventional equipment was intended to highlight the likely severity of a collision between those types of vehicles. Because safety risk is a function of the likely severity of an accident and the likelihood of its occurrence, the greater the predictable severity the more interested FRA is in reducing the likelihood of the occurrence. FRA has made clear that it has not ruled out the possibility that methods of collision avoidance such as sophisticated train control systems may provide an acceptable level of safety. 64 FR 59055. However, FRA has stated that a petitioner seeking to use these types of equipment on the same track at the same time will face a steep burden in demonstrating that the likelihood of such a catastrophic accident is remote.
FRA would expect the waiver applicant to demonstrate that the risk of such an event is extremely remote by discussing the types of extraordinary safety measures that would be taken to adequately reduce the likelihood of a catastrophic collision between the two types of equipment to an acceptable level. The waiver application would also need to include a quantitative risk assessment concerning the risk of a collision under the applicant's proposed operating scenario and an engineering analysis of the light rail equipment's resistance to damage in various collision scenarios. 64 FR 59051. FRA recognizes that a 100 percent risk reduction cannot be assigned to any individual risk countermeasure, and that there are risks associated with the adoption of any new technology.
As discussed above, many of the commenters urge FRA to study the success of mixed operations in parts of Europe, where passenger and freight vehicles of different strengths operate on the same track at the same time. The commenters stress that joint use of tracks by transit and standard railroad vehicles has proved to be an important innovation in Europe that should be permitted here.
In response, FRA observes that the agency is very familiar with the European systems. FRA has studied European high speed passenger systems in detail for many years, and more recently has directly observed the mixed use operations in places such as Karlsruhe, Germany. If some of those systems were replicated in the United States in every detail, FRA would very likely approve them by rule or waiver. However, FRA is not aware of any current or proposed light rail system in the United States that is fully comparable to the European systems the commenters offer as a model.
The successful European experience with mixed light rail and freight traffic is best exemplified by the system in Karlsruhe, Germany. FRA and FTA officials (including FRA safety experts) have personally observed that operation twice in the last several months, most recently as part of a joint visit in April 2000. In Karlsruhe, the light rail system shares some trackage with freight and intercity passenger trains, and the different operations are not segregated by time of day. However, unlike many candidate lines for new light rail starts in the United States, the predominant traffic in Karlsruhe is scheduled passenger trains, rather than a mix of local and through freight trains. More important, the Karlsruhe system involves certain features critical to its safety: all trains that operate in the shared use portions must be equipped with automatic train control; the light rail vehicles have very high braking capacities (as compared to light rail vehicles used in the United States); all trains use a common communications system that permits radio communication with the control center and all types of other trains; all trains operate under the same operating rules; train crews are part of an integrated work force that is trained to operate all types of vehicles in use on the line and in fact operates different vehicles during the average work week; all dispatching is done centrally for all trains; all train crews are limited to less than 40 hours of work per week; the different types of rail equipment that operate in the shared use area differ less in mass and structural strength than do conventional and light rail vehicles in the United States; and grade crossings, which are not as common as in the United States, are protected by four-quadrant gates.
The combination of all of these features has produced what appears to be a very safe, integrated system in Karlsruhe. The commenters who advocate that system as a model for shared, simultaneous use of track in this country imply that FRA is unwilling to permit such innovation here. That is not correct. Instead, FRA is unwilling to permit simultaneous use of track that
FRA admires the integrated rail system in Karlsruhe, which has begun to be replicated elsewhere in Europe. However, we ask that anyone who invokes that system as a model be fully cognizant of its traffic mix and basic safety features and what it would take to replicate them on America's freight lines. Corporate structures, labor agreements, and differing railroad and transit cultures make some of these features extremely hard to replicate in this country. We think that the future of simultaneous joint use in this country will likely depend on safety innovations specifically crafted for the rail network we have, such as positive train control systems that are being tested in various locations, and the development of light rail vehicles that are compliant with FRA's passenger equipment standards. However, we are open to consideration of any reasonable proposal.
The AAR expressed concern about FRA's exercise of jurisdiction in cases where the only connection between the rail transit system and the conventional railroad is an at-grade crossing. The AAR believes that FRA should impose no restrictions on these operations, and that both should be permitted to operate during the same time of day. In addition, the commenter contends that complying with restrictions would be prohibitively expensive and compromise service to freight customers.
As FRA stated in its proposal on page 59058, when a rapid transit operation and a general system railroad have a railroad crossing at grade, “FRA will exercise its jurisdiction sufficiently to assure safe operations over the at-grade crossing.” Since the existence of a crossing represents a sufficient commingling of the rapid transit and general system operations to pose potentially significant safety hazards to one or both operations, FRA must reject the AAR's request that FRA decline to exercise its safety jurisdiction over this type of connection. In fact, because all of FRA's rules apply to all portions of the general system railroad, they apply to particular locations where the conventional railroad has a crossing with a light rail line. For example, the track and any signal devices at those locations must be maintained in accordance with FRA's rules. However, FRA notes that its rules apply only with respect to the general system portion of the rapid transit system's operation; if the non-general system portion of the rapid transit line is considered a “rail fixed guideway system” under 49 CFR part 659, FTA's rules apply to that portion.
AAR's comment points out the need for FRA to clarify when and how it will exercise jurisdiction over these railroad crossings at grade. In brief, FRA will work to ensure proper coordination of movements at these locations. FRA expects the general system railroad to comply with all applicable safety rules at that location, such as 49 CFR part 236 where the crossing is protected by a signal system. If FRA detects a safety problem at such a point that strict adherence to FRA rules on the part of the conventional railroad will not address, FRA will work with the conventional railroad and rapid transit line to develop a solution. As explained more fully in the statement of policy below, FRA does not expect to receive comprehensive Petitions for Approval of Shared Use concerning isolated conventional/light rail crossings that constitute the only connection a rapid transit system has to the general system. FRA does not consider those isolated connections to the general system as constituting shared use of general system trackage. However, given the fact that the crossing does constitute a connection to the general system that poses some risk to safety, FRA does expect to receive a brief waiver petition from the rail transit operator seeking relief from all of FRA's rules based on the safety protections in place at the crossing. On the other hand, where a light rail line crosses one or more conventional lines at grade and also shares trackage with one or more of those railroads, FRA will expect the Petition for Approval of Shared Use to explain how the light rail operation's systems safety plan addresses safety at the railroad crossings. In those situations, FRA will continue to look primarily to the conventional railroad for compliance with all applicable rules, but may use the waiver process to address any additional safety issues presented by the crossings.
The Central Puget Sound Regional Transit Authority (Sound Transit) recommends that FRA clarify its definitions of the terms “shared use” and “shared track.” Sound Transit urges FRA to define “shared track” to mean cases where rail modes of differing vehicle strengths do, or intend to, operate on the same track, and would require strict temporal separation to receive FRA waivers. Sound Transit suggests that FRA define “shared use” to mean facilities that rail modes of differing vehicle strengths may use or share during the same operating hours, but whose nature precludes the simultaneous use or occupancy of those facilities; an example would be a crossing for freight and light rail. In cases of “shared use,” Sound Transit contends that temporal separation would not be needed, provided that there is compliance with existing FRA regulations.
In response to Sound Transit's comments, we don't believe that “shared use” and “shared track” are sufficiently distinguishable to provide added clarity. However, in an attempt to enhance clarity, FRA is revising the final policy statement to explain that “shared use of track” refers to situations where light rail transit operators conduct their operations over the lines of the general system, and includes light rail operations that are wholly separated in time (temporally separated) from conventional rail operations as well as light rail operations operating on the same trackage at the same time as conventional rail equipment (simultaneous joint use). As discussed above, in instances where a rail transit system crosses a conventional railroad at grade, FRA's safety rules will cover this point of connection to the general system, but FRA will not categorize this crossing, in itself, as a case of two operations sharing use of the general system. Accordingly, when these two rail operations cross at grade, the same set of rules apply regardless of whether the light rail operation and the conventional rail operation operate during the same times of day.
Several commenters expressed concern that if FRA requires transit agencies to actively work in partnership with FRA and the state regulatory agency to address safety problems, a transit agency could be required to coordinate various aspects of its operation with up to three different Federal and state agencies. In this regard, San Diego Trolley stated that imposing such a requirement would lead to unnecessary duplication of effort and varying interpretations of rules, regulations and procedures. The California Transit Association (California Transit) commented that since FRA's jurisdiction is interpreted very broadly, it is unclear how the potential overlap of FRA, FTA, and state safety oversight jurisdiction will be coordinated to avoid confusion and duplicative efforts. California Transit also stressed that since the state safety oversight program is already in place in California, it would be premature to consider expanding FRA's role in transit operations.
FRA recognizes that light rail systems that meet the definition of rapid transit and are planning to operate on the general system, particularly those with segments off the general system, will be required to interact with FRA, FTA, and state agencies. Were FRA to somehow choose not to exercise its jurisdiction even over the shared use portion of these operations (which would eventually require amendments to all of its rules that apply to the general system), these operators would still have to deal with FTA and the states. FRA has no intention of doing that, of course. On the other hand, were FRA to exercise jurisdiction over the non-shared-use portions of these rapid transit lines under theory that they are connected to the general system, there would be no need to deal with FTA and the states. FRA has no intention of doing that, either, as it has made clear in its proposed statement and the proposed FRA/FTA joint statement.
Accordingly, the light rail operator's need to deal with three governments is both a byproduct of FRA's decision not to exercise jurisdiction as far as it may possibly reach (i.e., to the non-shared-use portions of rapid transit lines connected to the general system) and a major reason for the issuance of the joint FRA/FTA policy statement. That is, one of the purposes of that statement is to explain how FRA and FTA intend to coordinate their respective authorities, and the state safety oversight agency's authority is a derivative of FTA's program.
As set forth in detail in this final policy statement, light rail operators intending to share use of the general railroad system with conventional rail equipment will either have to comply with FRA's safety rules or obtain a waiver of appropriate rules. As FRA noted on page 59058 of its proposed policy statement, whenever FRA grants or denies a petition for a waiver of its safety rules, it will indicate whether its rules do not apply to any segments of the petitioning transit system's operation so that it is clear where FTA's rules on rail fixed guideway systems (49 CFR part 659) apply.
During the course of the waiver process, FRA will explain the transit system operator's compliance responsibilities for all segments of its operation and resolve ambiguities as to which agency's rules must be followed. With regard to FRA rules where no waiver is issued, there will be no potential for confusion: FRA will enforce and interpret its own rules. In the case of many of the regulations that FRA will likely waive, during its review of the waiver petition FRA will analyze information submitted by the petitioner to demonstrate that a particular safety matter is addressed in a state system safety plan and will be monitored by the state safety oversight program. Assuming FRA is satisfied that effective implementation of such a plan has occurred, FRA may conclude that adequate safety measures are in place to warrant waiver of certain FRA rules. The transit system operator would then be subject to the state safety oversight program in lieu of complying with these waived rules.
The prospect of FRA's continuing role even in those areas where it has granted a waiver seems to be the greatest concern of some commenters who fear duplicative regulation. However, all involved need to understand that FRA's issuance of a waiver does not constitute a relinquishment of its statutory jurisdiction. Whenever FRA grants a waiver to a railroad, FRA continues to regulate that railroad and merely applies the standard embodied in the waiver in place of the waived rule. A waiver may be withdrawn or modified if its conditions are violated. In the situations where FRA grants a waiver on the condition that the state safety oversight program will address the safety issue, FRA will defer to the state agency to the greatest degree possible, but will retain its jurisdiction. As to the regulations waived, this deference means that FRA's involvement will not entail regular inspection for adherence to the waiver conditions but will instead consist of periodic coordination with the state agency (perhaps including joint inspection) to ensure FRA is aware of any significant safety issues. FRA's involvement will vary with the degree of interface between the conventional and transit operations. Should any serious safety issues arise, especially issues likely to impact conventional operations, FRA would become more actively involved, working closely with the state oversight agency and FTA. The nature of this coordination with the state agency will vary somewhat depending on the working relationship FRA develops with each state agency. FTA will lend its good offices to promote that relationship. The greater FRA's confidence in the will and ability of the state agency to monitor the light rail operation with regard to the safety areas covered by waivers and keep FRA informed, the less FRA will need to become involved with those areas.
FRA may grant a waiver of any rule or order only “if the waiver is in the public interest and consistent with railroad safety.” 49 U.S.C. 20103(d). The waiver petitions are reviewed by FRA's Railroad Safety Board (Safety Board) under the regulatory provisions of 49 CFR part 211.
Each waiver petition is considered on its own merits, and the applicant is not limited as to format or content, provided that the minimum procedural requirements of 49 CFR part 211 are satisfied. The waiver process provides the applicant with wide latitude in discussing each of the specific safety issues involved in the specific shared use operation, and the opportunity to help shape the conditions that FRA will deem necessary to assure the safety of the operation. Since FRA's procedural rules only give a general description of what any waiver petition should contain (
APTA commented that its member organizations are concerned about the negative perception that the term “waiver” creates at the local level, and requests that FRA instead describe the waiver process as “authorized use” subject to FRA review and approval.
While FRA is sensitive to problems of perception, the agency urges all concerned to help correct any mis-perceptions about the nature of a waiver. As noted above, FRA may grant a waiver only if doing so “is in the public interest and consistent with railroad safety.” There is simply no reasonable basis on which to construe a waiver petition as a request from the petitioner for formal permission to flagrantly violate the requirements of a regulation, or to conclude that a transit system receiving a waiver will be less safe than a conventional railroad that operates in full compliance with FRA regulations. The publication of this policy statement and well constructed announcements by the petitioners of the granting of any waivers should help dispel any negative connotations that surround the use of the word “waiver” in some localities. FRA will continue to use the statutory term “waiver” to avoid any confusion as to the authority it is exercising. Of course, FRA has offered the suggestion that, where shared use of track is contemplated, the petition be called a “Petition for Approval of Shared Use.” FRA devised this term to make these sorts of waiver petitions readily identifiable and to address the concerns of those who dislike the term “waiver.”
Moreover, APTA hopes that eventually FRA will classify certain categories of equipment and operating practices as “accepted,” rather than as “waivers” of its regulations, thereby eliminating the need for the filing of most individual waiver requests. APTA recommends that FRA then merely verify compliance with such accepted practices through review and inspection. In the alternative, APTA asks FRA to consider “class waivers” or a “presumptive waiver,” or perhaps permit self certification.
In a similar vein, NJT requests that, rather than issuing a waiver, FRA decline to exercise jurisdiction over a temporally separated operation if the transit agency implements a safe operating plan, involving the use of appropriate technology, and indicates that the operation is subject to an FTA-approved state safety oversight program. NJT also recommends that FRA exempt transit agencies from even being required to file waiver petitions if they can demonstrate that adequate safety measures are in place to eliminate the safety risks posed by shared use operations.
Given FRA's statutory authority, which includes providing the public notice of, and opportunity to comment on, the requested waiver before it is granted, FRA cannot agree to eliminate the formal review of waiver petitions by the Safety Board and, instead, simply grant presumptive waivers to entire classes of light rail equipment and operations without the benefit of full proceedings. FRA's analysis of a waiver petition provides it with a detailed understanding of the overall level of safety of a proposed operation, including consideration of the unique operating conditions concerning each operation (e.g., frequency and speeds of all operations on the shared use trackage, equipment specifications that relate to the crash survivability of the light rail equipment). FRA does not believe that an informal self-certification by the light rail operator, subject only to FRA review
Similarly, NJT's suggestion that FRA simply not assert jurisdiction over whole categories of general system operations does not fit with FRA's concept of its safety role with regard to the general system operations or the text of FRA's existing rules. Consistent with the statutory definition of “railroad” at 49 U.S.C. 20102, FRA will exercise jurisdiction over any rapid transit system that operates as a part of, or over the lines of, the general railroad system of transportation, but only to the extent that it is connected to the general system, not over the entire transit system. Even where complete temporal separation exists, there are still safety issues (e.g., grade crossing safety and accident reporting) concerning the light rail operation that FRA can address only by exercising its jurisdiction. Moreover, since all of FRA's rules apply to operations on the general system, any categorical exemption of types of operations would require amendments to those rules.
Of course, petitioners interested in alternatives to the waiver process should be aware of two possibilities. First, to the extent that extremely similar light rail systems are developed, the waiver petition for one can provide a very helpful model for the later system. As patterns like this emerge, the waiver process can become much less burdensome than it may be when each new system is the first of its kind. Second, FRA could eventually amend its various rules to permit light rail operations on the general railroad system under certain specified general conditions (e.g., temporal separation as ensured by meeting particular standards, or even particular forms of simultaneous joint use that satisfy the need to all but eliminate the risk of a catastrophic collision) and to conform certain of its rules to standards more appropriate to the rapid transit environment. Such regulatory revision can take very long, and FRA's experience with these systems to date has not revealed patterns of similarities among active or proposed systems that would warrant new rules of general applicability. However, the day will likely arrive when such rule revisions are in order. When completed, the new rules would obviate the need for waiver petitions on the part of any operation that could comply with their terms.
Some commenters expressed concern with the length of time required by FRA to review and resolve each waiver petition, and indicated that financial decisions involving the planning of a light rail project often cannot be made until FRA determines the types of conditions that would be necessary to permit granting of a waiver. FRA believes that encouraging applicants to submit petitions that comprehensively address each of the general factors set forth in the policy statement will lessen the likelihood that FRA will require supplemental information during its review of the petition. If a petitioner submits a petition that specifies exactly which rules are requested to be waived and explains precisely how a level of safety at least equal to that afforded by the FRA rule will be provided by alternative measures, FRA will be able to expedite the waiver process. FRA is also willing to meet with transit agency officials at an early stage in a project, and may grant conditional approval of waivers subject to future review of the system safety plan to determine readiness to commence operations.
As an additional means of streamlining the waiver process, FRA's policy statement includes a rule-by-rule discussion of factors of great interest to FRA in considering waiver requests concerning each rule. FRA is also including a detailed chart in the final policy statement that will assist operators of rail transit operations on the general system that are completely separated in time from conventional railroad operations, and that pose no atypical safety hazards. The chart lists each of FRA's railroad safety rules and states the likelihood of such light rail systems receiving waivers from compliance.
As FRA noted in the proposed policy statement (as well as elsewhere in this
Several commenters objected to FRA's suggestion that the light rail operator “and all other affected railroads jointly file” a petition for approval of shared use. 64 FR 59050. In particular, APTA argues that while the freight operator should be made aware of the waiver application, with agreements reached to ensure a safe operating environment, it is unnecessary to explicitly require the freight operator in all cases to approve the transit agency's application. Moreover, APTA is concerned that such a requirement may give the freight operator unfair leverage in negotiations with the transit agency over shared-use operations on the general system. The NSWG recommended adopting a procedure whereby the waiver applicant would have the burden to demonstrate that all users had a clear understanding of how operations will be conducted and how temporal separation would be strictly maintained.
Based upon careful consideration of the comments, FRA is revising the final policy statement to indicate that, while the conventional railroad(s) operating on a line will always be an interested party concerning a light rail operator's waiver petition for shared use of the general system, the conventional operator need not be a joint filer. FRA's rules on waiver petitions (49 CFR 211.7 and 211.9) do not require joint filing, and FRA's suggestion of joint filing was not intended to alter the rules. However, while FRA will not require joint filing as a prerequisite for evaluating the light rail operator's application, since FRA expects the transit applicant to thoroughly describe the alternative safety measures to be employed in lieu of each rule for which a waiver is sought, the input of the freight (or other conventional) operator is imperative. Accordingly, FRA anticipates that before a light rail operator submits a shared-use petition, the transit agency will effectively communicate with the affected freight or other railroad to coordinate interaction of the two operations on the same trackage, including what the respective hours of operation will be for each type of equipment. If the light rail and conventional operations will occur only under time-separated conditions, FRA will expect all of the affected railroads to jointly determine what means of protection will ensure that the different types of equipment will not operate simultaneously on the same track, and how protection will be provided to ensure that where one set of operations begins and the other ends there will be no overlap that could result in a collision. Unless a petition thoroughly explains how the light rail operation will interact with conventional operations on the line and documents the agreement of those other railroads to any necessary safety arrangements to coordinate their operations with the light rail operation, FRA is likely to conclude that the petition does not contain “sufficient information to support the action sought.” 49 CFR 211.9. As a condition of any waiver, the conventional railroad must subscribe to these responsibilities that are relevant to its operations in connection with the shared use arrangement. Accordingly, FRA's policy statement suggests that the petition contain documentation of the precise terms of the agreement between the light rail operator and the conventional railroad concerning any actions that the conventional railroad must take to ensure effective implementation of alternative safety measures. Of course, FRA will not grant a waiver to a light rail operator that is based on conditions concerning another railroad's operations without providing notice and an opportunity for a hearing, which will permit that other railroad to fully explain its views.
However, where the “other affected railroads” are legally responsible for compliance with the regulation sought to be waived by the light rail operator, these other railroads must also petition for relief, whether jointly with the light rail operator or separately. For example, if a light rail operator is seeking a waiver of the Signal System Reporting Requirements of 49 CFR part 233 but the conventional railroad is currently responsible for maintaining some of the signal systems, both parties have compliance obligations concerning the light rail operation. In some areas, the freight operator will essentially be relieved of certain of its obligations if the light rail operator receives a waiver. For example, FRA's rule on passenger equipment generally makes a railroad liable for permitting the use or haul on its line of non-complying equipment. 49 CFR 238.9. If the light rail operator obtains a waiver for its equipment, that equipment will no longer be considered not in compliance. However, the freight operator may want to participate in the waiver process from the beginning.
The NSWG urged FRA to grant waivers for shared-use operations in perpetuity, subject to FRA's authority to modify or withdraw a waiver if the conditions imposed are not met or if unanticipated safety issues arise that merit such action. In this regard, the NSWG stated that transit systems likely to seek temporal separation waivers will seek them in connection with rail projects funded in part with Federal funds administered by FTA. Since FTA will require these transit systems to demonstrate that they will have control of, and the ability to use, all of the assets (e.g., the rail right-of-way and passenger vehicles) acquired with the Federal funds for the 20 to 40 year useful life of the assets, a five year limitation on the duration of a waiver is, in NSWG's view, inadequate.
FRA is mindful of the transit agency's need for a degree of long-term certainty about the safety-related conditions that may apply to its operation, and recognizes that a rail project represents a long term commitment of a transit agency's resources. However, FRA cannot accept NSWG's recommendation that the Safety Board issue waivers for indefinite periods of time, since this would hinder FRA's opportunity to determine if circumstances have changed or if issues have arisen that were not contemplated when the relief was last granted or renewed. FRA notes that the agency typically issues waivers of limited duration and has not adopted a unique policy here. FRA intends to grant waivers for periods of sufficient length (e.g., five years) to permit long-term planning. Moreover, FTA is well aware of the reasons for FRA's reluctance to grant permanent waivers, and will not consider the need to renew a safety waiver an indication that the transit system lacks control of, and the ability to use, its assets for their useful life.
While FRA retains the authority to modify or withdraw a waiver in the interest of rail safety, such action is generally limited to instances when FRA uncovers a substantial change in the conditions under which the waiver was granted or determines that a significant unforeseen safety issue exists. FRA will ordinarily become aware of such developments during the term of the waiver through its coordination with the state safety agency that oversees the subjects on which FRA has granted waivers, and
Four of the five commenters on this issue objected to the fact that FRA will not permit FTA's liaison to FRA's Safety Board to vote. The consensus of the commenters was that the proposed approach will not effectively ensure that FTA's knowledge and insights with respect to transit operations, financial issues, and state safety oversight are adequately considered by the Safety Board. The commenters believe that the two DOT agencies have different perspectives on non-safety related topics, and the best decisionmaking between two parties with diverse interests occurs with shared equal authority. However, the fifth commenter, San Diego Trolley, stated that while it would be inappropriate to allow FTA to participate in voting on waiver applications, FTA's representative should have more direct authority in the decisionmaking process.
Under delegation from the Secretary of Transportation, see 49 CFR 1.49, FRA administers the Federal railroad safety statutes, and all waivers requested from FRA's Safety Board involve exclusively FRA's regulations. FTA is not charged with administering the Federal railroad safety laws. Rather, FTA is responsible for: developing comprehensive and coordinated mass transportation systems to serve metropolitan and other urban areas; administering urban mass transportation programs, including its rule on the safety of rail fixed guideway systems; and assuring appropriate liaison and coordination with other governmental organizations with respect to the foregoing. Since FTA's statutory authority does not include administration of the Federal railroad safety laws, it would be inappropriate and outside the scope of FTA's legal authority if the FTA liaison to the Safety Board can veto the waiver conditions that FRA elects to impose on an applicant. Similarly, while FRA provides its rail safety expertise to FTA on safety issues inherent in FTA's review of rail grant proposals, FRA cannot vote on FTA's funding decisions, and it would not be appropriate for FRA to do so. FRA may have contributed to some confusion on this issue by using the description “non-voting” without explaining how the Safety Board works. FRA's Safety Board is not a collegial body like an independent agency; the chairperson of the board is the sole deciding official and acts by delegation from the Administrator. Other board members, all of whom are FRA staff, participate in the deliberations and offer advice and counsel, but do not vote. Under FRA's arrangement with FTA, the FTA representative will have a voice in deliberations equal to that of FRA staff.
In response to concerns from the commenters that without an official vote FTA's role with the Safety Board be ineffective, FRA stresses that the reason it is including an FTA official as an invited participant in the consideration of Petitions for Approval of Shared Use is to receive FTA's, and through it, the transit industry's perspective on the many unique and complex issues involving light rail operations. Since FRA recognizes that its expertise is in matters related to railroad safety, the agency wants FTA's expert advice on the facts presented in the petition concerning the project's special characteristics and operating considerations prior to selecting appropriate waiver conditions. Under FRA's safety partnership with FTA, not only will FTA have the opportunity to shape the safety requirements that will apply to light rail operations on the general system, but FTA will gain a fuller appreciation of the rail safety issues involved in each shared-use operation considered by the Safety Board.
Before FRA's proposed policy statement was published in the
FRA received 11 comments on the issue of FRA's jurisdiction over a light rail transit operation sharing a right-of-way but no trackage with a conventional railroad. In general, the commenters request clarification in the final policy statements as to how FRA and FTA intend to coordinate their programs with respect to a rail transit system that operates within the same right-of-way as conventional equipment, without shared trackage. Many of the commenters stress that any standards adopted by FRA for sharing the right-of-way need to be as clear and explicit as possible to assist the transit systems in evaluating potential light rail projects and planning those deemed desirable.
SEPTA believes that it is unnecessary for FRA to assert jurisdiction over light rail operations running parallel to freight service because transit agency systems are covered under existing state safety oversight program plans. SEPTA states that the proposed joint policy statement is unclear as to the limits of FRA's jurisdiction, other than to indicate that FRA's safety rules cover points of connection where a light rail operation crosses the tracks of a freight railroad at grade. In this regard, SEPTA seeks guidance as to what safety issues FRA believes will exist where light rail operations are conducted on separate tracks within a shared right-of-way. The commenter also notes that the policy statement doesn't address the issue of
Similarly, APTA stated that instead of covering shared corridors, the final policy statements should be limited to scenarios where transit vehicles operate on or over the actual tracks of the general system. However, APTA agrees that the final policy statements should cover areas where there is no shared use of general system track if the operations include public highway/rail grade crossings or rail crossings at grade (diamond interlockings).
The AAR requests that FRA include a definition of the term “shared right-of-way” in the final policy statement, and also recommends that FRA address shared right-of-way operations on a case-by-case basis. In addition, the commenter states that intrusion detectors are often appropriate in shared rights of way, and notes that relevant factors to be considered include configuration of the right-of-way, elevation changes, and track separation distances.
The NSWG urges FRA to issue further guidance as to the likelihood of waiver being granted in a shared right-of-way situation where FRA has jurisdiction, including a chart setting forth which regulations could presumptively be waived. Also, the NSWG recommends that FRA and FTA develop guidelines with respect to track center lines. For example, the joint policy statement could state that transit trackage located 20 feet or more from the closest general system trackage, measured from center lines, normally would not require intrusion detection or extraordinary safety measures designed to avoid collisions.
San Diego Trolley contends that the proposal is unclear as to what intrusion detection steps will be required. The commenter notes that while there is the potential for derailments and other accidents to occur within a common corridor, this condition exists at many other locations where commuter rail, intercity passenger services, or freight services operate within a common corridor.
The California Transit Association commented that the proposal is unclear as to the issue of FRA jurisdiction over shared rights-of-way. The commenter stated that the potential hazard of intrusion in a shared corridor situation is better addressed by existing state safety oversight regulation and appropriate safety analysis covered in transit agency system safety program plans.
FRA appreciates the need for greater clarity with regard to shared rights-of-way. Several basic principles deserve emphasis. FRA exercises jurisdiction over all commuter operations, even if they use equipment considered light rail. All of FRA's regulations apply to such operations, absent a waiver. Therefore, how FRA exercises its jurisdiction in a corridor shared by light rail and conventional equipment is an issue only if the light rail operation meets the definition of urban rapid transit. The operation of rapid transit on track parallel to the tracks of a conventional railroad (i.e., parallel to track traversed by freight, intercity passenger, or commuter service) will not, in and of itself, trigger FRA jurisdiction. Where a rapid transit line merely shares a right-of-way with a conventional line but the two share no track, FRA does not consider that situation to involve shared use of the general system by the rapid transit line, and would not expect to receive a Petition for Approval of Shared Use. Nevertheless, even when a rapid transit operation and a conventional railroad share only a right-of-way, without sharing trackage, certain limited connections to the general system may still exist, and FRA will then have a regulatory role by ensuring safety at these points of connection. Three types of connections are of greatest concern: highway/rail grade crossings, railroad crossings at grade, and shared systems of train control at specific points.
For example, if the same tower operator authorizes and controls the movement of the trains of both a transit line and a freight railroad operating over a movable bridge, FRA will exercise jurisdiction at this point of connection, but only to the extent necessary to ensure safety. We have discussed our exercise of jurisdiction over rail crossings at grade above, under the heading of “Minor connections to the general railroad system” in the discussion of comments on “Shared Use and Temporal Separation.” Further, in the case of a rapid transit system and a conventional railroad sharing a highway-rail grade crossing, FRA will expect both systems to observe its rules on grade crossing signals that, for example, require prompt reports of warning system malfunctions, and, with the exception for brightness of the lights discussed below, will expect both operations to observe its rules concerning locomotive conspicuity (ditch lights). If a rapid transit system desires a waiver of the very few FRA rules that will apply at these points of connection, it should file a waiver request tailored to the specific rule(s) in question rather than the much more comprehensive Petition for Approval of Shared Use that FRA has recommended for situations involving shared trackage.
FRA sees no need to define “shared rights-of-way.” If the types of connections FRA has identified as triggering a limited exercise of its jurisdiction exist with regard to adjacent rapid transit and conventional lines, there is obviously a shared right-of-way. Where such operations take place on parallel tracks but lack any such connections, there may still be a shared right-of-way, but it has no regulatory significance.
Although FRA will limit its direct exercise of jurisdiction over transit systems operating in shared rights-of-way in the manner described above, FRA will, under the provisions of the partnership agreement entered into with FTA in October 1998, use its rail safety expertise in an advisory capacity to identify and make recommendations for the resolution of safety issues inherent in grant proposals seeking Federal funds from FTA. This working relationship will ensure that FTA has a fuller understanding of the safety risks involved in each shared right-of-way operation, and relevant information to shape the contents of the system safety plan that will be monitored by the state safety oversight program. With respect to the specific comments received concerning the use of intrusion detectors and recommendations to FRA about appropriate distances to require between transit trackage and the closest general system trackage, it would be beyond the scope of this policy statement to adopt regulations concerning track centers (the distance between the center lines of adjacent tracks) or intrusion detection. FRA has no rules on these subjects now. Should FRA deem it necessary to regulate intrusion detectors and/or track separation distances between transit and conventional equipment within a common right-of-way, FRA will initiate a notice-and-comment rulemaking aimed at setting standards. In the meantime, FRA and FTA will coordinate with rapid transit agencies and conventional railroads wherever there are concerns about sufficient intrusion detection and related safety measures designed to avoid a collision between rapid transit and conventional equipment.
The BLE, the only commenter to address this issue, limited its comments to waivers of 49 CFR part 240, because of an overriding concern for the manner in which light rail vehicle operators are
FRA recognizes the safety implications of permitting light rail vehicle operators to operate on the general system without receiving proper training and qualification. Waivers of the engineer certification requirements would be most likely in the case of temporally-separated operations on the general system that are part of a unified transit system with segments outside the shared use area. There, the basic reason for a waiver would be to ensure that the light rail operators are trained with the entire light rail system in mind, including its non-shared-use portions. In those situations, however, FRA is particularly concerned about what means of protection the waiver applicant would use to ensure that operator error does not result in different types of equipment being operated on the same track, and how the light rail system would ensure that when one set of operations begins, and the other one ends, there can be no overlap that would cause a collision. In response to the comment, FRA stresses that before a transit system could receive a waiver, it must satisfy FRA that the system safety plan developed under FTA's rules will provide for operators of light rail equipment to receive the necessary training and skills to safely operate on the general system. The transit system would have the burden to show that the light rail operators would receive a level of training, testing, and monitoring on the rules governing train operations appropriate for light rail operations on the general system. Any light rail system unable to meet this burden would have to fully comply with the requirements of part 240. Moreover, where a transit system intends to operate simultaneously on the same track with conventional equipment, FRA will not be inclined to waive the part 240 requirements. In that situation, FRA's paramount concern would be uniformity of training and qualifications of all those operating trains on the general system, regardless of the type of equipment.
The Delaware Valley Association of Rail Passengers supports most of the proposals in the policy statement, particularly the waiver concept. However, the commenter believes that waivers should not be granted under 49 CFR part 229, pertaining to ditch lights (also known as auxiliary lights; see 49 CFR 229.125, 133). Joint railroad-transit operations are often found in urban areas with many grade crossings, and these lights have been proven to reduce collisions between trains and highway traffic. Moreover, installation of such lights on light rail vehicles is not burdensome.
FRA shares the commenter's safety concerns. As noted in the chart contained in each proposed policy statement (explaining the likely treatment of waivers sought under part 229), and in FRA's discussion of likely waivers under part 229, FRA is unlikely to completely waive the requirement for auxiliary lights due to their importance for grade crossing safety. See 64 FR at 28241, 59053, and 59056. In this regard, FRA believes that the risk of accidents at grade crossings decreases if the equipment used by both conventional and light rail trains present the same distinctive profile to motor vehicle operators approaching grade crossings (i.e., a triangular arrangement of lights). Safety could be compromised if FRA permitted light rail systems to operate through the same grade crossings as conventional equipment with light arrangements that do not provide highway users with the same warning that a rail vehicle is approaching. However, as discussed in the section below concerning factors to address when seeking a waiver of part 229, waiver of the intensity requirement, so as to permit lights of a lesser candela, seems appropriate.
The City of Boca Raton, Florida commented that FRA should develop rules to allow and promote the installation of four-quadrant gate systems at all railroad grade crossings, and provide for funding mechanisms. The commenter states that if the gates have been installed, FRA's rules should allow whistle bans, at least at night, at these four-quadrant gate system locations.
FRA recently initiated a rulemaking concerning the use of locomotive horns at highway-rail grade crossings. On January 13, 2000, FRA published in the
One commenter contends that FRA improperly defines the terms “heavy rail” and “light rail” in the proposed policy statement. The commenter states that the term “heavy” has nothing to do with crashworthiness or car weight, but rather applies to the construction of the right-of-way, and suggests that it would be clearer to use the terms “rail rapid transit” for what is incorrectly called heavy rail, and “urban electric transit” for light rail.
Contrary to the commenter's statements, FRA's proposal properly distinguished between the terms “heavy rail” and “light rail.” After observing that some current and planned passenger operations in metropolitan areas are often referred to as “light rail,” FRA indicated that the term usually refers to lightweight passenger cars operating on rails in a right-of-way that is not separated from other traffic, such
To ensure that the regulated community is fully aware of how FRA views the extent of its jurisdiction over passenger operations and how it intends to exercise that jurisdiction, FRA is amending the discussion of its jurisdiction in its Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws, which is found in at appendix A of 49 CFR part 209. In its proposed policy, FRA included an extensive discussion of its legal authority over railroad safety, including the extensive legislative history of the term “railroad” as used in the Federal railroad safety statutes. 64 FR 59047-59049. FRA does not repeat that discussion here, but incorporates it by reference as the basis for its policy on the extent and exercise of its jurisdiction over passenger operations.
Based on comments received, FRA is making some changes to its proposed policy. The definition of “commuter railroad” is being amended to make clear that certain specific operations named as commuter authorities by statute are considered commuter railroads under the safety laws regardless of how the criteria that distinguish other railroads as “commuter” in nature may apply to them. FRA believes this change is necessary in order to ensure that railroads that Congress considers commuter railroads are within FRA's exercise of its jurisdiction without the need for extensive debate about the nature of their operations.
For reasons explained in the discussion of comments, we are also revising the definitions of “commuter railroad” and “urban rapid transit” to remove as a consideration whether “a substantial portion” of a system's operations is devoted to moving people from station to station within a city, and to focus instead on whether such service is a “primary function” of the system or “an incidental function” of its service.
We are further revising the jurisdictional statement to facilitate determinations about whether a system is a commuter railroad or urban rapid transit system. We have included two presumptions, one that adopts statutory determinations of a system's characterization, and the other that presumes a system is rapid transit if it meets a certain description. Where neither presumption applies, we have provided a list of criteria that need to be considered in making the commuter/rapid transit determination.
FRA is also revising its statement of policy to make clear that highway-rail grade crossings used by both a conventional railroad and a light rail operation provide a sufficient connection to warrant a limited exercise of FRA's jurisdiction over the light rail operator. In the proposal, that point was made, but under a heading concerning connections not sufficient to trigger the exercise of jurisdiction. The final policy statement places the discussion more appropriately and slightly expands it.
Much of FRA's proposed statement of policy concerned how the agency intended to address waiver requests concerning shared use of the general system by light rail and conventional operations. FRA provided guidance on how interested parties could file such waiver requests, what they should address, and what waivers are likely under particular circumstances. FRA has amended its policy to reflect various comments received on the proposal. Moreover, FRA has concluded that this policy, like its policy on the extent and exercise of its safety jurisdiction, should reside in the CFR for easy future reference. Therefore, we are adding a new appendix to 49 CFR part 211, which contains FRA's rules of practice, including those concerning waivers.
Several commenters requested that FRA provide a means by which those developing light rail systems could obtain a jurisdictional determination from FRA without first preparing an entire waiver petition. This makes good sense, because an early jurisdictional determination could affect planning for a system in significant ways. Of course, anyone is always free to request such determinations from FRA. The revised policy statement merely reiterates this point, recommends where such requests should be submitted, and suggests that requesting such determinations may be a useful step to take well before filing a waiver petition.
Another subject of great interest to commenters was whether the light rail operator must always get the general system railroad to join in any petition for waiver or approval of shared use. Our proposed statement included a request that the light rail operator and “all other affected railroads” file the petition jointly. In the discussion of comments, above, we explained why this would be very useful but is not required, and pointed out that other affected railroads may need to file their own petitions if the planned operations somehow preclude their compliance with FRA's rules. Even if they do not need to file a petition, of course, all affected railroads will have an opportunity to comment and appear at any hearing that is requested on the light rail operator's petition. Our final policy statement explains these points.
Many commenters indicated the need for greater clarity in FRA's policy concerning situations where the light rail operator and conventional railroad do not share trackage but have operations that are otherwise sufficiently connected to warrant a limited exercise of FRA's jurisdiction. FRA has included a more thorough discussion of this subject to the final policy statement. The statement makes clear that, where minimal connections exist in a common right-of-way (even where the two operations use their respective tracks simultaneously), the light rail operator will be subject to only those safety rules pertinent to the connection that exists, and that any waiver request should be limited to just those rules.
The new Appendix A to part 211, therefore, will include a discussion of which railroads need to file waiver petitions in shared use or shared right-of-way situations, the general factors that should be addressed in a Petition for Approval of Shared Use, general considerations concerning petitions for waiver where the right-of-way is shared but the connections are limited, factors to address in any petition concerning specific rules, and the areas where waivers are likely in shared use situations (including a chart).
Railroad safety, Enforcement Procedures.
Railroad safety, Rules of Practice.
In consideration of the foregoing, chapter II, subtitle B of title 49, Code of Federal Regulations is amended as follows:
1. The authority citation for part 209 is revised to read as follows:
49 U.S.C. 20103, 20107, 20111, 20112, 20114, and 49 CFR 1.49.
For example, all of FRA's regulations exclude from their reach railroads whose entire operations are confined to an industrial installation (i.e., “plant railroads”), such as those in steel mills that do not go beyond the plant's boundaries. E.g., 49 CFR 225.3(a)(1) (accident reporting regulations). Some rules exclude passenger operations that are not part of the general railroad system (such as some tourist railroads) only if they meet the definition of “insular.” E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade crossing signal safety). Other regulations exclude not only plant railroads but all other railroads that are not operated as a part of, or over the lines of, the general railroad system of transportation. E.g., 49 CFR 214.3 (railroad workplace safety).
By “general railroad system of transportation,” FRA refers to the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas. Much of this network is interconnected, so that a rail vehicle can travel across the nation without leaving the system. However, mere physical connection to the system does not bring trackage within it. For example, trackage within an industrial installation that is connected to the network only by a switch for the receipt of shipments over the system is not a part of the system.
Moreover, portions of the network may lack a physical connection but still be part of the system by virtue of the nature of operations that take place there. For example, the Alaska Railroad is not physically connected to the rest of the general system but is part of it. The Alaska Railroad exchanges freight cars with other railroads by car float and exchanges passengers with interstate carriers as part of the general flow of interstate commerce. Similarly, an intercity high speed rail system with its own right of way would be part of the general system although not physically connected to it. The presence on a rail line of any of these types of railroad operations is a sure indication that such trackage is part of the general system: the movement of freight cars in trains outside the confines of an industrial installation, the movement of intercity passenger trains, or the movement of commuter trains within a metropolitan or suburban area. Urban rapid transit operations are ordinarily not part of the general system, but may have sufficient connections to that system to warrant exercise of FRA's jurisdiction (
The boundaries of the general system are not static. For example, a portion of the system may be purchased for the exclusive use of a single private entity and all connections, save perhaps a switch for receiving shipments, severed. Depending on the nature of the operations, this could remove that portion from the general system. The system may also grow, as with the establishment of intercity service on a brand new line. However, the same trackage cannot be both inside and outside of the general system depending upon the time of day. If trackage is part of the general system, restricting a certain type of traffic over that trackage to a particular portion of the day does not change the nature of the line—it remains the general system.
4. Appendix A to 49 CFR part 209 is further amended by adding the following paragraphs immediately before the section called “Extraordinary Remedies:”
Under the Federal railroad safety laws, FRA has jurisdiction over all railroads except “rapid transit operations in an urban area that are not connected to the general railroad system of transportation.” 49 U.S.C. 20102. Within the limits imposed by this authority, FRA exercises jurisdiction over all railroad passenger operations, regardless of the equipment they use, unless FRA has specifically stated below an exception to its exercise of jurisdiction for a particular type of operation. This policy is stated in general terms and does not change the reach of any particular regulation under its applicability section. That is, while FRA may generally assert jurisdiction over a type of operation here, a particular regulation may exclude that kind of operation from its reach. Therefore, this statement should be read in conjunction with the applicability sections of all of FRA's regulations.
FRA exercises jurisdiction over all intercity passenger operations. Because of the nature of the service they provide, standard gage intercity operations are all considered part of the general railroad system, even if not physically connected to other portions of the system. Other intercity passenger operations that are not standard gage (such as a magnetic levitation system) are within FRA's jurisdiction even though not part of the general system.
FRA exercises jurisdiction over all commuter operations. Congress apparently intended that FRA do so when it enacted the Federal Railroad Safety Act of 1970, and made that intention very clear in the 1982 and 1988 amendments to that act. FRA has attempted to follow that mandate consistently. A commuter system's connection to other railroads is not relevant under the rail safety statutes. In fact, FRA considers commuter railroads to be part of the general railroad system regardless of such connections.
FRA will presume that an operation is a commuter railroad if there is a statutory determination that Congress considers a particular service to be commuter rail. For example, in the Northeast Rail Service Act of 1981, 45 U.S.C. 1104(3), Congress listed specific commuter authorities. If that presumption does not apply, and the operation does not meet the description of a system that is presumptively urban rapid transit (see below), FRA will determine whether a system is commuter or urban rapid transit by analyzing all of the system's pertinent facts. FRA is likely to consider an operation to be a commuter railroad if:
• The system serves an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area,
• The system's primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, and moving passengers from station to station within the immediate urban area is, at most, an incidental function, and
• The vast bulk of the system's trains are operated in the morning and evening peak periods with few trains at other hours.
Examples of commuter railroads include Metra and the Northern Indiana Commuter Transportation District in the Chicago area; Virginia Railway Express and MARC in the Washington area; and Metro-North, the Long Island Railroad, New Jersey Transit, and the Port Authority Trans Hudson (PATH) in the New York area.
The federal railroad safety statutes give FRA authority over “commuter or other short-haul railroad passenger service in a metropolitan or suburban area.” 49 U.S.C. 20102. This means that, in addition to commuter service, there are other short-haul types of service that Congress intended that FRA reach. For example, a passenger system designed primarily to move intercity travelers from a downtown area to an airport, or from an airport to a resort area, would be one that does not have the transportation of commuters within a metropolitan area as its primary purpose. FRA would ordinarily exercise jurisdiction over such a system as “other short-haul service” unless it meets the definition of urban rapid transit and is not connected in a significant way to the general system.
One type of short-haul passenger service requires special treatment under the safety statutes: “rapid transit operations in an urban area.” Only these operations are excluded from FRA's jurisdiction, and only if they are “not connected to the general railroad system.” FRA will presume that an operation is an urban rapid transit operation if the system is not presumptively a commuter railroad (see discussion above) the operation is a subway or elevated operation with its own track system on which no other railroad may operate, has no highway-rail crossings at grade, operates within an urban area, and moves passengers from station to station within the urban area as one of its major functions.
Where neither the commuter railroad nor urban rapid transit presumptions applies, FRA will look at all of the facts pertinent to a particular operation to determine its proper characterization. FRA is likely to consider an operation to be urban rapid transit if:
• The operation serves an urban area (and may also serve its suburbs),
• Moving passengers from station to station within the urban boundaries is a major function of the system and there are multiple station stops within the city for that purpose (such an operation could still have the transportation of commuters as one of its major functions without being considered a commuter railroad), and
• The system provides frequent train service even outside the morning and evening peak periods.
Examples of urban rapid transit systems include the Metro in the Washington, D.C. area, CTA in Chicago, and the subway systems in New York, Boston, and Philadelphia. The type of equipment used by such a system is not determinative of its status. However, the kinds of vehicles ordinarily associated with street railways, trolleys, subways, and elevated railways are the types of vehicles most often used for urban rapid transit operations.
FRA can exercise jurisdiction over a rapid transit operation only if it is connected to the general railroad system, but need not exercise jurisdiction over every such operation that is so connected. FRA is aware of several different ways that rapid transit operations can be connected to the general system. Our policy on the exercise of jurisdiction will depend upon the nature of the connection(s). In general, a connection that involves operation of transit equipment as a part of, or over the lines of, the general system will trigger FRA's exercise of jurisdiction. Below, we review some of the more common types of connections and their effect on the agency's exercise of jurisdiction. This is not meant to be an exhaustive list of connections.
Certain types of connections to the general railroad system will cause FRA to exercise jurisdiction over the rapid transit line
Another connection to the general system sufficient to warrant FRA's exercise of jurisdiction is a railroad crossing at grade where the rapid transit operation and other railroad cross each other's tracks. In this situation, FRA will exercise its jurisdiction sufficiently to assure safe operations over the at-grade railroad crossing. FRA will also exercise jurisdiction to a limited extent over a rapid transit operation that, while not operated on the same tracks as the conventional railroad, is connected to the general system by virtue of operating in a shared right-of-way involving joint control of trains. For example, if a rapid transit line and freight railroad were to operate over a movable bridge and were subject to the same authority concerning its use (
Although FRA could exercise jurisdiction over a rapid transit
Mere use of a common right-of-way or corridor in which the conventional railroad and rapid transit operation do not share any means of train control, have a rail crossing at grade, or operate over the same highway-rail grade crossings would not trigger FRA's exercise of jurisdiction. In this context, the presence of intrusion detection devices to alert one or both carriers to incursions by the other one would not be considered a means of common train control. These common rights of way are often designed so that the two systems function completely independently of each other. FRA and FTA will coordinate with rapid transit agencies and railroads wherever there are concerns about sufficient intrusion detection and related safety measures designed to avoid a collision between rapid transit trains and conventional equipment.
Where these very minimal connections exist, FRA will not exercise jurisdiction unless and until an emergency situation arises involving such a connection, which is a very unlikely event. However, if such a system is properly considered a rail fixed guideway system, FTA's rules (49 CFR part 659) will apply to it.
FTA's rules on rail fixed guideway systems (49 CFR part 659) apply to any rapid transit systems or portions thereof not subject to FRA's rules. On rapid transit systems that are not sufficiently connected to the general railroad system to warrant FRA's exercise of jurisdiction (as explained above), FTA's rules will apply exclusively. On those rapid transit systems that are connected to the general system in such a way as warrant exercise of FRA's jurisdiction, only those portions of the rapid transit system that are connected to the general system will generally be subject to FRA's rules.
A rapid transit railroad may apply to FRA for a waiver of any FRA regulations.
5. The authority citation for part 211 is revised to read as follows:
49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 CFR 1.49.
1. By statute, the Federal Railroad Administration (FRA) may grant a waiver of any rule or order if the waiver “is in the public interest and consistent with railroad safety.” 49 U.S.C. 20103(d). Waiver petitions are reviewed by FRA's Railroad Safety Board (the “Safety Board”) under the provisions of 49 CFR part 211. Waiver petitions must contain the information required by 49 CFR 211.9. The Safety Board can, in granting a waiver, impose any conditions it concludes are necessary to assure safety or are in the public interest. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety.
2. Light rail equipment, commonly referred to as trolleys or street railways, is not designed to be used in situations where there is a reasonable likelihood of a collision with much heavier and stronger conventional rail equipment. However, existing conventional railroad tracks and rights-of-way provide attractive opportunities for expansion of light rail service.
3. Light rail operators who intend to share use of the general railroad system trackage with conventional equipment and/or whose operations constitute commuter service (
4. Shared use of track refers to situations where light rail transit operators conduct their operations over the lines of the general system, and includes light rail operations that are wholly separated in time (temporally separated) from conventional operations as well as light rail operations operating on the same trackage at the same time as conventional rail equipment (simultaneous joint use). Where shared use of general system trackage is contemplated, FRA believes a comprehensive waiver request covering all rules for which a waiver is sought makes the most sense. FRA suggests that a petitioner caption such a waiver petition as a Petition for Approval of Shared Use so as to distinguish it from other types of waiver petitions. The light rail operator should file the petition. All other affected railroads will be able to participate in the waiver proceedings by commenting on the petition and providing testimony at a hearing on the petition if anyone requests such a hearing. If any other railroad will be affected by the proposed operation in such a way as to necessitate a waiver of any FRA rule, that railroad may either join with the light rail operator in filing the comprehensive petition or file its own petition.
5. In situations where the light rail operator is an urban rapid transit system that will share a right-of-way or corridor with the conventional railroad but not share trackage, any waiver petition should cover only the rules that may apply at any significant points of connection between the rapid transit line and the other railroad. A Petition for Approval of Shared Use would not be appropriate in such a case.
Where a light rail operator is uncertain whether the planned operation will be subject to FRA's safety jurisdiction and, if so, to what extent, the operator may wish to obtain FRA's views on the jurisdictional issues before filing a waiver petition. In that case, the light rail operator (here including a transit authority that may not plan to actually operate the system itself) should write to FRA requesting such a determination. The letter should be addressed to Chief Counsel, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 10, Washington, DC 20590, with a copy to the Associate Administrator for Safety at the same address at Mail Stop 25. The letter should address the criteria (found in 49 CFR part 209, appendix A) FRA uses to determine whether it has jurisdiction over a rail operation and to distinguish commuter from urban rapid transit service. A complete description of the nature of the contemplated operation is essential to an accurate determination. FRA will attempt to respond promptly to such a request. Of course, FRA's response will be based only on the facts as presented by the light rail operator. If FRA subsequently learns that the facts are different from those presented or have changed substantially, FRA may revise its initial determination.
1. Like all waiver petitions, a Petition for Approval of Shared Use will be reviewed by the Safety Board. A non-voting FTA liaison to the Safety Board will participate in an
2. FRA resolves each waiver request on its own merits based on the information presented and the agency's own investigation of the issues. In general, the greater the safety risks inherent in a proposed operation the greater will be the mitigation measures required. While FRA cannot state in advance what kinds of waivers will be granted or denied, we can provide guidance to those who may likely be requesting waivers to help ensure that their petitions address factors that FRA will no doubt consider important.
3. FRA's procedural rules give a general description of what any waiver petition should contain, including an explanation of the nature and extent of the relief sought; a description of the persons, equipment, installations, and locations to be covered by the waiver; an evaluation of expected costs and benefits; and relevant safety data. 49 CFR 211.9. The procedural rules, of course, are not specifically tailored to situations involving light rail operations over the general system, where waiver petitions are likely to involve many of FRA's regulatory areas. In such situations, FRA suggests that a Petition for Approval of Shared Use address the following general factors.
A.
• If the light rail line will operate on any segments (
• You should describe precisely what the respective hours of operation will be for each type of equipment on the shared use segments. If light rail and conventional operations will occur only at different times of day, describe what means of protection will ensure that the different types of equipment are not operated simultaneously on the same track, and how protection will be provided to ensure that, where one set of operations begins and the other ends, there can be no overlap that would possibly result in a collision.
• If the light rail and conventional operations will share trackage during the same time periods, the petitioners will face a steep burden of demonstrating that extraordinary safety measures will be taken to adequately reduce the likelihood of a collision between conventional and light rail equipment to the point where the safety risks associated with joint use would be acceptable. You should explain the nature of such simultaneous joint use, the system of train control, the frequency and proximity of both types of operations, the training and qualifications of all operating personnel in both types of operations, and all methods that would be used to prevent collisions. You should also include a quantitative risk assessment concerning the risk of collision between the light rail and conventional equipment under the proposed operating scenario.
B.
(2) Given the structural incompatibility of light rail and conventional equipment, FRA has grave concerns about the prospect of operating these two types of equipment simultaneously on the same track. If the light rail and conventional operations will share trackage during the same time periods, you should provide an engineering analysis of the light rail equipment's resistance to damage in various types of collisions, including a worst case scenario involving a failure of the collision avoidance systems resulting in a collision between light rail and conventional equipment at track speeds.
C.
(1) Most light rail operations that entail some shared use of the general system will also have segments that are not on the general system. FTA's rules on rail fixed guideway systems will probably apply to those other segments. If so, the petition for waiver of FRA's rules should explain how the system safety program plan adopted under FTA's rules may affect safety on the portions of the system where FRA's rules apply. Under certain circumstances, effective implementation of such a plan may provide FRA sufficient assurance that adequate measures are in place to warrant waiver of certain FRA rules.
(2) In its petition, the light rail operator may want to certify that the subject matter addressed by the rule to be waived is addressed by the system safety plan and that the light rail operation will be monitored by the state safety oversight program. That is likely to expedite FRA's processing of the petition. FRA will analyze information submitted by the petitioner to demonstrate that a safety matter is addressed by the light rail operator's system safety plan. Alternately, conditional approval may be requested at an early stage in the project, and FRA would thereafter review the system safety program plan's status to determine readiness to commence operations. Where FRA grants a waiver, the state agency will oversee the area addressed by the waiver, but FRA will actively participate in partnership with FTA and the state agency to address any safety problems.
D.
Even where there is no shared use of track, light rail operators may be subject to certain FRA rules based on limited, but significant connections to the general system.
1.
2.
3.
In any of these shared right-of-way situations involving significant connections, the light rail operator may petition for a waiver of any rules that apply to its activities.
Operators of light rail systems are likely to apply for waivers of many FRA rules. FRA offers the following suggestions on factors petitioners may want to address concerning specific areas of regulation. (All “part” references are to title 49 CFR.) Parts 209 (Railroad Safety Enforcement Procedures), 211 (Rules of Practice), 212 (State Safety Participation), and 216 (Special Notice and Emergency Order Procedures) are largely procedural rules that are unlikely to be the subject of waivers, so those parts are not discussed further. For segments of a light rail line not involving operations over the general system, assuming the light rail operation meets the definition of “rapid transit,” FRA's standards do not apply and the petition need not address those segments with regard to each specific rule from which waivers are sought with regard to shared use trackage.
A.
B.
C.
D.
E.
A.
If the light rail equipment would normally meet the standards in this rule, there would be no reason to seek a waiver of it. If it appears that the light rail system would neither meet the standards nor fit within the exception, the petition should address noise mitigation measures used on the system, especially as part of a system safety program. Note, however, that FRA lacks the authority to waive certain Environmental Protection Agency standards (40 CFR part 201) that underlie this rule. See 49 CFR 210.11(a).
B.
C.
D.
E.
(2) FRA is not likely to waive completely the provision (section 229.125) of this rule concerning auxiliary lights designed to warn highway motorists of an approaching train. In order to reduce the risk of grade crossing accidents, it is important that all locomotives used by both conventional railroads and light rail systems present the same distinctive profile to motor vehicle operators approaching grade crossings on the general railroad system. If uniformity is sacrificed by permitting light rail systems to operate locomotives through the same grade crossings traversed by conventional trains with light arrangements placed in different locations on the equipment, safety could be compromised. Accordingly, the vehicle design should maintain the triangular pattern required of other locomotives and cab cars to the extent practicable.
(3) FRA is aware that light rail headlights are likely to produce less than 200,000 candela. While some light rail operators may choose to satisfy the requirements of section 229.125 by including lights on their equipment of different candlepower controlled by dimmer switches, the headlights on the majority of light rail vehicles will likely not meet FRA's minimum requirement. However, based on the nature of the operations of light rail transit, FRA recognizes that waivers of the minimum candela requirement for transit vehicle headlights seems appropriate.
F.
(2) FRA may grant exemptions from the statutory safety appliance requirements in 49 U.S.C. 20301-20305 only if application of such requirements would “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations.” 49 U.S.C. 20306. The exemption for technological improvements was originally enacted to further the implementation of a specific type of freight car, but the legislative history shows that Congress intended the exemption to be used elsewhere so that “other types of railroad equipment might similarly benefit.” S. Rep. 96-614 at 8 (1980), reprinted in 1980 U.S.C.C.A.N. 1156,1164.
(3) FRA recognizes the potential public benefits of allowing light rail systems to take advantage of underutilized urban freight rail corridors to provide service that, in the absence of the existing right-of-way, would be prohibitively expensive. Any petitioner requesting an exemption for technological improvements should carefully explain how being forced to comply with the existing statutory safety appliance requirements would conflict with the exemption exceptions set forth at 49 U.S.C. 20306. The petition should also show that granting the exemption is in the public interest and is consistent with assuring the safety of the light rail operator's employees and passengers.
G.
(2) FRA recognizes that due to the unique characteristics of light rail equipment, some of these provisions may be irrelevant to light rail operation, and that others may not fit properly in the context of light rail operations (e.g., crewmembers typically do not perform yard duties from positions outside and adjacent to the light rail vehicle or near the vehicle's doors). However, to the extent that the light rail operation encompasses the safety risks addressed by the regulatory provisions of this part, a waiver petition should explain precisely how the light rail system's practices will provide for the safe operation of its passenger equipment. The petition should focus on the design specifications of the equipment, and explain how the light rail system's operating practices, and its intended use of the equipment, will satisfy the safety purpose of the regulations while providing at least an equivalent level of safety.
H.
A.
(2) There are no comparable OSHA standards protecting roadway workers. The petition should explain which operator is responsible for track and signal work on the shared segments. If the light rail operator does this work, the petition should explain how the light rail operator protects these workers. However, to the extent that protection varies significantly from FRA's rules, a waiver permitting use of the light rail system's standards could be very confusing to train crews of the conventional railroad who follow FRA's rules elsewhere. A waiver of this rule is unlikely. A petition should address how such confusion would be avoided and safety of roadway workers would be ensured.
B.
C.
D.
E.
F.
(2) Any waiver FRA may grant in the accident/incident reporting area would have no effect on FRA's authority to investigate such incidents or on the duties of light rail operators and any other affected railroads to cooperate with those investigations. See sections 225.31 and 225.35 and 49 U.S.C. 20107 and 20902. Light rail operators should anticipate that FRA will investigate any serious accident or injury that occurs on the shared use portion of their lines, even if it occurs during hours when only the light rail trains are operating. Moreover, there may be instances when FRA will work jointly with FTA and the state agency to investigate the cause of a transit accident that occurs off the general system under circumstances that raise concerns about the safety of operations on the shared use portions. For example, if a transit operator using the same light rail equipment on the shared and non-shared-use portions of its operation has a serious accident on the non-shared-use portion, FRA may want to determine whether the cause of the accident pointed to a systemic problem with the equipment that might impact the transit system's operations on the general system. Similarly, where human error might be a factor, FRA may want to determine whether the employee potentially at fault also has safety responsibilities on the general system and, if so, take appropriate action to ensure that corrective action is taken. FRA believes its statutory investigatory authority extends as far as necessary to address any condition that might reasonably be expected to create a hazard to railroad operations within its jurisdiction.
G.
(2) If such a statutory waiver is desired, the light rail system will need to assure FRA that the waiver of compliance is in the public interest and consistent with railroad safety. The waiver petition should include a discussion of what fatigue management strategies will be in place for each category of covered employees in order to minimize the effects of fatigue on their job performance. However, FRA is unlikely to grant a statutory waiver covering employees of a light rail operation who dispatch the trains of a conventional railroad or maintain a signal system affecting shared use trackage.
H.
I.
J.
1. The foregoing discussion of factors to address in a petition for approval of shared use concerns all such petitions and, accordingly, is quite general. FRA is willing to provide more specific guidance on where waivers may be likely with regard to light rail operations that are time-separated from conventional operations. FRA's greatest concern with regard to shared use of the general system is a collision between light rail and conventional trains on the same track. Because the results could well be catastrophic, FRA places great emphasis on avoiding such collisions. The surest way to guarantee that such collisions will not occur is to strictly segregate light rail and conventional operations by time of day so that the two types of equipment never share the same track at the same time. This is not to say that FRA will not entertain waiver petitions that rely on other methods of collision avoidance such as sophisticated train control systems. However, petitioners who do not intend to separate light rail from conventional operations by time of day will face a steep burden of demonstrating an acceptable level of safety. FRA does not insist that all risk of collision be eliminated. However, given the enormous severity of the likely consequences of a collision, the demonstrated risk of such an event must be extremely remote.
2. There are various ways of providing such strict separation by time. For example, freight operations could be limited to the hours of midnight to 5 a.m. when light rail operations are prohibited. Or, there might be both a nighttime and a mid-day window for freight operation. The important thing is that the arrangement not permit simultaneous operation on the same track by clearly defining specific segments of the day when only one type of operation may occur. Mere spacing of train movements by a train control system does not constitute this temporal separation.
3. FRA is very likely to grant waivers of many of its rules where complete temporal separation between light rail and conventional operations is demonstrated in the waiver request. The chart below lists each of FRA's railroad safety rules and provides FRA's view on whether it is likely to grant a waiver in a particular area where temporal separation is assured. Where the “Likely Treatment” column says “comply” a waiver is not likely, and where it says “waive” a waiver is likely. Of course, FRA will consider each petition on its own merits and one should not presume, based on the chart, that FRA will grant or deny any particular request in a petition. This chart is offered as general guidance as part of a statement of policy, and as such does not alter any safety rules or obligate FRA to follow it in every case. This chart assumes that the operations of the local rail transit agency on the general railroad system are completely separated in time from conventional railroad operations, and that the light rail operation poses no atypical safety hazards. FRA's procedural rules on matters such as enforcement (49 CFR parts 209 and 216), and its statutory authority to investigate accidents and injuries and take emergency action to address an imminent hazard of death or injury, would apply to these operations in all cases.
4. Where waivers are granted, a light rail operator would be expected to operate under a system safety plan developed in accordance with the FTA state safety oversight program. The state safety oversight agency would be responsible for the safety oversight of the light rail operation, even on the general system, with regard to aspects of that operation for which a waiver is granted. (The “Comments” column of the chart shows “State Safety Oversight” where waivers conditioned on such state oversight are likely.) FRA will coordinate with FTA and the state agency to address any serious safety problems. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety. On certain subjects where waivers are not likely, the “Comments” column of the chart makes special note of some important regulatory requirements that the light rail system will have to observe even if it is not primarily responsible for compliance with that particular rule.
Bureau of the Census, Commerce.
Final rule.
The Bureau of the Census (Census Bureau) is amending the Foreign Trade Statistics Regulations (FTSR) to clarify the responsibilities of exporters and forwarding or other agents in completing the Shipper's Export Declaration (SED), or filing the information electronically using the Automated Export System (AES), and to clarify provisions for authorizing forwarding or other agents to prepare and file a paper SED or file the export information electronically using the AES on behalf of a principal party in interest. This rule also clarifies provisions on electronic transmissions of intangible transfers of software and technology; updates provisions related to mail shipments and certain related SED exemptions; notifies the public that in the near future the Census Bureau will revise appropriate “exporter” fields on the paper SED forms and the AES record to read “U.S. principal party in interest,” and require the reporting of the U.S. principal party in interest Employer Identification Number (EIN) or other identification number on the SED or AES record; clarifies what information should be listed in these newly revised blocks and the equivalent fields on the AES record; and clarifies provisions for providing import verification information to the Census Bureau.
Requests for additional information should be directed to C. Harvey Monk, Jr., Chief, Foreign Trade Division, U.S. Census Bureau, Room 2104, Federal Building 3, Washington, DC 20233-6700, by telephone on (301) 457-2255, or by fax on (301) 457-2645.
The Census Bureau is responsible for collecting, compiling, and publishing trade statistics for the United States. These data are used by various Federal Government agencies and the private sector for planning and policy development. In order to accomplish its mission, the Census Bureau must receive accurate statistical information from the trade community. The Shipper's Export Declaration (SED) and the Automated Export System (AES) records are the primary vehicles used for collecting such trade data, and the information contained therein is used by the Census Bureau for statistical purposes only and is confidential under the provisions of Title 13, United States Code (U.S.C.), Section 301(g). The Census Bureau's primary objective in this rule is to ensure the accuracy of its trade statistics and to clarify reporting responsibilities for all parties involved in export transactions.
As such, the Census Bureau is amending the Foreign Trade Statistics Regulations (FTSR), 15 Code of Federal Regulations (CFR) Part 30, to clarify responsibilities of exporters and forwarding or other agents in completing the SED, to notify the public that in the near future the Census Bureau will revise the title of the “exporter” blocks on the paper SED forms and the “Exporter” field on the AES record from reading “Exporter” to read “U.S. principal party in interest,” and to clarify in this rule what information should be listed in these newly revised blocks and the equivalent fields on the AES record. This rule defines new terms, including “U.S. principal party in interest” and “routed export transaction,” and clarifies existing ones (notably the definition of “exporter”) for purposes of completing the SED or AES record. The rule clarifies provisions for authorizing a forwarding or other agent to prepare and file an SED or the AES record on behalf of a principal party in interest.
The Census Bureau initially published a notice of proposed rulemaking on this subject in the
In addition to issuing final rules on the provisions addressed in the proposed rulemakings, the Census Bureau and BXA also are issuing final rules in these notices to amend provisions regarding the reporting of value of exports in export transactions, exports of mail shipments via the U.S. Postal Service, amending certain provisions for miscellaneous exemptions and exports transhipped through Canada to a third destination, provisions regarding the electronic transmission of software and technology and other intangible transfers, and provisions for providing import information to the Census Bureau.
The Census Bureau is amending the FTSR to specify that electronic transmissions to be received outside the United States and other intangible transfers, such as downloaded software and technology, are not subject to the FTSR, but may be subject to export control requirements under other laws and regulations. The Census Bureau is further amending the FTSR to clarify making corrections to SEDs submitted to the U.S. Postal Service and to increase the value limitation for mail shipments that do not require an SED or AES record from $500 or under to $2,500 or under. The Census Bureau is also amending the FTSR to clarify certain
The Census Bureau received 18 comments on the supplementary notice of proposed rulemaking published in the
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The Census Bureau is amending Title 15, Code of Federal Regulations (CFR), Part 30, to address the issues raised by commentors to the supplementary notice of proposed rulemaking to: (A) Define the term “exporter,” for purposes of completing the SED or AES record, as the U.S. principal party in interest in the export transaction; (B) Clarify the reporting responsibilities of the U.S. principal party in interest and the forwarding or other agent in completing the SED or AES record; (C) Clarify provisions for authorizing a forwarding or other agent to prepare and file an SED or file the information electronically using the AES; and (D) Clarify the documentation and compliance responsibilities of parties involved in the export transaction. For purposes of this rule, all references to preparing and filing the paper SED also pertain to preparing and filing the AES electronic record.
This rule clarifies the responsibilities of the exporter (U.S. principal party in interest) and the forwarding or other agent in preparing the SED or AES record. For export shipments, the Census Bureau recognizes “routed export transactions” as a subset of “export transactions.” A routed export transaction is where the foreign principal party in interest authorizes a U.S. forwarding or other agent to facilitate export of items from the United States.
The “exporter” and “EIN” fields on the SED and AES records are being revised to read U.S. principal party in interest.” For purposes of completing the SED or AES record, use the definition found in section 30.4(a)(1) of the FTSR for “Exporter (principal party in interest)” to determine who should be listed in the new “U.S. principal party in interest” block/field of the SED or AES record. The FTSR defines the term exporter (U.S. principal party in interest) as the person in the United States that receives the primary benefit, monetary or otherwise, of the export transaction. Generally, that person is the U.S. seller, manufacturer, order party, or foreign entity. The foreign entity must be listed as the U.S. principal party in interest on the SED or AES record, if it is
Keep in mind, however, that the EAR defines the exporter as the person in the United States who has the authority of a principal party in interest to determine and control the sending of items out of the United States (see EAR 15 CFR Part 772). In some transactions, this definition permits the forwarding or other agent to apply for a license and be the exporter, as defined in the EAR.
The person who signs the SED must be in the United States at the time of signing. If a U.S. manufacturer sells merchandise directly to a foreign principal party in interest for export, the U.S. manufacturer must be listed as the U.S. principal party in interest on the SED or AES record. If a U.S. manufacturer sells merchandise, as a domestic sale, to a U.S. buyer (wholesaler/distributor) and that U.S. buyer sells the merchandise to a foreign principal for export, the U.S. buyer (wholesaler/distributor) must be listed as the U.S. principal party in interest on the SED or AES record. If a U.S. order party, as defined in § 30.4(a)(1)(iii) of this rule, arranges for the sale and export of merchandise to a foreign principal party in interest directly, the U.S. order party must be listed as the U.S. principal party in interest on the SED or AES record. When a foreign entity is
The forwarding or other agent is that person in the United States who is authorized by a principal party in interest to perform the services required to facilitate the export of items from the United States. The forwarding or other agent must be authorized by the exporter (U.S. principal party in interest), or in the case of a routed export transaction, the foreign principal party in interest. In a routed export transaction, the forwarding or other agent may be the exporter for compliance purposes under the EAR. However, the forwarding or other agent is never the “U.S. principal party in interest” on the paper SED or in the “U.S. principal party in interest” field of the AES record, except when the forwarding or other agent acts as an “order party.”
The exporter (U.S. principal party in interest) can prepare and file the SED or AES record, or it can authorize a forwarding or other agent to prepare and file the SED or AES record on its behalf. If the exporter (U.S. principal party in interest) authorizes a forwarding or other agent to complete the SED or AES record on its behalf, the exporter (U.S. principal party in interest) is responsible for: (A) Providing the forwarding or other agent with the information necessary to complete the SED or AES record; (B) Providing the
The forwarding or other agent, if authorized by a principal party in interest, is responsible for: (A) Preparing the SED or AES record, based on information received from the exporter (U.S. principal party in interest) or other parties in the transaction; (B) Maintaining documentation to support the information reported on the SED or AES record; and (C) Upon request, providing the exporter (U.S. principal party in interest) with a copy of the export information filed in the form of a completed SED, an electronic facsimile, or in any other manner prescribed by the exporter (U.S. principal party in interest).
In a routed export transaction, where a foreign principal party in interest designates a U.S. forwarding or other agent to act on its behalf to prepare and file the SED or AES record, the exporter (U.S. principal party in interest) must provide the forwarding or other agent with the following information to assist them in preparing the SED or AES record: (1) Name and address of the U.S. principal party in interest; (2) U.S. principal party in interest's IRS, EIN; (3) Point of origin (State or Foreign Trade Zone (FTZ)); (4) Schedule B description of commodities; (5) Domestic (D), foreign (F), or Foreign Military Sale (FMS) (M) code; (6) Schedule B Number; (7) Quantity/unit of measure; (8) Value; (9) Upon request by the foreign principal party in interest or its agent, the Export Control Classification Number (ECCN) or with sufficient technical information to determine the ECCN; and (10) Any information that it knows will affect the determination of license authority.
For Items 9 and 10, where the foreign principal party in interest has assumed responsibility for determining and obtaining license authority, the EAR sets forth the information sharing requirements that apply at 15 CFR 758.3(c) of the EAR.
In a routed export transaction, the forwarding or other agent is responsible for preparing, signing, and filing the SED or AES record based on information received from the exporter (U.S. principal party in interest) and other parties involved in the transaction. In addition to reporting the information provided by the exporter (U.S. principal party in interest) on the SED or AES record, the forwarding or other agent must provide the following export information on the SED or AES record: (1) Date of exportation; (2) Bill of lading/airway bill number; (3) Ultimate consignee; (4) Intermediate consignee; (5) Forwarding or other agent name and address; (6) Country of ultimate destination; (7) Loading pier; (8) Method of transportation; (9) Exporting carrier; (10) Port of export; (11) Port of unloading; (12) Containerized; (13) Weight; (14) ECCN; (15) License Authority; and (16) Signature in the certification block on the paper SED (block 24 on Commerce Form 7525-V and block 36 on Commerce Form 7525-V-ALT). In a routed export transaction, the exporter (U.S. principal party in interest) must be listed as the U.S. principal party in interest on the SED or the AES record.
For items 14 and 15 where the foreign principal party in interest has assumed responsibility for determining and obtaining license authority, the EAR sets forth the information sharing requirements that apply at 15 CFR 758.3(c) of the EAR.
In a routed export transaction, the forwarding or other agent is responsible for: (A) Obtaining a power of attorney or written authorization from the foreign principal party in interest to act on its behalf; (B) Preparing, signing, and filing the SED or AES record based on information received from the exporter (U.S. principal party in interest) and other parties involved in the transaction; (C) Maintaining documentation to support the information reported on the SED or AES record, and (D) Upon request, providing the exporter (U.S. principal party in interest), with appropriate documentation verifying that the information provided by the exporter (U.S. principal party in interest) in interest was accurately reported on the SED or AES record.
The FTSR places primary responsibility for compliance of the SED and AES requirements on the exporter (U.S. principal party in interest) in an export transaction and on the forwarding or other agent in a routed export transaction. However, the FTSR also considers all parties involved in the transaction responsible for the truth, accuracy, and completeness of the information reported on the SED or AES record. The parties to the transaction must provide the forwarding or other agent with the information necessary to correctly prepare the paper SED or to file the data electronically using the AES. As always, documentation must be maintained by all parties involved in the transaction to support the information reported on the SED or the AES record.
All parties that participate in transactions subject to the FTSR are responsible for compliance with the FTSR. In all cases where a violation of the FTSR occurs, the documentation of all parties involved in the transaction must be made available to the proper enforcement officials to determine the liability and responsibility for the export violation pursuant to FTSR § 30.11. Acting through a forwarding or other agent or delegating or redelegating authority does not in and of itself relieve anyone of their compliance responsibility.
This notice further clarifies provisions for using a power of attorney or written authorization when a principal party in interest authorizes a forwarding or other agent to prepare and file the SED on its behalf and when the SED information is filed electronically using the AES. Suggested formats for a power of attorney and a written authorization for executing a SED are available upon request from the U.S. Census Bureau, Foreign Trade Division.
This rule further specifies in § 30.4(f) the requirement that the SED be prepared in English. This provision is already included in the Census Bureau's instructions for completing the SED and this rule will simply include that requirement in the CFR.
In addition, this amendment clarifies the provision in § 30.7(d)(2) that a foreign entity, if in the United States when the items are purchased or obtained for export, must be listed as the U.S. principal party in interest on the SED or AES record and follow the provisions as specified in this part pertaining to the U.S. principal party in interest. In such situations, when the foreign entity does not have an EIN or Social Security Number (SSN), a border crossing number, passport number, or any number assigned by U.S. Customs is required to be reported on the SED or the AES record. On the paper SED, the appropriate number should be preceded by the symbol “T.” On the AES record, the appropriate AES identifier code, as specified in the Automated Export System Trade Interface Requirements (AESTIR) must be reported. Using another's EIN or SSN is prohibited.
In addition to addressing the issues contained in the supplementary notice of proposed rulemaking (addressed above), this rule is also amending the FTSR to: (A) Include provisions on electronic transmission of software and technology; (B) Amend the provision for reporting value in an export transaction; (C) Include revisions to provisions
In order to clarify the provisions of the FTSR with regards to the export reporting requirements for electronic transmissions and intangible transfers of software and technology, the Census Bureau is including a new section, 30.1(d), to the FTSR to state that electronic transmissions to be received outside the United States and other intangible transfers, such as downloaded software, and technology, are not subject to the provisions of the FTSR, but may be subject to export control requirements under other laws and regulations. Such transmissions and transfers are outside the scope and control of the Census Bureau and the FTSR. The FTSR only covers shipments of tangible/physical merchandise.
The Census Bureau is amending § 30.7(q), Value, to clarify the provision for reporting value information on the SED or AES record in an export transaction. In all export transactions the selling price or value to be reported on the SED or AES record is the U.S. principal party in interest's price to the foreign principal party in interest.
In order to update the Census Bureau's provisions on mail shipments currently included in the FTSR, the Census Bureau is clarifying provisions contained in § 30.16 for submitting corrections to SEDs that were initially submitted through the U.S. Postal Service. The Census Bureau is directing that all corrections to SEDs filed through the U.S. Postal Service be sent directly to the Census Bureau's National Processing Center in Jeffersonville, Indiana. The Census Bureau is also increasing the value limitation for goods exported through the mail that do not require a SED or AES record from $500 or under to $2,500 or under. This will bring all mail exports under the same provisions as for all other exports. Therefore, the Census Bureau will remove and reserve § 30.54, Special exemptions for mail shipments, as it is no longer necessary.
The Census Bureau is amending § 30.55, Miscellaneous exemptions, by revising paragraphs (g) and (h), and by adding paragraphs (n) and (o). Paragraphs (g) and (h) are being revised to make the FTSR language consistent with EAR revisions. Paragraph (n) will state that a SED or AES record is not required for exports of software and technology that does not require an export license, except that a SED or AES record is required for mass market software. For purposes of the FTSR, mass market software is defined as software that is generally available to the public by being sold from stock at retail selling points or directly from the software developer or supplier, by means of over the counter transactions, mail order transactions, telephone transactions, or electronic mail order transactions, and designed for installation by the user without further substantial technical support by the developer or supplier. Paragraph (o) will state that a SED or AES record is not required for any intangible exports of software and technology, such as downloaded software and technical data, including technology and software that requires an export license and mass market software exported electronically.
This rule is amending § 30.58 to revise the phrase “validated export license” to read “license” in paragraph (c)(1) and by adding paragraph (c)(6) for exports of items subject to the EAR that will be transhipped through Canada to a third country.
This rule also will include a provision to § 30.70, Statistical information required on import entries, to require importers to provide certain import information to the Census Bureau to verify the accuracy of import data. This is being included to ensure the cooperation of the importer in responding to requests from the Census Bureau when resolving problems or errors on import documents.
The revisions contained in this final rule are consistent with the provisions contained in the final rule issued by the BXA in its revisions to the EAR regarding the export control responsibilities of exporters and forwarding or other agents. The Department of the Treasury concurs with the provisions contained in this final rule.
In order to comply with comments received from the trade community, and to update the FTSR to clarify all of the items discussed above, minor revisions were made to the proposed rule. These revisions are not substantial and reflect changes required to clarify the concerns of commentors to the supplementary notice of proposed rulemaking and to make minor updates to the FTSR to reflect changes the Census Bureau and the BXA are making to harmonize the FTSR and the EAR. The changes to the proposed rule are as follows:
(1) Section 30.1 is amended by adding paragraph (d) to clarify that electronic transmissions and other intangible transfers of software and technology are not subject to the provisions of the FTSR.
(2) Section 30.4(a) is amended by including clarifying language to specify that the information reported on the SED or AES record is used by the Census Bureau for statistical reporting purposes only and that for purposes of this part the provisions apply only to statistical reporting requirements.
(3) Section 30.4(a)(1) is amended by including clarifying language to specify that the person listed in the previously designated “exporter” block of the paper SED or in the “exporter” field on the AES record must be the U.S. principal party in interest; and adding paragraph (iv) to clarify provisions for when a foreign entity must be listed as U.S. principal party in interest on the SED or AES record.
(4) Section 30.4(a)(1)(iii) is amended by adding the definition for order party in the regulation text and removing order party as a footnote.
(5) Section 30.4(b)(1)
(6) Section 30.4(b)(3) is now designated Section 30.4(b)(2)
(7) Section 30.4(c)(1)
(8) Section 30.4(c)(1) is amended by adding clarifying language to specify the documentation requirements of the exporter (U.S. principal party in interest) in a routed export transaction and to reference the current documentation provisions as specified in § 30.11.
(9) Section 30.4(c)(2) is amended by clarifying the responsibilities of the forwarding or other agent in a routed export transaction, and by adding specific language, in the regulation text, to clarify the documentation and
(10) Section 30.7(d)(1) and (2) is amended by clarifying that for purposes of completing the SED or AES record, the exporter (U.S. principal party in interest) must be listed as the “U.S. principal party in interest,” that the U.S. principal party in interest's EIN or other identification number be reported on the SED or AES record, and clarifying reporting responsibilities of a foreign entity who is in the United States when conducting an export transaction, and not possessing an EIN or SSN. In such situations, the foreign entity is required to report a border crossing number, a passport number, or any other number assigned by U.S. Customs on the SED or AES record in lieu of the EIN or SSN.
(11) Section 30.7(q) Value, is amended by clarifying the provision for reporting value information in an export transaction. In all export transactions the selling price or value to be reported on the SED or AES record is the U.S. principal party in interest's price to the foreign principal party in interest.
(12) Section 30.16 is amended by revising provisions for submitting corrections to SEDs for mail exports filed with the U.S. Postal Service. The Census Bureau will require that, in the case of mail exports, exporters submit corrections to SEDs directly to the Census Bureau's National Processing Center in Jeffersonville, Indiana. Current regulations require that corrections be submitted through the Postmaster at the post office where the export was mailed.
(13) Section 30.54, Special exemptions for mail shipments, is removed and reserved from this part. This section is no longer necessary since the Census Bureau is raising the value limitation for when a SED or AES record is not required from $500 or under to $2,500 or under. This change in the value requirement for mail exports, brings mail exports under the same provisions as for all other exports and no further special exemptions are required.
(14) Section 30.55(g) is amended by updating and clarifying language to reflect the Bureau of Export Administration's, Export Administration Regulations for License Exception GFT for single gift parcels.
(15) Section 30.55(h) is amended by making the FTSR language consistent with EAR provisions.
(16) Section 30.55 is further amended by adding paragraphs (n) and (o). Paragraph (n) will state that a SED or AES record is not required for exports of technology and software that does not require a license, except that a SED or AES record is required for mass market software. For purposes of the FTSR, mass market software is defined as software that is generally available to the public by being sold from stock at retail selling points or directly from the software developer or supplier, by means of over the counter transactions, mail order transactions, telephone transactions, or electronic mail order transactions, and designed for installation by the user without further substantial technical support by the developer or supplier. Paragraph (o) will state that a SED or AES record is not required for any intangible exports of software and technology, such as downloaded software and technical data, including technology and software that requires an export license and intangible mass market software exported electronically.
(17) Section 30.58 is amended by revising the phrase “validated export license” to read “license” in paragraph (c)(1) and by adding paragraph (c)(6) to include provisions for the export of items subject to the EAR that will be transshipped through Canada to a third destination.
(18) Section 30.70 is amended by adding provisions to require importers to provide certain import information to the Census Bureau to verify the accuracy of import data.
This rule is exempt from all requirements of Section 553 of the Administrative Procedure Act because it deals with a foreign affairs function (5 U.S.C.), 553(a)(1)).
Because a notice of proposed rulemaking is not required by 5 U.S.C. 553 or any other law, a Regulatory Flexibility Analysis is not required and has not been prepared (5 U.S.C. 603(a)).
This rule has been determined to be significant for purposes of Executive Order (E.O.) 12866. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a current valid Office of Management and Budget (OMB) control number. In accordance with the PRA, 44 U.S.C., Chapter 35, this rule's collections of information are cleared by the OMB under OMB Control Number 0607-0152. This rule will not impact the current reporting-hour burden requirements as approved under that OMB Control Number. We will furnish report forms to organizations included in the survey, and additional copies are available on written request to the Director, U.S. Census Bureau, Washington, DC 20233-0101.
Economic statistics, Exports, Foreign trade, Reporting and recordkeeping requirements.
5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization Plan No. 5 of 1950 (3 CFR 1949-1953 Comp., 1004); Department of Commerce Organization Order No. 35-2A, August 4, 1975, 40 CFR 42765.
(d)
(a)
(1)
(i) If a U.S. manufacturer sells merchandise directly for export to a foreign principal party in interest, the U.S. manufacturer must be listed as the U.S. principal party in interest on the SED or AES record.
(ii) If a U.S. manufacturer sells merchandise, as a domestic sale, to a U.S. buyer (wholesaler/distributor) and that U.S. buyer sells the merchandise for export to a foreign principal party in interest, the U.S. buyer (wholesaler/distributor) must be listed as the U.S. principal party in interest on the SED or AES record.
(iii) If a U.S. order party directly arranges for the sale and export of merchandise to a foreign buyer, the U.S. order party must be listed as the U.S. principal party in interest on the SED or AES record. The order party is that person in the United States who conducted the direct negotiations or correspondence with the foreign principal party in interest and who, as a result of these negotiations, received the order from the foreign principal party in interest.
(iv) If a foreign entity is
The EAR defines the “exporter” as the person in the United States who has the authority of a principal party in interest to determine and control the sending of items out of the United States (see 15 CFR Part 772 of the EAR). For statistical purposes the Foreign Trade Statistics Regulations (FTSR) have a different definition of “exporter” from the Export Administration Regulations (EAR). Under the FTSR the “exporter” will always be the U.S. principal party in interest. For purposes of licensing responsibility under the EAR, the U.S. agent of the foreign principal party in interest may be the “exporter” or applicant on the license, in certain routed export transactions (see 15 CFR 758.3 of the EAR).
(2)
(3)
(b)
(ii) When the exporter (U.S. principal party in interest) authorizes a forwarding or other agent to complete the SED or AES record on its behalf, the exporter (U.S. principal party in interest) is responsible for:
(A) Providing the forwarding or other agent with the export information necessary to complete the SED or AES record;
(B) Providing the forwarding or other agent with a power of attorney or written authorization to complete the SED or AES record, or signing the authorization block printed on the paper SED (block 23 on Commerce Form 7525-V and block 29 on Commerce Form 7525-V-ALT); and
(C) Maintaining documentation to support the information provided to the forwarding or other agent for completion of the SED or AES record, as specified in § 30.11.
(2)
(i) Accurately preparing the SED or AES record based on information received from the exporter (U.S. principal party in interest) and other parties involved in the transaction;
(ii) Obtaining a power of attorney or written authorization to complete the SED or AES record, or obtaining a paper SED with a signed authorization from
(iii) Maintaining documentation to support the information reported on the SED or AES record, as specified in § 30.11; and
(iv) Upon request, providing the exporter (U.S. principal party in interest) with a copy of the export information filed in the form of a completed SED, an electronic facsimile, or in any other manner prescribed by the exporter (U.S. principal party in interest).
(c)
(i) Name and address of the U.S. principal party in interest;
(ii) U.S. principal party in interest's, IRS, EIN;
(iii) Point of origin (State or FTZ);
(iv) Schedule B description of commodities;
(v) Domestic (D), foreign (F), or FMS (M) code;
(vi) Schedule B Number;
(vii) Quantity/unit of measure;
(viii) Value;
(ix) Upon request from the foreign principal party in interest or its agent, the Export Control Classification Number (ECCN) or sufficient technical information to determine the ECCN; and
(x) Any information that it knows will affect the determination of license authority.
For items in paragraph (c)(1)(ix) and (x) of this section, where the foreign principal party in interest has assumed responsibility for determining and obtaining license authority, the EAR sets forth the information sharing requirements that apply at 15 CFR 758.3(c) of the EAR.
(2)
(i) Date of exportation;
(ii) Bill of lading/airway bill number;
(iii) Ultimate consignee;
(iv) Intermediate consignee;
(v) Forwarding or other agent name and address;
(vi) Country of ultimate destination;
(vii) Loading pier;
(viii) Method of transportation;
(ix) Exporting carrier;
(x) Port of export;
(xi) Port of unloading;
(xii) Containerized;
(xiii) Weight;
(xiv) ECCN;
(xv) License Authority;
(xvi) Signature in the certification block on the paper SED (block 24 on Commerce Form 7525-V and block 36 on Commerce Form 7525-V-ALT). In a routed export transaction the exporter (U.S. principal party in interest) must be listed as U.S. principal party in interest on the SED or on the AES record;
For items in paragraph (c)(2)(xiv) and (xv) of this section, where the foreign principal party in interest has assumed responsibility for determining and obtaining license authority, the EAR sets forth the information sharing requirements that apply at 15 CFR 758.3(c) of the EAR.
(d)
(e)
(f)
(g)
(d)
(1)
(2)
(e)
(q)
The Exporter (U.S. principal party in interest) (or its agent) must report corrections, cancellations, or amendments to information reported on Shipper's Export Declarations to the Customs Director at the port of exportation (or, in the case of mail shipments directly to the U.S. Census Bureau, National Processing Center, Attention: Foreign Trade Section, 1201 East 10th Street, Jeffersonville, Indiana 47132) as soon as the need to make such correction, cancellation, or amendment is determined. * * *
7. Section 30.54 is removed and reserved.
(g) Shipments of single gift parcels as authorized by the Bureau of Export Administration under License Exception GFT, see 15 CFR 740.12 of the EAR.
(h) Except as noted in paragraph (h)(2) of this section exports of commodities where the value of the commodities, shipped from one exporter to one consignee on a single exporting carrier, classified under an individual Schedule B number, is $2,500 or less.
(1) This exemption applies to individual Schedule B commodity numbers regardless of the total shipment value. In instances where a shipment contains a mixture of individual Schedule B commodity numbers valued $2,500 or less and individual Schedule B commodity numbers valued over $2,500, only those commodity numbers valued $2,500 or more need be reported on a Shipper's Export Declaration or AES record.
(2) This exemption does not apply to exports:
(i) Destined for Cuba, Iran, Iraq, Libya, North Korea, Serbia (excluding Kosovo), Sudan and Syria.
(ii) Requiring a Department of Commerce license (15 CFR Parts 730 through 774 of the EAR).
(iii) Requiring a Department of State, Office of Defense Trade Controls export license under the International Traffic In Arms Regulations (ITAR) (22 CFR Parts 120 through 130).
(iv) Subject to the ITAR but exempt from license requirements.
(v) Requiring a Department of Justice, Drug Enforcement Administration export permit (21 CFR Part 1312). This exemption shall be conditioned upon the filing of such reports as the Bureau of the Census shall periodically require to compile statistics on $2,500 and under shipments.
(n) Exports of technology and software as defined in 15 CFR Part 772 of the EAR that do not require an export license, except that an SED or AES record is required for mass market software. For purposes of the FTSR, mass market software is defined as software that is generally available to the public by being sold at retail selling points, or directly from the software developer or supplier, by means of over the counter transactions, mail order transactions, telephone transactions, or electronic mail order transactions, and designed for installation by the user without further substantial technical support by the developer or supplier.
(o) Intangible exports of software and technology, such as downloaded software and technical data, including technology and software that requires an export license and mass market software exported electronically.
(c) * * *
(6) For all exports of items subject to the EAR (15 CFR Parts 730 through 799) that will be transhipped through Canada to a third destination, that would require an SED, AES record, or Commerce license if shipped directly to the final destination from the United States (see § 30.55(h)(2), including exports of items subject to the EAR that will be transhipped through Canada to Cuba, Iran, Iraq, Libya, North Korea, Serbia (excluding Kosovo), Sudan, and Syria.
10. Section 30.70 is amended by redesignating footnote 9 as footnote 7 and adding a sentence before the last sentence of the introductory text to read as follows:
* * * Upon request, the importer or import broker must provide the Census Bureau with information or documentation necessary to verify the accuracy or resolve problems regarding the reported import transaction received by the Census Bureau.* * *
Bureau of Export Administration, Commerce.
Final rule.
The Bureau of Export Administration is revising the Export Administration Regulations (EAR) to clarify the responsibilities of parties to export and reexport transactions, the filing and use of Shipper's Export Declarations, Destination Control Statement requirements, and other export clearance issues. In addition, this rule adds information about the scope and requirements for the Automated Export System (AES) Option 4 provision.
Sharron Cook, Regulatory Policy Division, Bureau of Export Administration, at (202) 482-2440.
For additional information on the AES in general, please contact: C. Harvey Monk, Chief Foreign Trade Division, U.S. Census Bureau, (301) 457-2255, fax (301) 457-2645, e-mail: c.harvey.monk.jr@census.gov
For information about obtaining BXA approval to use AES Option 4 for items subject to the EAR, contact: Tom Andrukonis or Donald Lyles, Director, Office of Enforcement Analysis, Bureau of Export Administration, (202) 482-4255, fax (202) 482-0971, e-mail: tandruko@bxa.doc.gov
The Bureau of Export Administration (BXA) is amending the Export Administration Regulations (EAR) in order to simplify and clarify the export clearance process and facilitate compliance. The amendment promotes flexibility so that parties to transactions subject to the EAR may structure their transactions freely, consistent with national security and foreign policy objectives.
In this final rule, BXA defines new terms, including “principal parties in interest”, “routed export transaction”, and “end-user”, and clarifies existing ones (notably the definition of “exporter”). The amendments ensure that for every transaction subject to the EAR, some party to the transaction is clearly responsible for determining licensing authority (License, License Exception, or NLR), and for obtaining the appropriate license or other authorization. The amendments also encourage communication among all parties to a transaction to ensure that each party knows its responsibilities in order to comply with the EAR.
For export control purposes the exporter has generally been the seller. An export transaction, however, has two principal parties in interest: a U.S. party and a foreign party—usually the seller and the buyer. In a “routed export transaction,” the foreign principal party in interest agrees to terms of sale that may include assuming responsibility for export licensing. This rule provides that when the foreign principal party expressly assumes responsibility in writing for determining license requirements and obtaining necessary authorization, that foreign party must have a U.S. agent who becomes the “exporter” for export control purposes. Without such a written undertaking by the foreign principal, the U.S. principal is the exporter, with all attendant responsibilities.
In addition to clarifying export licensing responsibilities, this rule institutes a requirement that the export licensee communicate license conditions to those parties to whom conditions apply and, when required by the license, obtain written acknowledgment of receipt of the conditions. This new provision is part of BXA's License and Enforcement Action Program (LEAP), which is designed to enhance compliance with the EAR.
In addition, these amendments significantly revise the first six sections of Part 758 of the EAR by reorganizing, streamlining and clarifying necessary provisions while deleting unnecessary or redundant provisions. Section 758.1 consolidates into one section the export control-related provisions pertaining to the SED or AES record. In consolidating these provisions into one section, BXA has eliminated those that are already contained in the FTSR, or that were otherwise unrelated to export controls. Section 758.2 provides new rules for BXA's AES Option 4 approval process. Commenters asked that this be added to the final regulation. Section 758.3 clarifies and consolidates provisions relating to the responsibilities of the parties, and § 758.4 consolidates, but does not significantly change, provisions concerning the use of an export license. Section 758.4, which contained very specific provisions relating to conformity of documents, has been greatly simplified in the interest of flexibility, and moved to section 758.5. Former sections 758.5 (general destination control requirements) and § 758.6 (destination control statement) have been combined and reduced to one paragraph at § 758.6.
Lastly, section 762.7 is amended to add language that clarifies that BXA has legal authority to issue subpoenas requiring individuals to appear and testify during the investigatory phase of an export case. The authority for this is found in both the Export Administration
The Census Bureau initially published a notice of proposed rulemaking as to who goes in block 1(a) of the SED in the
BXA received twenty-eight (28) comments on the notice of proposed rulemaking published in the
1.
2.
Some specific questions were submitted by some commenters about the writing.
1.
2.
3.
Some companies expressed concern about requests for information that is readily available from other sources, proprietary, not in the possession of the U.S. principal party in interest, or not available. In addition to the availability concern, some companies were concerned about the cost of complying with information sharing requests. BXA has not made any changes in the final rule in this regard, as the U.S. principal is generally in a better position to obtain
4.
One individual expressed concern that it would be unclear as to what constitutes compliance if the licensee were required to notify all end-users of conditions in a situation where the ultimate consignee was a distributor. Applicants must remember that conditions may be negotiated between BXA and the applicant. Moreover, if an applicant receives a license, but is not comfortable with the conditions, the applicant may choose not to proceed with the transaction.
5.
6.
Although the Export Administration Act (EAA) expired on August 20, 1994, the President invoked the International Emergency Economic Powers Act and continued in effect the EAR, and, to the extent permitted by law, the provisions of the EAA in Executive Order 12924 of August 19, 1994, extended by Presidential notice of August 10, 1999 (64 FR 44101) (August 13, 1999).
1. This final rule has been determined to be significant for purposes of E.O. 12866.
2. This rule involves collections that have been approved by the Office of Management and Budget under control numbers 0694-0038, and 0694-0096. This rule contains collections that have been approved by the Office of Management and Budget under control numbers: 0607-0152, 0694-0040, 0694-0094, 0694-0095, 0694-0097, 0694-0088, and 0694-0120. Notwithstanding any other provision of law, no person is required to respond nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.
3. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Sharron Cook, Regulatory Policy Division, Bureau of Export Administration, Department of Commerce, P.O. Box 273, Washington, DC 20044.
Administrative practice and procedure, Advisory committees, Exports, Foreign trade, Reporting and recordkeeping requirements, Strategic and critical materials.
Administrative practice and procedure, Exports, Foreign trade, Reporting and Recordkeeping requirements.
Administrative practice and procedure, Business and industry, Confidential business information, Exports, Foreign trade, Reporting and recordkeeping requirements.
Exports, Foreign trade.
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
a. § 740.9(a)(2)(iii) last sentence;
b. § 740.10(b)(3)(ii)(C);
c. § 743.1(b);
d. § 748.11(e)(4)(ii)(
e. Supplement No. 3 to part 748, “BXA-711, Statement By ultimate consignee and Purchaser Instructions”, Block 8; and
f. Supplement No. 3 to part 752, “Instructions on Completing Form BXA-752 ‘Statement by Consignee in Support of Special Comprehensive License’-A”, Block 5.
(a)
(1)
(i)
(ii)
(iii)
(2)
(3)
(b)
(c)
(d)
(a)
(2)
(3)
(b)
(2)
(A) An agent, applicant, licensee and exporter for a foreign principal party in interest in a routed transaction; or
(B) An agent who prepares an application for export on behalf of a U.S. principal party in interest who is the actual applicant, licensee and exporter in an export transaction.
(ii)
The following parties may be entered on the BXA-748P Multipurpose Application Form or electronic equivalent. The definitions, which also appear in part 772 of the EAR, are set out here for your convenience to assist you in filling out your application correctly.
(a)
(b)
(c)
(d)
(e)
(f)
(d)
(a)
(b)
(1) For all exports of items subject to the EAR that are destined to Cuba, Iran, Iraq, Libya, North Korea, Serbia (except Kosovo), Sudan, or Syria, regardless of value (see 15 CFR 30.55(h) of the FTSR); and
(2) For all exports of items subject to the EAR that are authorized under a license, regardless of value, or destination;
(3) For all exports of commodities and mass market software subject to the EAR that are authorized under a License Exception or under NLR, when the value of the commodities or mass market software classified under a single Schedule B Number (or Harmonized Tariff Schedule number) is over $2,500, except as exempted by the Foreign Trade Statistics Regulations (FTSR) in 15 CFR part 30 and referenced in paragraph (c) of this section;
(4) For all exports of items subject to the EAR that will be transshipped through Canada to a third destination, where the export would require an SED or AES record or license if shipped directly to the final destination from the United States (see 15 CFR 30.58(c) of the FTSR).
In addition to the Shipper's Export Declaration for exports, the Bureau of Census Foreign Trade Statistics Regulations provide for a specific Shipper's Export Declaration for In-Transit Goods (Form 7513). See 15 CFR 30.3 and 30.8 of the FTSR.
(c)
(1) License Exception Baggage (BAG), as set forth in § 740.14 of the EAR. See 15 CFR 30.56 of the FTSR;
(2) License Exception Gift Parcels and Humanitarian Donations (GFT), as set forth in § 740.12 of the EAR. See 15 CFR 30.55(g) of the FTSR;
(3) License Exception Aircraft and Vessels (AVS), as set forth in § 740.15 of the EAR. See 15 CFR 30.55(l) of the FTSR;
(4) License Exception Governments and International Organizations (GOV), as set forth in § 740.11 of the EAR. See 15 CFR 30.53 of the FTSR;
(5) License Exception Technology and Software Under Restriction (TSR), as set forth in § 740.6 of the EAR. See 15 CFR 30.55(n) of the FTSR; or
(6) License Exception Temporary Imports, Exports, and Reexports (TMP) “tools of trade”, as set forth in § 740.9(a)(2)(i) of the EAR. See 15 CFR 30.56(b) of the FTSR.
(d)
(e)
(f)
(1) Export of the items described on the SED or AES record is authorized under the terms and conditions of a license issued by BXA; is in accordance with the terms and conditions of a License Exception; is authorized under “NLR” as no license is required for the shipment; or is not subject to the EAR;
(2) Statements on the SED or AES record are in conformity with the contents of any license issued by BXA, with the possible exception of the exporter block in routed transactions; and
(3) All information shown on the SED or AES record is true, accurate, and complete.
(g)
(1)
(2)
(3)
(h)
(1) An agent must obtain a power of attorney or other written authorization in the following circumstances:
(i) An agent that represents a foreign principal party in interest in a routed transaction must obtain a power of attorney or other written authorization that sets forth his authority; and
(ii) An agent that applies for a license on behalf of a principal party in interest must obtain a power of attorney or other written authorization that sets forth the agent's authority to apply for the license on behalf of the principal.
The Bureau of Census Foreign Trade Statistics Regulations impose additional requirements for a power of attorney or other written authorization. See 15 CFR 30.4(e) of the FTSR.
(2) This requirement for a power of attorney or other written authorization is a legal requirement aimed at ensuring that the parties to a transaction negotiate and understand their responsibilities. The absence of a power of attorney or other written authorization does not prevent BXA from using other evidence to establish the existence of an agency relationship for purposes of imposing liability.
(i)
The Census Bureau's Foreign Trade Statistics Regulations (FTSR) (15 CFR 30) contain provisions for filing Shipper's Export Declarations (SEDs) electronically using the Automated Export System (AES). In order to use AES, you must apply directly to the Census Bureau for certification and approval through a Letter of Intent (see 15 CFR 30.60(b) and Appendix A to part 30 of the FTSR). Four AES filing options are available for transmitting shipper's export data. Option 1 is the standard paper filing of the SED, while the other three options are electronic. Option 2 requires the electronic filing of all information required for export prior to export (15 CFR 30.61(a) and 30.63 of the FTSR); Option 3 requires the electronic filing of only specified data elements prior to export, with complete information transmitted within 5 working days of exportation (15 CFR 30.61(b) and Appendix B of the FTSR); Option 4 is only available for approved filers (approval by Census Bureau, U.S. Customs Service, BXA and other agencies) and requires no information to be transmitted prior to export, with complete information transmitted within 10 working days of exportation (15 CFR 30.61(c) and 30.62(c) of the FTSR).
(a)
(b)
(1)
(i) Have you been charged with, convicted of, or penalized for, any violation of the EAR or any statute described in § 766.25 of the EAR?
(ii) Have you been notified by any government official of competent authority that you are under investigation for any violation of the EAR or any statute described in § 766.25 of the EAR?
(2)
I (We) certify that I (we) have established adequate internal procedures and safeguards to comply with the requirements set forth in the U.S. Department of Commerce Export
(i) Making a proper determination as to whether a license is required for a particular export;
(ii) Receipt of notification of approval of the export license, if required, before the export is made;
(iii) Compliance with all the terms and conditions of the license, License Exception, or NLR provisions of the EAR as applicable;
(iv) Return of revoked or suspended licenses to BXA in accordance with § 750.8(b) of the EAR, if requested;
(v) Compliance with the destination control statement provisions of § 758.6 of the EAR;
(vi) Compliance with the prohibition against export transactions that involve persons who have been denied U.S. export privileges; and
(vii) Compliance with the recordkeeping requirements of part 762 of the EAR.
I (we) agree that my (our) office records and physical space will be made available for inspection by the Bureau of the Census, BXA, or the U.S. Customs Service, upon request.
(c)
(1) Applicants have not been approved for Option 4 filing privileges by the Census Bureau or other agency;
(2) Applicants are denied persons (
(3) Exports are destined to the countries designated by the Secretary of State as supporters of international terrorism under Section 6(j) of the Export Administration Act of 1979, as amended. These “T-7” countries currently include Iran, Iraq, Libya, North Korea, Cuba, Sudan, and Syria.
(d)
(2) For information about BXA's Option 4 approval process to use AES Option 4 for items subject to the EAR, contact: Director, Office of Enforcement Analysis, Bureau of Export Administration, (202) 482-4255, facsimile: (202) 482-0971.
All parties that participate in transactions subject to the EAR must comply with the EAR. Parties are free to structure transactions as they wish, and to delegate functions and tasks as they deem necessary, as long as the transaction complies with the EAR. However, acting through a forwarding or other agent, or delegating or redelegating authority, does not in and of itself relieve anyone of responsibility for compliance with the EAR.
(a)
(b)
For statistical purposes, the Foreign Trade Statistics Regulations (15 CFR part 30) have a different definition of “exporter” from the Export Administration Regulations. Under the FTSR the “exporter” will always be the U.S. principal party in interest. For purposes of licensing responsibility under the EAR, the U.S. agent of the foreign principal party in interest may be the “exporter” in a routed transaction.
(c)
(d)
(a)
(b)
(1) BXA grants an extension; or
(2) Prior to midnight on the date of expiration on the license, the items:
(i) Were laden aboard the vessel;
(ii) Were located on a pier ready for loading and not for storage, and were booked for a vessel that was at the pier ready for loading; or
(iii) The vessel was expected to be at the pier for loading before the license expired, but exceptional and unforseen circumstances delayed it, and BXA or the U.S. Customs Service makes a judgment that undue hardship would result if a license extension were required.
(c)
(a)
(b)
(c)
(2)
(ii)
(d)
(e)
(2)
(A) A copy of the manifest of the diverted cargo;
(B) Identification of the place of unloading;
(C) Statement that explains why the unloading was necessary; and
(D) A proposal for disposition of the items and a request for authorization for such disposition from BXA.
(ii)
The Destination Control Statement (DCS) must be entered on the invoice and on the bill of lading, air waybill, or other export control document that accompanies the shipment from its point of origin in the United States to the ultimate consignee or end-user abroad. The person responsible for preparation of those documents is responsible for entry of the DCS. The DCS is required for all exports from the United States of items on the Commerce Control List that are not classified as EAR99, unless the export may be made under License Exception BAG or GFT (see part 740 of the EAR). At a minimum, the DCS must state: “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.”
(b) * * *
(15) § 750.7, Issuance of license and acknowledgment of conditions;
(30) § 758.1 and § 758.2, Shipper's Export Declaration or Automated Export System record;
(39) § 745.1, Annual reports;
(40) § 745.2, End-use certificates; and
(41) § 758.2(c), Assumption writing.
CW applies to entire entry. A license is required for CW reasons only to CWC non-States Parties (destinations not listed in Supplement No. 2 to part 745), unless an End-Use Certificate is obtained by the exporter (see § 742.18 of the EAR). See § 745.2 of the EAR for End-Use Certificate requirements, and the License Requirements Notes of this entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons.
1. Chemicals listed in this entry may be shipped NLR (No License Required) when destined to most CWC States Parties (countries listed in Supplement No. 2 to part 745). Also see License Requirement Note 3.
2. Chemicals listed in this entry may be shipped NLR when destined to most non-States Parties (destinations
3. Chemicals listed in this entry may not be shipped NLR if restrictions of other sections of the EAR apply (
4. MIXTURES: Mixtures controlled by this entry that contain certain concentrations of precursor and intermediate chemicals are subject to the following requirements:
a. Mixtures are controlled under this entry when containing at least one of the chemicals controlled under 1C355.a when the chemical constitutes more than 10 percent of the weight of the mixture.
b. Mixtures are controlled under this entry when containing at least one of the chemicals controlled under 1C355.b when the chemical constitutes more than 25 percent of the weight of the mixture.
c. Mixtures containing chemicals identified in this entry are not controlled by ECCN 1C355 when the controlled chemical is a normal ingredient in consumer goods packaged for retail sale for personal use. Such consumer goods are classified as EAR99.
Calculation of concentrations.
a.
b. Absolute Weight Calculation. When calculating the percentage, by weight, of components in a chemical mixture, include all components of the mixture, including those that act as solvents;
c.
In this example, the mixture is controlled under this entry because a chemical listed in 1C355.a. constitutes more than 10 percent of the weight of the mixture.
5.
For purposes of this entry, a “mixture” is defined as a solid, liquid or gaseous product made up of two or more components that do not react together under normal storage conditions.
Office of the Secretary, HUD.
Proposed rule.
This proposed rule would amend HUD's Freedom of Information Act (FOIA) regulations in their entirety. The rule would implement the amendments made by the Electronic Freedom of Information Act to FOIA. The proposed rule would also rewrite the FOIA regulations using plain language. Plain language is an approach to writing that promotes responsive, accessible, and understandable written communication. The rule would also make various streamlining and organizational changes to the regulations. These proposed amendments would simplify and improve the clarity of the HUD's FOIA requirements.
Interested persons are invited to submit comments regarding this proposed rule to the Office of the General Counsel, Rules Docket Clerk, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500. Comments should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying during regular business hours (7:30 a.m. to 5:30 p.m. Eastern time) at the above address.
Marylea Byrd, Assistant General Counsel, FOIA Division, Office of the General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500, Room 10248; Telephone (202) 708-3866 (this is not a toll-free number.) Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
HUD's regulations at 24 CFR part 15 describe the policies and procedures governing public access to HUD records under the Freedom of Information Act (FOIA) (5 U.S.C. 552). Enacted in 1966, FOIA gives persons the right to request and receive a wide range of information from any Federal agency, subject to certain exemptions. As stated by President Clinton in his October 4, 1993 memorandum to the heads of all Federal departments and agencies, FOIA “was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed.”
The Congress has amended FOIA several times, most recently in 1996 with the enactment of the Electronic Freedom of Information Act (Public Law 104-231, approved October 2, 1996; 110 Stat. 3048) (EFOIA). The 1996 amendments were designed to improve public access to government information and records, particularly electronic records, and expedite agency responses to requests for records under FOIA.
This proposed rule would revise HUD's FOIA regulations in their entirety in order to: (1) Implement the statutory amendments made by the Electronic Freedom of Information Act to FOIA; and (2) simplify and improve the clarity of HUD's freedom of information requirements. The following sections of this preamble summarize the major changes that would be made by this proposed rule to HUD's FOIA regulations.
As noted above, EFOIA made various amendments designed to enhance public access to agency records and agency processing of FOIA requests. The following is a summary of the major amendments made by EFOIA that would be implemented by this proposed rule.
EFOIA improves the ability of a requester to obtain information in an electronic format by requiring agencies to provide information in the format preferred by a requester, and by requiring agencies to provide more information on-line. This proposed rule would make several amendments designed to implement the EFOIA electronic information requirements. The following is a summary of the most significant of these amendments:
1.
2.
EFOIA also modifies the deadlines and procedures for processing FOIA requests to provide faster processing for some requests, and to assist agencies to reduce backlogs and delays. This proposed rule would make various amendments to implement these enhanced FOIA processing procedures. The following is a summary of the most significant of these amendments:
1.
Section 15.105 of this proposed rule explains how HUD will process FOIA requests. The proposed rule would provide for multitrack processing at § 15.105(a). Specifically, this proposed rule sets out a two track system: (1) A complex track, and (2) a routine track.
When HUD has a significant number of pending requests that prevents a responsive determination being made within 20 working days, the requests
2.
• The failure of a requester to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or a threatened loss of substantial due process rights; or
• If the requester is primarily engaged in disseminating information and there is an urgency to inform the public concerning actual or alleged Federal Government activity.
3.
EFOIA defines “unusual circumstances” to include the need to:
• Search for, collect, and appropriately examine a voluminous amount of records;
• Search for and collect the records from other offices than the one handling the request; and
• Consult with another government office having a substantial interest in the determination of the FOIA request. (5 U.S.C 552(a)(6)(B)(iii).)
This proposed rule would implement the statutory amendments to the time period for responding to FOIA requests at § 15.104.
In addition to implementing the statutory amendments made by EFOIA, this proposed rule would make several amendments to simplify and improve the clarity of HUD's freedom of information requirements. The following is a summary of the major clarifying changes that would be made by this rule:
This rule would rewrite the FOIA regulations using plain language, in response to President Clinton's Memorandum of June 1, 1998, entitled “Plain Language in Government” (63 FR 31885, Wednesday, June 10, 1998). In this memorandum, President Clinton directed Federal agencies to use plain language in all government writing. With respect to rules, President Clinton directed Federal agencies to use plain language in new proposed and final rules beginning January 1, 1999. In the same memorandum, President Clinton also urged Federal agencies to consider rewriting existing regulations in plain language, as resources permit.
Plain language is an approach to writing that promotes responsive, accessible, and understandable written communications. It involves the use of a number of writing tools to create documents that are visually inviting, logically organized, and understandable on the first reading. These writing tools include:
• Using the active voice and strong verbs;
• Using compact sentences;
• Using personal pronouns such as “you” and “we”;
• Using common, everyday words;
• Avoiding surplus words and technical or legal jargon;
• Using tables to present information where appropriate; and
• Using a design and layout that increases comprehension.
HUD selected to rewrite the FOIA regulations in plain language, because it is important that the requirements governing the public's access to HUD records be simple to understand.
In addition to rewriting HUD's FOIA regulations in plain language, this proposed rule would also make various streamlining and organizational changes to 24 CFR part 15. The following is a brief summary of the major streamlining changes that would be made by this proposed rule:
1.
Existing 24 CFR part 15, subparts H and I are not FOIA-related. Current subpart H, which describes the procedures HUD follows in responding to subpoenas or demands of courts and other agencies to produce or disclose documents, would be redesignated as subpart C. Current subpart I, which describes the procedures HUD follows concerning the testimony of its employees in legal proceedings, would be redesignated as subpart D. With the exceptions of the changes in designation and conforming amendments, these regulations would not be revised by this proposed rule.
2.
3.
4.
This proposed rule is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321). The proposed revision of the FOIA-related provisions of 24 CFR part 15 falls within the exclusion provided by 24 CFR 50.19(c)(1), in that it does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this rule before publication and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities because the rule is procedural. Accordingly, the proposed rule would not have any impact on the substantive rights or duties of small entities requesting HUD records under the Freedom of Information Act. Furthermore, the fees charged under this rule are limited by FOIA to direct costs of searching for, reviewing, and duplicating the records processed for requesters and are not economically significant.
Notwithstanding HUD's determination that this rule will not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule would not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule does not impose any Federal mandates on any State, local, or tribal governments or the private sector within the meaning of Unfunded Mandates Reform Act of 1995.
Classified information, Courts, Freedom of information, Government employees, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HUD proposes to amend 24 CFR part 15 as follows:
1. Revise the heading of part 15 to read as set forth above.
2. The authority citation for part 15 is revised to read as follows:
42 U.S.C. 3535(d).
Subpart A also issued under 5 U.S.C. 552.
Section 15.107 also issued under E.O. 12958, 60 FR 19825, 3 CFR Comp., p. 333.
Subparts C and D also issued under 5 U.S.C. 301.
3. Revise subpart A to read as follows:
(a)
(b)
(c)
(d)
The following definitions apply to this part.
(a)
(b)
(i) A preschool;
(ii) A public or private elementary or secondary school;
(iii) An institution of graduate higher education;
(iv) An institution of undergraduate higher education
(v) An institution of professional education; or
(vi) An institution of vocational education, that primarily (or solely) operates a program or programs of scholarly research.
4. Revise subpart B to read as follows:
HUD will fully and responsibly disclose its identifiable records and information consistent with competing public interests concerning the national security, personal privacy, agency deliberative process, and obligations of confidentiality as are recognized by FOIA. HUD will make a record available in the form or format requested, if the record is readily reproducible in that format.
(a) You may inspect and copy records, including indices of the records, that section 552(a)(2) of FOIA requires HUD make available to the public at HUD's reading rooms. HUD has reading rooms in Headquarters in Washington, DC and in each of the Secretary's Representative's offices. These reading rooms are open during the business hours for the HUD office in which they are located.
(b) This information is also available to you through HUD's Internet web site at http://www.hud.gov.
(a)
(b)
(c)
(d)
(1) Clearly state that you are making a FOIA request. Although Federal agencies are required to process all requests for documents as Freedom of Information Act requests, whether or not specifically designated as FOIA requests, failure to clearly state that you are making a FOIA request could unduly delay the initial handling of your correspondence through HUD's FOIA processing;
(2) Reasonably describe the records you seek. Include information that you may know about the documents you are requesting;
(3) Indicate the form or format in which you would like the record made available;
(4) State your agreement to pay the fee. You may specify a dollar amount above which you want HUD to consult with you before you will agree to pay the fee;
(5) Indicate the fee category that you believe applies to you (see § 15.110);
(6) If you are making a request on behalf of another person for information about that person, include a document signed by that person authorizing you to request the information on his or her behalf; and
(7) If you are requesting expedited processing, include your certification setting out the facts you believe show that there is a compelling need (see § 15.104(d)) to expedite processing of your request.
(a)
(b)
(c)
(d)
(a)
(b)
(1) Your failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or a threatened loss of substantial due process rights; or
(2) You are primarily engaged in disseminating information and there is an urgency to inform the public concerning actual or alleged Federal Government activity.
(a)
(2) The FOIA Division in HUD Headquarters and the FOIA liaisons in each HUD Field Office may deny a request for a record in accordance with the provisions of FOIA and this part.
(b)
(1) Agree to give you all the records you requested;
(2) Advise you that HUD will not give you some or all of the records you requested. Any denial or partial denial of a requested record must be concurred in by the FOIA Division in Headquarters, by counsel in the Field Offices, or by counsel in HUD's Departmental Enforcement Center Satellite Offices. In this case, HUD will:
(i) Explain why it has decided not to comply fully with your request, citing specific exemptions where applicable;
(ii) Describe the records denied or, if there are fewer than 21 records denied, list them specifically;
(iii) Estimate the volume of the records denied unless doing so would harm a protected interest; and
(iv) Explain how to appeal that decision, and provide the name and address of the HUD official to whom you should submit your appeal.
(3) Tell you that HUD's estimate of the fee is more than you have agreed to pay and ask to confer within 10 days to see if you can reformulate your request so that HUD can meet your request at a fee that is acceptable to you; or
(4) Tell you that you will not receive a response until you have either paid your fee or committed to the amount of fee you will pay, as applicable, and will provide you 10 days to pay, or commit to pay, the fee.
(5) If you requested expedited processing, advise you whether your request is granted or denied and, if your request is denied, advise you of your right to appeal.
(c)
If your request involves the release of documents that are classified under Executive Order 12958, HUD will refer your request and the pertinent documents to the originating agency for processing. HUD may refuse to confirm or deny the existence of the requested information if the originating agency determines that the fact of its existence is itself classified.
(a)
(b)
(2) To obtain a designation of confidentiality, you must:
(i) Support your request with an authorized statement or a certification giving the facts and the legal justification for your request and stating that the information has not been made public; and
(ii) Clearly designate the information that you consider confidential.
(3) Your designation of confidentiality will expire 10 years after the date the information was submitted to HUD, unless you have provided a reasonable explanation for a later expiration date.
(c)
(1) Unless an exception in paragraph (c)(2) of this section applies, promptly notify the submitter about the request or the administrative appeal and give the submitter 10 working days to submit a written objection to disclosure. HUD will describe the requested business information or will provide copies of all or a portion of the records;
(2) If any of the following circumstances apply, HUD will not notify the submitter:
(i) HUD determines that the information should not be disclosed;
(ii) The information has been published lawfully or has been made available officially to the public;
(3) A law other than FOIA requires HUD to disclose the information;
(4) A HUD regulation requires HUD to disclose the information. The regulation must:
(i) Have been adopted pursuant to notice and public comment; and
(ii) Specify narrow classes of records submitted to HUD that are to be released under the FOIA.
(d)
(e)
(f)
(1) A statement of the reasons why HUD rejected the submitter's disclosure objections;
(2) A description of the business information to be disclosed; and
(3) A disclosure date.
(g)
(2)
(3)
(a)
(b)
(1) The information concerns a project that is subject to a HUD-held mortgage which HUD is selling under the authority of sections 207 (k) and (l) of the National Housing Act (12 U.S.C. 1713 (k) and (l)) or section 7(i)(3) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(i)(3)).
(2) The eligible potential purchasers have agreed to:
(i) Keep the information confidential;
(ii) Disclose the information only to potential investors in the mortgage and only for the period specified by HUD for the mortgage sale and to notify those potential purchasers of their obligations under this section;
(iii) Use the information only to evaluate the mortgage in connection with the mortgage sale; and
(iv) To follow disclosure procedures for that sale that have been established by the Secretary.
(3) The potential investors in the mortgage have agreed to keep the information confidential and to use the information only to evaluate the mortgage in connection with their investment decision.
(c)
(1) Necessary for the investor's evaluation of the mortgage;
(2) Made in accordance with disclosure procedures for the specific sale that have been established by HUD; and
(3) Limited to the period specified by HUD for the mortgage sale.
(d)
(a)
(b)
(2)
(3)
(4)
(ii) Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public.
(iii) Freelance journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but HUD may also look to the past publication record of a requester in making this determination.
(iv) If you are a representative of the news media requester, HUD will not consider you to be a commercial use requester.
(5)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(2) If you do not pay the amount due within ninety calendar days of the due date, HUD may notify consumer credit reporting agencies of your delinquency.
(3) If you owe fees for previous FOIA responses, HUD will not respond to further requests unless you pay the amount due.
(k)
(a)
(b)
(c)
(1) A copy of your original request;
(2) A copy of the written denial of your request; and
(3) Your statement of the facts and legal arguments supporting disclosure.
(d)
(1) The address of the office which made the fee determination from which you are appealing;
(2) The fee that office charged;
(3) The fee, if any, you believe should have been charged;
(4) The reasons you believe that your fee should be lower than the fee which the Agency charged or should have been waived; and
(5) A copy of the initial fee determination and copies of any correspondence concerning the fee.
(e)
(1) A copy of your original request;
(2) A copy of the written denial of your request; and
(3) Your statement of the facts and legal arguments supporting expedited processing.
(a)
(b)
(i) Give you the records you requested or advise you that the records will be provided by the originating office;
(ii) Give you some of the records you requested while declining to give you other records you requested, tell you why HUD has concluded that the documents were exempt from disclosure under FOIA, and tell you how to obtain judicial review of HUD's decision; or
(iii) Decline to give you the records you requested, tell you why HUD has concluded that the records were exempt from disclosure under FOIA, and tell you how to obtain judicial review of HUD's decision.
(2)
(i) Waive the fee or charge the fee that you have requested;
(ii) Modify the original fee charged, and explain why it has determined that the fee is appropriate; or
(iii) Advise you that the original fee charged was appropriate, and explain why it has determined that the fee is appropriate.
(3)
(i) Agree to expedited processing of your request; or
(ii) Advise you that the decision to deny expedited processing has been affirmed, and tell you how to obtain judicial review of HUD's decision.
5. Remove subparts C, D, F, G, and J.
6. Redesignate subparts H, consisting of §§ 15.71 through 15.74, as subpart C, consisting of §§ 15.201 through 15.204, to read as follows:
7. In newly designated § 15.201, the undesignated paragraph is redesignated as paragraph (a) and a new paragraph (b) is added to read as follows:
(b) The term “legal proceeding” has the meaning given in § 15.301(b).
8. In newly designated § 15.203(a), revise the reference to § 15.71 to read § 15.201.
9. In newly designated § 15.204, revise the reference to § 15.73(b) to read § 15.203(b).
10. Redesignate subpart I, consisting of §§ 15.81 through 15.85, as subpart D, consisting of §§ 15.301 through 15.309, to read as follows:
11. In newly designated § 15.304, revise the reference to §§ 15.71-15.74 to read §§ 15.201-204.
This appendix will not appear in the Code of Federal Regulations.
Appendix A—Reading Rooms
The Department maintains a reading room in Headquarters, 451 Seventh Street, SW, Washington, DC 20410 and in each of its Secretary Representative's Offices as follows:
New England, Boston Office—Room 375, Thomas P. O'Neill, Jr. Federal Building, 10 Causeway Street, Boston, Massachusetts 02222-1092. The New England Office oversees jurisdiction for HUD Offices located in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, and Rhode Island.
New York/New Jersey, New York Office—26 Federal Plaza, New York, New York 10278-0068. The New York/New Jersey Office oversees jurisdiction for HUD Offices located in New York and New Jersey.
Mid Atlantic, Philadelphia Office—Liberty Square Building, 105 South 7th Street, Philadelphia, Pennsylvania 19106-3392. The Mid Atlantic Office oversees jurisdiction for HUD Offices located in Pennsylvania, Delaware, Maryland, Virginia, and West Virginia.
Southeast/Caribbean, Atlanta Office—Five Points Plaza Building, 40 Marietta St., Atlanta, Georgia 30303. The Southeast/Caribbean Office oversees jurisdiction for HUD Offices located in Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Florida, and Puerto Rico.
Midwest, Chicago Office—Ralph Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507. The Midwest Office oversees jurisdiction for HUD Offices located in Illinois, Indiana, Ohio, Michigan, Wisconsin, and Minnesota.
Southwest, Fort Worth Office—Burnett Plaza Building, 801 Cherry Street, Fort Worth, Texas 76102. The Southwest Office oversees jurisdiction for HUD Offices located in Oklahoma, Texas, Arkansas, Louisiana, and New Mexico.
Great Plains, Kansas City Office—Room 200, Gateway Tower II, 400 State Avenue, Kansas City, Kansas 66101-2406. The Great Plains Office oversees jurisdiction for HUD Offices located in Missouri, Iowa, Kansas, and Nebraska.
Rocky Mountain, Denver Office—633 17th Street, Denver, Colorado 80202-3607. The Rocky Mountain Office oversees jurisdiction for HUD Offices located in Colorado, Utah, Wyoming, North Dakota, South Dakota, and Montana.
Pacific/Hawaii, San Francisco Office—Philip Burton Federal Building & U.S. Courthouse, 450 Golden Gate Avenue, PO Box 36003, San Francisco, California 94102-3448. The Pacific/Hawaii Office oversees jurisdiction for HUD Offices located in California, Nevada, Arizona, and Hawaii.
Northwest/Alaska, Seattle Office—Suite 200, Seattle Federal Office Building, 909 First Avenue, Seattle, Washington 98104-1000. The Northwest/Alaska Office oversees jurisdiction for HUD Offices located in Alaska, Washington, Oregon, and Idaho.
Office of Special Education and Rehabilitative Services, Department of Education.
The Assistant Secretary for the Office of Special Education and Rehabilitative Services announces a final funding priority for one DRRP under the National Institute on Disability and Rehabilitation Research (NIDRR) for fiscal year 2000. The Assistant Secretary takes this action to focus research attention on an area of national need. The priority is intended to improve rehabilitation services and outcomes for individuals with disabilities.
This priority takes effect on August 9, 2000.
Donna Nangle. Telephone: (202) 205-5880. If you use a telecommunications device for the deaf (TDD) may call the TDD number at (202) 205-4475. Internet: donna—nangle@ed.gov
Individuals with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audio tape, or computer diskette) on request to the contact person listed in the preceding paragraph.
This notice contains a final priority under the Disability and Rehabilitation Research Projects and Centers Program for a DRRP on Information Technology Technical Assistance and Training (ITTA).
The final priority refers to NIDRR's Long Range Plan (the Plan). The Plan can be accessed on the World Wide Web at:
This final priority supports the National Education Goal that calls for every American to possess the skills necessary to compete in a global economy.
The authority for the Assistant Secretary to establish research priorities by reserving funds to support particular research activities is contained in sections 202(g) and 204 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 762 and 764). Regulations governing this program are found in 34 CFR Part 350.
This notice of a final priority does not solicit applications. A notice inviting applications is published in this issue of the
On May 8, 2000 the Assistant Secretary published a notice of a proposed priority in the
Authority for DRRPs is contained in section 204 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 764). DRRPs carry out one or more of the following types of activities, as specified in 34 CFR 350.13-350.19: research, development, demonstration, training, dissemination, utilization, and technical assistance. Disability and Rehabilitation Research Projects develop methods, procedures, and rehabilitation technology that maximize the full inclusion and integration into society, employment, independent living, family support, and economic and social self-sufficiency of individuals with disabilities, especially individuals with the most severe disabilities. In addition, DRRPs improve the effectiveness of services authorized under the Rehabilitation Act of 1973, as amended.
Under 34 CFR 75.105(c)(3) the Assistant Secretary will give an absolute preference to applications that meet the following priority. The Assistant Secretary will fund under this competition only an application that meets this absolute priority.
The emerging digital economy is fundamentally altering the way Americans work. The advent of powerful computers, high speed modems, sophisticated telecommunications networks, fiber optics, broadband network capacity, intranets, the Internet, the World Wide Web (WWW), and satellites has enabled computer and information experts to build a global information network that is unparalleled. These technologies, and how we use them, are undergoing rapid changes that result in a new wave of information flow that touches all facets of society, including education, employment and daily living. In this period of rapid technical, economic, and social change, access to electronic and information technologies is essential for everyone. Unfortunately, while the availability of information technology holds tremendous promise to level the playing field, the proliferation of electronic and information technologies does not guarantee accessibility and usability for individuals with disabilities.
The electronic and information technology industry has been growing at more than double the rate of the overall economy—a trend that is likely to continue (The Emerging Digital Economy II, a report by the U.S. Department of Commerce, June, 1999). Because of the increase in availability of the Internet, 20 million salaried workers telecommuted from their homes last year. That number is expected to reach 130 million by 2003 (InfoTech Trends, Fourth Quarter, 1998). Electronic mail, once considered an elite mode of communication for university-based researchers and scientists, is now routinely used by workers to instantly exchange visual and audible information in readable and reusable formats (e.g., computer files, charts, figures, tables, images, databases, and software packages) using one of the estimated 14,000 Internet service providers worldwide (InfoTech Trends, Second Quarter, 1999).
In today's market, electronic and information technology product cycles are measured in months, not years. The same can be said for product lifetimes. This rapid proliferation of technologies has emphasized the need for universal design—a process whereby environments and products are designed with built-in flexibility so they are usable by as many people as possible, regardless of age and ability, at no additional cost to the user. Given the rapid evolution of each generation, new products often do not include universal design features, thus increasing the need for the expensive process of retrofitting.
Unfortunately, there is a shortage of individuals knowledgeable about the principles of universal design and the benefits of incorporating universal design features into electronic and information technologies. There is also a shortage of individuals trained to educate consumers, customer service professionals, technical writers, web developers, marketers, and other information technology related professionals about accessible and usable electronic and information technologies.
Congress has passed landmark legislation that is intended to maximize the full inclusion and integration of individuals with disabilities in society, including increased access to electronic and information technology. These laws, and their provisions, include the Hearing Aid Compatibility Act of 1988, the Television Decoder Circuitry Act of 1990, the Americans with Disabilities Act (ADA) of 1990, the Telecommunications Act of 1996, the Assistive Technology Act (AT Act) of 1998, and the Workforce Investment Act of 1998, which includes sections 504 and 508 of the Rehabilitation Act of 1973, as amended.
Section 255 of the Telecommunications Act of 1996 requires telecommunications service providers and equipment manufacturers to make their services and equipment accessible by persons with the full range of disabilities, if readily achievable. If a manufacturer or service provider claims this is not readily achievable, the manufacturer or service provider must still ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access. On July 19, 1999, the Federal Communications Commission (FCC) adopted rules and guidelines to implement section 255 of the Telecommunications Act.
Section 508 of the Rehabilitation Act of 1973, as amended, requires access to the Federal government's electronic and information technology. Section 508 applies to all Federal departments and agencies when they develop, procure, maintain or use electronic and information technology. Federal departments and agencies must ensure equal access to, and use of, electronic and information technology for Federal employees with disabilities and members of the public seeking information or services from their agency comparable to those who do not have disabilities, unless such a requirement would cause an undue burden. The Access Board published a notice of proposed rulemaking in the
The regulations and standards for section 255 of the Telecommunications Act and section 508 of the Rehabilitation Act will have a profound impact on dozens of stakeholders, including, but not limited to, information technology manufacturers, product designers and engineers, technical writers, marketers, distributors, purchasers of information technologies, web developers and others. Currently there is a dearth of information and technical assistance available for stakeholders and other constituencies on how to comply with these regulations and standards. There is also a limited supply of skilled professionals capable of providing training and support on how to implement the requisite guidelines and standards for electronic and information technology.
A number of Federal agencies are collaborating to promote awareness about accessible electronic and information technologies, the benefits of incorporating universal design into these products, and the need for expanding capacity for training and technical assistance in this field. NIDRR, the General Services Administration, the Federal Communications Commission, and the Access Board are jointly supporting a multifaceted initiative that includes a demonstration center, multiple web pages, and technical assistance and training efforts, in partnership with industrial consortia and professional and trade associations. This priority relates to the need for expanding capacity for technical assistance and training for a broad array of constituents.
The Assistant Secretary proposes to establish an Information Technology Technical Assistance and Training Center to promote the wide spread use of accessible and usable electronic and information technology and to promote the benefits of universal design. In carrying out these purposes, the Information Technology Technical Assistance and Training Center must:
• Design and implement a needs assessment that will determine the technical assistance and training needs relative to: (a) Implementing the final standards under section 508 of the Rehabilitation Act; (b) the guidelines for section 255 of the Telecommunications Act; and (c) promoting the principles of universal design. The needs assessment should target audiences including, but not limited to, State procurement officers, product designers and engineers, marketers, technical writers, web developers, consumer and disability-related organizations, service providers, human resource professionals, and relevant industrial consortia and professional and trade associations;
• Based upon the findings of the needs assessment, develop, implement and evaluate relevant training materials and instructional modules that meet the requirements of section 255 of the Telecommunications Act and section 508 of the Rehabilitation Act, and address the principles of universal design;
• Develop and disseminate training materials and instructional modules to States receiving AT Act funds on implementing the requirements of section 508 and its standards;
• Provide information, training and technical assistance about section 255 of the Telecommunications Act, section 508 of the Rehabilitation Act, and the principles of universal design to appropriate constituencies, including the information technology and telecommunications industry, relevant industrial consortia, professional and trade associations, and States receiving AT Act funds;
• Collaborate with the General Services Administration, the Federal Communications Commission, and the Access Board by contributing information and materials for the Government wide web site on Section 508;
• Design and implement, in collaboration with the Federal Communications Commission, the Access Board, the Rehabilitation Engineering Research Center on Telecommunications Access and the telecommunications industry, a web site that contains information and instructional materials, including those developed under Activity 2, that can be used by telecommunications designers of equipment and services to develop and fabricate solutions that are in accordance with the guidelines for section 255 of the Telecommunications Act; and
• Identify, implement, and disseminate strategies, in collaboration with industrial consortia and professional and trade associations, that will expand training capacity of the field and increase the knowledge base about accessible and usable electronic and information technology.
In addition to the activities proposed by the applicant to carry out these purposes, the Information Technology Technical Assistance and Training Center must:
• Collaborate with industry, industrial consortia, professional and trade associations, and States receiving AT Act funds on all relevant activities;
• Coordinate on activities of mutual interest with NIDRR-funded projects including the Rehabilitation Engineering Research Centers on Information Technology Access and Telecommunications Access and the Disability and Business Technical Assistance Centers; and
• Collaborate with relevant Federal agencies responsible for the administration of public laws that address access to and usability of electronic and information technology for individuals with disabilities including, but not limited to, the General Services Administration, the Access Board, the Federal Communications Commission, the Rehabilitation Services Administration, and other relevant Federal agencies identified by NIDRR.
The Assistant Secretary will use the selection criteria in 34 CFR 350.54 to evaluate applications under this program. The maximum score for all the criteria is 100 points; however, the Assistant Secretary also proposes to use the following criterion so that up to an additional ten points may be earned by an applicant for a total possible score of 110 points:
Within this absolute priority, we will give the following competitive preference to applications that are otherwise eligible for funding under this priority:
Up to ten (10) points based on the extent to which an application includes effective strategies for employing and advancing in employment qualified individuals with disabilities in projects awarded under this absolute priority. In determining the effectiveness of those strategies, we will consider the applicant's success, as described in the application, in employing and advancing in employment qualified individuals with disabilities in the project.
For purposes of this competitive preference, applicants can be awarded up to a total of 10 points in addition to those awarded under the published selection criteria for this priority. That is, an applicant meeting this competitive preference could earn a maximum total of 110 points.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at either of the preceding sites. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC., area at (202) 512-1530.
The official version of document is the document published in the
29 U.S.C. 761a(g) and 762.
The notice of final funding priority on Information Technology Technical Assistance and Training Center is published elsewhere in this issue of the
This notice also invites interested parties to participate in a pre-application meeting to discuss the funding priority for the Information Technology Technical Assistance and Training Center and to receive technical assistance through individual consultation and information about the funding priority. The pre-application meeting will be held on July 31, 2000 at the Department of Education, Office of Special Education and Rehabilitative Services, Switzer Building, Room 3065, 330 C St. SW, Washington, DC between 10 a.m. and 12 a.m. NIDRR staff will also be available at this location from 1:30 p.m. to 5 p.m. on that same day to provide technical assistance through individual consultation and information about the funding priority. NIDRR will make alternate arrangements to accommodate interested parties who are unable to attend the pre-application meeting in person. For further information contact William Peterson, Switzer Building, room 3425, 330 C Street, SW, Washington, DC 20202. Telephone (202) 205-9192. If you use a TTY, please call (202) 205-4475.
The meeting site is accessible to individuals with disabilities, and a sign language interpreter will be available. If you need an auxiliary aid or service other than a sign language interpreter in order to participate in the meeting (
This notice supports the National Education Goal that calls for all Americans to possess the knowledge and skills necessary to compete in a global economy and exercise the rights and responsibilities of citizenship.
The Secretary will reject without consideration or evaluation any application that proposes a project funding level that exceeds the stated maximum award amount in any year (See 34 CFR 75.104(b)).
The estimate of funding level and awards in this notice do not bind the Department of Education to a specific level of funding or number of grants.
Individuals with disabilities may obtain a copy of the application package in an alternate format by contacting the GCST. However, the Department is not able to reproduce in an alternate format the standard forms included in the application package.
Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW, room 3414, Switzer Building, Washington, D.C. 20202-2645. Telephone: (202) 205-5880. Individuals who use a telecommunications device for the deaf (TDD) may call the TDD number at (202) 205-4475.
Individuals with disabilities may obtain this document in an alternate format (
You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at either of the following sites:
To use PDF you must have Adobe Acrobat Reader, which is available free at either of the preceding sites. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 760-764.
(1) In order to reflect the suspension of benefits under the GSP with respect to Belarus, general note 4(a) of the HTS is modified by deleting “Belarus” from the list of independent countries, effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after 60 days after the date of publication of this proclamation in the
(2) In order to terminate the designation of Malta, French Polynesia, New Caledonia, and Slovenia as beneficiary developing countries under the GSP, general note 4(a) of the HTS is modified by:
(a) deleting “Malta” and “Slovenia” from the list of independent countries, and
(b) deleting “French Polynesia” and “New Caledonia” from the list of nonindependent countries and territories, effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after January 1, 2002.
(3) Any provisions of previous proclamations and Executive Orders that are inconsistent with the actions taken in this proclamation are superseded to the extent of such inconsistency.