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Presidential Documents
Trade Representative, Office of United States
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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.
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Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes Airworthiness Directive (AD) 80-04-08, which requires inspecting (one-time) the fuel line and map light switch in the left hand forward door post for chafing or arcing on certain Cessna Aircraft Company (Cessna) Model 172N, R172K, F172N, and FR172K airplanes and repairing any damage found. AD 80-04-08 also requires providing at least a 0.50-inch clearance between the map light switch and the fuel line; and installing a switch cover (insulator) over the map light switch. This AD requires you to extend the inspections and installation of the switch cover requirement to certain 172N, 172P, R172K, 172RG, F172N, F172P, FR172J, and FR172K series airplanes. This AD also requires replacement of the fuel line, if damaged; and makes the switch cover inspection and replacement repetitive. This AD is the result of FAA receiving several reports of incidents of electrical shorts on Cessna Model 172N airplanes. The actions specified by this AD are intended to detect and correct any chafing between the map light switch and the bordering fuel line, which could result in a fuel leak and an in-flight fire.
This AD becomes effective on December 27, 2001.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of December 27, 2001.
You may get the service information referenced in this AD from the Cessna Aircraft Company, PO Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800, facsimile: (316) 942-9006. You may examine this information at the Federal Aviation Administration (FAA), Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-26-AD, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Mr. Clyde Erwin, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209, telephone: (316) 946-4149; facsimile: (316) 946-4407.
AD 80-04-08 was the result of instances of chafing between the map light switch and the adjacent fuel line on the affected airplanes. When the chafing caused an electrical short, insulation melted from the map light wire and a hole was burned in the fuel line.
AD 80-04-08 applied to only certain serial numbers and did not cover all of the models that have map light switches in the doorpost.
Several commenters agree that FAA is correct in adding aircraft serial numbers to the proposed AD.
We concur that accomplishment of the referenced service bulletin will correct the unsafe condition. However, we can only require compliance through AD action.
We are not changing the AD based on these comments.
We are not changing the AD based on these comments.
We are changing the final rule to include these airplane models. None of these airplanes are currently on the U.S. Register so this would not add any additional burden upon the public.
We are not changing the final rule as a result of these comments.
The FAA has no way of determining the number of repetitive inspections each owner/operator will incur over the life of each of the affected airplanes, or how many covers (insulators) or fuel lines will need to be replaced. If replacement parts are required as a result of the inspection, the estimated cost per airplane for the cover (insulator) is $6.00. The cost for a replacement fuel line varies from $26.00 to $129.00, plus labor, depending on the airplane model.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a)
(b)
(c)
(d)
The compliance times specified in Cessna Service Bulletin SEB00-1, dated January 17, 2000, are different from those required by this AD. The compliance times in this AD take precedence over those in the service bulletin.
(e)
(1) You may use an alternative method of compliance or adjust the compliance time if:
(i) Your alternative method of compliance provides an equivalent level of safety; and
(ii) The Manager, Wichita Aircraft Certification Office (ACO), approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita ACO.
(2) Alternative methods of compliance approved in accordance with AD 80-04-08, which is superseded by this AD, are not approved as alternative methods of compliance with this AD.
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 (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(h)
(i)
(j)
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD) that applies to certain Reims Aviation S.A. (Reims) Model F406 airplanes. This AD requires you to repetitively inspect the canted rib upper cap in the center wing carry-through area for cracks, and, if cracks are found, immediately repair the cracks or modify this area depending on the extent of any cracks found. This AD also requires you to modify the canted rib upper cap at a certain time period as terminating action for the repetitive inspections. This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for France. The actions specified by this AD are intended to detect and correct cracks in the canted rib upper cap in the center wing carry-through area, which could result in structural failure of the wing with possible loss of control of the airplane.
This AD becomes effective on January 7, 2002.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of January 7, 2002.
You may get the service information referenced in this AD from Cessna Aircraft Company, Product Support, PO Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800; facsimile: (316) 942-9006. You may view this information at the Federal Aviation Administration (FAA), Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 99-CE-28-AD, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Brian A. Hancock, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4143, facsimile: (816) 329-4090.
We estimate the following costs to do any necessary modifications that will be required because of the inspection:
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that the rule will, the Agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a)
(b)
(c)
(d)
(e)
(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.
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 (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(h)
(i)
The subject of this AD is addressed in French AD 1999-087(A), dated February 24, 1999.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is reclassifying three anesthesiology preamendments devices from class III (premarket
This rule is effective December 17, 2001.
Christy Foreman, Division of Cardiovascular and Respiratory Devices (HFZ-450), Center for Devices and Radiological Health, Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-443-8609.
In the
In this final rule, FDA is reclassifying the three devices into class II with a guidance document entitled “Class II Special Controls Guidance Document: Indwelling Blood Gas Analyzers; Final Guidance for Industry and FDA” as the special control. The guidance document combines and supersedes “Guidance for Electrical Safety, Electromagnetic Compatibility and Mechanical Testing for Indwelling Blood Gas Analyzer Premarket Notification Submissions” and “Guidance for Indwelling Blood Gas Analyzer 510(k) Submissions,” which in turn incorporated the special controls listed separately in the proposed rule to reclassify these devices.
The devices that are being reclassified in this final rule are:
• Indwelling blood carbon dioxide partial pressure (Pco
• Indwelling blood hydrogen ion concentration (pH) analyzer (21 CFR 868.1170), and
• Indwelling blood oxygen partial pressure (Po
FDA has concluded, based on a review of the available information, that the guidance document “Special Controls Guidance Document: Indwelling Blood Gas Analyzers; Final Guidance for Industry and FDA,” in conjunction with general controls, provides reasonable assurance of the safety and effectiveness of these three devices. Elsewhere in this issue of the
The agency has determined under 21 CFR 25.34(b) that this final rule is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has examined the impacts of the rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4)). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Reclassification of these devices from class III will relieve all manufacturers of these devices of the cost of complying with the premarket approval requirements in section 515 of the act (21 U.S.C. 360e). Moreover, compliance with special controls proposed for these devices will not impose significant new costs on affected manufacturers because most of these devices already comply with the proposed special controls. Because reclassification will reduce regulatory costs with respect to these devices, it will impose no significant economic impact on any small entities, and it may permit small potential competitors to enter the marketplace by lowering their costs. The agency therefore certifies that this final rule will not have a significant economic impact on a substantial number of small entities. In addition, this rule will not impose costs of $100 million or more on either the private sector or State, local, and tribal governments in the aggregate, and therefore a summary statement of analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the order and, consequently, a federalism summary impact statement is not required.
FDA concludes that this final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
Medical devices.
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(b)
(b)
(b)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is publishing a final rule exempting from the premarket notification requirements the fluoroscopic compression device, a manual compression device that allows a radiologist to press on the abdomen during a fluoroscopic procedure without exposing his or her hand to the x-ray beam. The device is classified as an accessory to the image-intensified fluoroscopic x-ray system. FDA received a petition requesting an exemption for the F-Spoon device, a type of fluoroscopic manual compression device. FDA is expanding the exemption for this type of generic device to include other fluoroscopic compression devices. FDA is publishing this order in accordance with the Food and Drug Administration Modernization Act of 1997 (FDAMA).
This rule is effective December 17, 2001.
Heather S. Rosecrans, Center for Devices and Radiological Health (HFZ-404), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-594-1190.
Under section 513 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360c), FDA must classify devices into one of three regulatory classes: Class I, class II, or class III. FDA classification of a device is determined by the amount of regulation necessary to provide a reasonable assurance of safety and effectiveness. Under the Medical Device Amendments of 1976 (the 1976 amendments (Public Law 94-295)), as amended by the Safe Medical Devices Act of 1990 (the SMDA (Public Law 101-629)), devices are to be classified into class I (general controls) if there is information showing that the general controls of the act are sufficient to assure safety and effectiveness; into class II (special controls), if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide such assurance; and into class III (premarket approval), if there is insufficient information to support classifying a device into class I or class II and the device is a life-sustaining or life-supporting device or is for a use that is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury.
Most generic types of devices that were on the market before the date of the 1976 amendments (May 28, 1976) (generally referred to as preamendments devices) have been classified by FDA under the procedures set forth in section 513(c) and (d) of the act through the issuance of classification regulations into one of these three regulatory classes. Devices introduced into interstate commerce for the first time on or after May 28, 1976, (generally referred to as postamendments devices) are classified through the premarket notification process under section 510(k) of the act (21 U.S.C. 360(k)). Section 510(k) of the act and the implementing regulations (21 CFR part 807) require persons who intend to market a new device to submit a premarket notification report (510(k)) containing information that allows FDA to determine whether the new device is “substantially equivalent” within the meaning of section 513(i) of the act to a legally marketed device that does not require premarket approval.
On November 21, 1997, the President signed into law FDAMA (Public Law 105-115). Section 206 of FDAMA, in part, added a new section 510(m) to the act. Section 510(m)(1) of the act requires FDA, within 60 days after enactment of FDAMA, to publish in the
Section 510(m)(2) of the act provides that 1 day after date of publication of the list under section 510(m)(1) of the act, FDA may exempt a device on its own initiative or upon petition of an interested person, if FDA determines that a 510(k) is not necessary to provide reasonable assurance of the safety and effectiveness of the device. This section requires FDA to publish in the
There are a number of factors FDA may consider to determine whether a 510(k) is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in the guidance that the agency issued on February 19, 1998, entitled “Procedures for Class II
On March 25, 2001, FDA received a petition requesting an exemption from premarket notification for the F-Spoon, a manual compression device that allows a radiologist to press on the abdomen during a fluoroscopic procedure without exposing his or her hand to the x-ray beam. In the
The agency has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule will relieve a burden and simplify the marketing of these devices, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities. Therefore, under the Regulatory Flexibility Act, no further analysis is required.
FDA concludes that this final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the order and, consequently, a federalism summary impact statement is not required.
1. The authority citation for 21 CFR part 892 continues to read as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(b)
Pension Benefit Guaranty Corporation.
Final rule.
The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in December 2001. Interest assumptions are also published on the PBGC's Web site (
December 1, 2001.
Harold J. Ashner, Assistant General Counsel, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.
Three sets of interest assumptions are prescribed: (1) a set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).
Accordingly, this amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during December 2001, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during December 2001, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during December 2001.
For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 6.10 percent for the first 20 years following the valuation date and 6.25 percent thereafter. These interest assumptions represent a decrease (from those in effect for November 2001) of 0.40 percent for the first 20 years following the valuation date and are otherwise unchanged.
The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 4.50 percent for the period during which a benefit is in pay status, and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease (from those in effect for November 2001) of 0.25 percent for the period during which a benefit is in pay status and are otherwise unchanged.
For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).
The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.
Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during December 2001, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Pensions.
In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.
Office of Foreign Assets Control, Treasury.
Amendment of final rule.
The Treasury Department is amending appendix A to 31 CFR chapter V to add or remove, as appropriate, the names of individuals and entities designated as specially designated narcotics traffickers, a foreign terrorist organization, or blocked persons or specially designated nationals designated pursuant to Executive Orders 13088, 13192, or 13219; amending the notes to the appendices to 31 CFR chapter V to reflect the revisions to appendix A and the publication of the Taliban (Afghanistan) Sanctions Regulations, 31 CFR part 545; and amending appendix I to 31 CFR part 539 to remove two entities previously designated as designated foreign persons.
November 9, 2001.
Office of Foreign Assets Control, Department of the Treasury, Washington, D.C. 20220, tel.: 202/622-2520.
This document is available as an electronic file on The Federal Bulletin Board the day of publication in the
Appendix A to 31 CFR chapter V lists the names of blocked persons, specially designated nationals, specially designated terrorists, foreign terrorist organizations, and specially designated narcotics traffickers with respect to whom transactions are subject to the various economic sanctions programs administered by the Treasury Department's Office of Foreign Assets Control (“OFAC”). OFAC, acting under authority delegated by the Secretary of the Treasury, is amending appendix A to add or remove, as appropriate, the names of individuals and entities designated as specially designated narcotics traffickers, a foreign terrorist organization, or blocked persons or specially designated nationals designated pursuant to Executive Orders 13088, 13192, or 13219. OFAC is also amending notes 4 and 6 to the notes to the appendices to 31 CFR chapter V to reflect the revisions to appendix A and the publication of the Taliban (Afghanistan) Sanctions Regulations, 31 CFR part 545.
As of June 1, 2001, all property and interests in property, including but not limited to all accounts, that are or come within the United States or that are or come within the possession or control of U.S. persons, including their overseas branches, that are owned or controlled by any of those twelve persons are with limited exceptions blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in. All transactions or dealings by U.S. persons or within the United States in property or interests in property of any of those twelve persons are prohibited unless licensed by OFAC or otherwise authorized.
Section 303 of AEDPA, as implemented in part by § 597.201 of the FTO Regulations, requires financial institutions in possession or control of funds in which a foreign terrorist organization or its agent has an interest to block such funds except as authorized pursuant to the FTO Regulations, and to file reports in accordance with the FTO Regulations. Financial institutions that violate section 303(a)(2) of AEDPA, 18 U.S.C. 2339B(a)(2), and the FTO Regulations are subject to civil penalties administered by OFAC.
Executive Order 13192 also imposes sanctions on designated family members, supporters, and members of the regime of former FRY(S&M) President Slobodan Milosevic, as well as certain persons under open indictment by the International Criminal Tribunal for the former Yugoslavia and other specified parties. In an annex to the order, President Clinton identified eighty-one individuals with respect to whom transactions currently are subject to those sanctions. Those individuals are added to appendix A as blocked persons and are identified by the term “[FRYM].” Notes 4 and 6 to the appendices to 31 CFR chapter V are amended to add the identifying term “[FRYM].”
As of January 19, 2001, all property and interests in property, including but not limited to all accounts, that are or come within the United States or that are or come within the possession or control of U.S. persons, including their overseas branches, that are owned or controlled by any of those eighty-one persons are with limited exceptions blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in. All transactions or dealings by U.S. persons or within the United States in property or interests in property of any of those eighty-one persons are prohibited unless licensed by OFAC or otherwise authorized.
As of June 27, 2001, all property and interests in property, including but not limited to all accounts, that are or come within the United States or that are or come within the possession or control of U.S. persons, including their overseas branches, that are owned or controlled by any of those twenty-three individuals or five organizations are with limited exceptions blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in. This blocking includes, but is not limited to, the prohibition of the making or receiving by a United States person of any contribution or provision of funds, goods, or services to or for the benefit of any of those individuals or organizations.
Taliban (Afghanistan) Regulations. On January 11, 2001, OFAC published in the
Appendix I to 31 CFR part 539, the Weapons of Mass Destruction Trade Control Regulations, lists the names of foreign persons with respect to whose goods, technology, or services are subject to import prohibitions, based upon a determination by the Secretary of State that the persons have contributed to the proliferation of weapons of mass destruction. On December 19, 2000, the Department of State issued Public Notice 3514 (65 FR 79441), announcing its determination on November 17, 2000, that it is in the foreign policy and national security interests of the United States to remove the restrictions imposed on July 30, 1998, with respect to INOR Scientific Center (“INOR”) and Polyus Scientific Production Association (“Polyus”). Those two entities are removed from appendix I. The authority citation to part 539 is amended to reflect the publication of Executive Order 13094 in the 1998 compilation of Presidential documents.
As of November 17, 2000, the general prohibition on the importation into the United States of goods, technology, or services produced or provided by a “designated foreign person” no longer applies to either INOR or Polyus or to any entity they own or control, and U.S. persons are no longer prohibited from engaging in import-related transactions involving goods, technology, or services produced or provided by any of those entities.
Because this rule involves a foreign affairs function, Executive Order 12866 and the provisions of the Administrative Procedure Act (5 U.S.C. 553), requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.
For the reasons set forth in the preamble, and under the authority of 3 U.S.C. 301; 8 U.S.C. 1189; 18 U.S.C. 2339B; 21 U.S.C. 1901-1908; 22 U.S.C. 2751-2799aa-2; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; E.O. 12938, 3 CFR, 1994 Comp., p. 950; E.O. 13088, 63 FR 32109, 3 CFR, 1998 Comp., p. 191; E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13121,
* * *
4. Abbreviations: “a.k.a.” means “also known as”; “f.k.a.” means “formerly known as”; “n.k.a.” means “now known as”; “DOB” means “date of birth”; “DWT” means “deadweight”; “FRYM” means “Federal Republic of Yugoslavia (Serbia and Montenegro)—Milosevic”; “GRT” means “Gross Registered Tonnage”; “POB” means “place of birth”.
6. References to regulatory parts in chapter V or other authorities:
3 U.S.C. 301; 22 U.S.C. 2751-2799aa-2; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200.
Office of the Secretary, DoD.
Final rule.
Representatives of the military departments, defense agencies and other DoD activities, have agreed on a final rule that amends the interim rule as a result of comments received and incorporates clarification enacted in fiscal year 2001 that limits Comptroller General access in certain situations. This final rule requires inclusion of a
This rule is effective December 17, 2001. This final rule will apply for solicitations issued on or after December 17, 2001. This final rule may be used for new prototype awards that result from solicitations issued prior to that date.
Teresa Brooks, (703) 695-8567.
Section 845 of the National Defense Authorization Act for Fiscal Year 1994, Pub. L. 103-160, as amended, authorizes the Secretary of a Military Department, the Director of Defense Advanced Research Projects Agency and any other official designated by the Secretary of Defense, to enter into transactions other than contracts, grants or cooperative agreements in certain situations for prototype projects that are directly relevant to weapons or weapon systems proposed to be acquired or developed by the Department of Defense.
Such transactions are commonly referred to as “other transaction” agreements for prototype projects and are generally not subject to statutes or regulations limited in applicability to procurement contracts.
Section 801 of the National Defense Authorization Act for Fiscal Year 2000 establishes a requirement that an “other transaction” agreement for a prototype project that provides for payments in a total amount in excess of $5,000,000 include a clause that provides Comptroller General access to records. Section 804 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 clarified Comptroller General access when the only cooperative agreements or “other transactions” that the party, entity, or subordinate element entered into with government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under 10 U.S.C. 2371 or Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Pub. L. 103-160; 10 U.S.C. 2371 note).
An interim rule was published in the
The respondent cited a September 13, 1999, Under Secretary of Defense for Acquisition and Technology letter stating that DoD was considering issuing guidance for prototype other transactions (OTs) in the form of a DoD Directive. The respondent expressed its understanding that the guidance may include changes regarding implementation of Section 801 of the National Defense Authorization Act of Fiscal Year 2000. The respondent expressed concern that there may be multiple and potentially inconsistent guidance being promulgated regarding the inclusion of the Comptroller General access clauses in these OTs. The respondent urged DoD to consolidate guidance regarding these agreements to avoid redundant and potentially inconsistent guidance.
The respondent expressed concern that although the language of the interim rule appears to have been drafted to exclude coverage of commercial companies, under certain circumstances, a strict reading of the regulation would cause the Comptroller General access clause to apply to the very parties they believe the Congress intended to exempt. Two scenarios were identified where the respondent thought this could occur. First, if a commercial company as a member of a consortium with traditional defense companies entered into a prototype OT that includes the Comptroller General access clause, then the commercial company has now “entered into” an agreement that provides for audit access and; therefore, would no longer be excepted from the Comptroller General access requirement. The second scenario would involve an unsophisticated commercial company that unintentionally executes a prototype OT that provides for audit access, eliminating its future exemption. The respondent recommended specific language be added that excepted any entity that has entered into only OTs or FAR Part 12 contracts.
We cannot agree with the respondent's proposed change excepting any entity that has entered into only OTs or FAR Part 12 contracts. FAR Part 12 contracts provide for Comptroller General audit access. In addition, previous OTs may have also provided for audit access by a government entity. By statute, the clause is required to be included in OTs with entities that have entered into such contracts or agreements. However, to assure that there is no misunderstanding regarding this requirement, the final rule clarifies that the presence of the clause is necessary to fully implement the law by insuring flow-down to participating entities which are not parties to the agreement. The final rule also clarifies that parties or participating entities which have not entered into a contract, grant, cooperative agreement or “other transaction” that provides for audit access by a government entity in the year prior to the agreement are specifically excluded from coverage of the clause, as provided in the law.
It has been determined that this rule is not a significant rule as defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.
It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that this part is not subject to the Regulatory Flexibility Act (5 U.S.C. 601
It has been certified that this rule does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.
It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132.
(To be inserted by the Federal Register Liaison Officer.)
Section 801 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65) and Section 804 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398).
This part implements section 801 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65) and section 804 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398). It establishes the requirement for the inclusion of a clause in transactions other than contracts, grants or cooperative agreements for prototype projects awarded under authority of 10 U.S.C. 2371 that provides Comptroller General access to records when payments total an amount in excess of $5,000,000.
This part applies to the Secretary of a Military Department, the Directors of the Defense Agencies, and any other official designated by the Secretary of Defense to enter into transactions other than contracts, grants or cooperative agreements for prototype projects that are directly relevant to weapons or weapon systems proposed to be acquired or developed by the Department of Defense, under authority of 10 U.S.C. 2371. Such transactions are commonly referred to as “other transaction” agreements and are hereafter referred to as agreements.
(a) A clause must be included in solicitations and agreements for prototype projects awarded under authority of 10 U.S.C. 2371, that provide for total government payments in excess of $5,000,000 to allow Comptroller General access to records that directly pertain to such agreements.
(b) The clause referenced in paragraph (a) of this section will not apply with respect to a party or entity, or subordinate element of a party or entity, that has not entered into any other contract, grant, cooperative agreement or “other transaction” agreement that provides for audit access by a government entity in the year prior to the date of the agreement. The clause must be included in all agreements described in paragraph (a) of this section in order to fully implement the law by covering those participating entities and their subordinate elements which have entered into prior agreements providing for Government audit access, and are therefore not exempt. The presence of the clause in an agreement will not operate to require Comptroller General access to records from any party or participating entity, or subordinate element of a party or participating entity, or subordinate element of a party or participating entity, which is otherwise exempt under the terms of the clause and the law.
(c)(1) The right provided to the Comptroller General in a clause of an agreement under paragraph (a) of this part, is limited as provided by subparagraph (c)(2) of this part in the case of a party to the agreement, an entity that participates in the performance of the agreement, or a subordinate element of that party or entity, if the only cooperative agreements or “other transactions” that the party, entity, or subordinate element entered into with government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under 10 U.S.C. 2371 or Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Pub. L. 103-160; 10 U.S.C. 2371 note).
(c)(2) The only records of a party, other entity, or subordinate element referred to in subparagraph (c)(1) of this part that the Comptroller General may examine in the exercise of the right referred to in that subparagraph, are records of the same type as the records that the government has had the right to examine under the audit access clauses of the previous cooperative agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element.
(d) The head of the contracting activity (HCA) that is carrying out the agreement may waive the applicability of the Comptroller General access requirement if the HCA determines it would not be in the public interest to apply the requirement to the agreement. The waiver will be effective with respect to the agreement only if the HCA transmits a notification of the waiver to the Committees on Armed Services of the Senate and the House of Representatives, the Comptroller General, and the Director, Defense Procurement before entering into the agreement. The notification must include the rationale for the determination.
(e) The HCA must notify the Director, Defense Procurement of situations where there is evidence that the Comptroller General Access requirement caused companies to refuse to participate or otherwise restricted the Department's access to companies that typically do not do business with the Department.
(f) In no case will the requirement to examine records under the clause referenced in paragraph (a) of this section apply to an agreement where more than three years have passed after final payment is made by the government under such an agreement.
(g) The clause referenced in paragraph (a) of this section, must provide for the following:
(1) The Comptroller General of the United States, in the discretion of the Comptroller General, shall have access to and the right to examine records of any party to the agreement or any entity that participates in the performance of this agreement that directly pertain to, and involve transactions relating to, the agreement.
(2) Excepted from the Comptroller General access requirement is any party
(3)(A) The right provided to the Comptroller General is limited as provided in subparagraph (B) in the case of a party to the agreement, any entity that participates in the performance of the agreement, or a subordinate element of that party or entity if the only cooperative agreements or “other transactions” that the party, entity, or subordinate element entered into with government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under 10 U.S.C. 2371 or Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Pub. L. 103-160; 10 U.S.C. 2371 note).
(B) The only records of a party, other entity, or subordinate element referred to in subparagraph (A) that the Comptroller General may examine in the exercise of the right referred to in that subparagraph are records of the same type as the records that the government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element.
(4) This clause shall not be construed to require any party or entity, or any subordinate element of such party or entity, that participates in the performance of the agreement, to create or maintain any record that is not otherwise maintained in the ordinary course of business or pursuant to a provision of law.
(5) The Comptroller General shall have access to the records described in this clause until three years after the date the final payment is made by the United States under this agreement.
(6) The recipient of the agreement shall flow down this provision to any entity that participates in the performance of the agreement.
Coast Guard, DOT.
Final rule.
The Coast Guard is changing the operating regulations governing the Snake Creek drawbridge (US 1) connecting Windley Key and Plantation Key at Islamorada, Florida. This rule requires the drawbridge to open on signal, except that from 8 a.m. until 4 p.m., the draw need open only on the hour and half-hour.
This rule is effective December 17, 2001.
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 [CGD07-01-056] and are available for inspection or copying at Seventh Coast Guard District, Bridge Branch, Miami, Florida, 33131 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Mr. Barry Dragon, Project Officer, Seventh Coast Guard District, Bridge Branch, at (305) 415-6743.
On July 19, 2001 we published a notice of proposed rulemaking entitled Drawbridge Operation Regulations; Snake Creek Drawbridge, Islamorada, FL, in the
The Snake Creek bascule bridge has a vertical clearance of 27 feet at mean high water and a horizontal clearance of 60 feet. It is a two lane, narrow, undivided arterial roadway, which is the only roadway into and out of the Florida Keys and is severely congested due to insufficient capacity. The bridge's current operating schedule is governed by the general bridge operation provision in 33 CFR § 117.5 that requires the bridge to open on demand.
The bridge owner requested a modification of the existing schedule to allow the drawbridge to open on signal, except from 7 a.m. until 6 p.m. when the draw would open on the hour and half-hour. This modification would ease the flow of vehicular traffic during peak traffic periods.
The Coast Guard received one comment letter regarding this proposed rule. The comment requested that the hour and half-hour regulation be from 8 a.m. until 4 p.m. instead of the proposed period from 7 a.m. until 6 p.m. After consultation with the bridge owner and city officials, we agree with this comment and have changed the proposed schedule accordingly.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
The Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary because the rule will still allow the bridge to open on a regular schedule.
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.
This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit under the Snake Creek drawbridge. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities because the rule will still allow the bridge to open on a regular schedule.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard has considered the environmental impact of this action and has determined under Figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1D, that this rule is categorically excluded from further environmental documentation.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
Bridges.
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Public Law 102-587, 106 Stat. 5039.
The draw of the Snake Creek bridge, at Islamorada, Florida, shall open on signal, except that from 8 a.m. to 4 p.m., the draw need open only on the hour and half-hour.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing temporary safety zones for the Icebreaker Youth Rowing Championship to be held on November 17, 2001 in Boston, MA. These safety zones are needed to protect the maritime public from any hazards. This rule will temporarily prohibit entry into all waters of Boston Inner Harbor within 300 yards around vessels participating in the Icebreaker Youth Rowing Championship.
This rule is effective from 8 a.m. until 4:30 p.m. on November 17, 2001.
Documents as indicated in this preamble are available for inspection or copying at Marine Safety Office Boston, 455 Commercial Street, Boston, MA between the hours of 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Chief Petty Officer Michael Popovich, Marine Safety Office Boston, Waterways Safety and Response Division, at (617) 223-3067.
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after publication in
The Icebreaker Youth Rowing Championship will be taking place in Boston Inner Harbor on Saturday, November 17, 2001. This event is a round-robin race with two starting points, the Charles River Dam to Pier 2 at the Charlestown Navy Yard and Pier 4 at the Charlestown Navy Yard to a point off the U.S. Coast Guard Support Center. There will be four to six participating vessels, oared row boats, in this race. This regulation establishes safety zones in the waters of Boston Inner Harbor within 300 yards of the participating vessels.
These safety zones are in effect from 8 a.m. to 4:30 p.m. on November 17, 2001. These safety zones prohibit entry into or movement within these portions of the Boston Inner Harbor and are needed to protect participating vessels and their crews, and the maritime public from possible collision between participating vessels and others in the maritime community. Marine traffic may transit safely outside of the safety zones during the event. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via local notice to mariners and marine information broadcasts.
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.
Although this regulation prevents traffic from transiting a portion of the Boston Inner Harbor during this event, the effect of this regulation will not be significant for several reasons: the minimal time that vessels will be restricted from the zones, that vessels may safely transit outside of the safety zones, and advance notifications which will be made to the local maritime community by marine information broadcasts.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard 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 rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Boston Inner Harbor from 8 a.m. until 4:30 p.m. November 17, 2001. These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: vessel traffic can safely pass outside of the safety zones during the event, the event is limited in duration, and the Coast Guard will issue maritime advisories before the effective period via marine information broadcasts.
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
The Coast Guard analyzed this rule under Executive Order 13132 and has 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 costs. This rule would not impose an unfunded mandate.
This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The Coast Guard analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not pose an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations that
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
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.
(a)
(b)
(c)
(2) All vessel operators shall comply with the instructions of the COTP or the designated on-scene U.S. Coast Guard patrol personnel. On-scene Coast Guard patrol personnel include commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, local, state, and federal law enforcement vessels.
Environmental Protection Agency (EPA).
Partial removal of direct final rule.
On September 12, 2001 (65 FR 47392), EPA published a direct final approval of a revision to the California State Implementation Plan (SIP) which pertained to the Bay Area Air Quality Management District (BAAQMD) Rule 8-51, Adhesive and Sealant Products. The direct final action was published without prior proposal because EPA anticipated no adverse comment. EPA stated in the direct final rule that if EPA received adverse comment by October 12, 2001, EPA would publish a timely removal in the
November 15, 2001.
Yvonne Fong, Rulemaking Office (Air-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1199.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Interim final determination.
On September 12, 2001 in the
This interim final determination is effective November 15, 2001. Comments must be received by December 17, 2001.
Comments should be sent to: Andrew Steckel, Rulemaking Section (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
The state submittal and EPA's analysis for that submittal, which are
Yvonne Fong, Rulemaking Section (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1199.
On June 23, 1998, the State submitted BAAQMD Rule 8-51, for which EPA published a limited disapproval in the
Based on the proposed approval, EPA believes that it is more likely than not that the State has corrected the original disapproval deficiencies. Therefore, EPA is taking this final rulemaking action, effective on publication, finding that the State has corrected the deficiencies. However, EPA is also providing the public with an opportunity to comment on this final action. If, based on any comments on this action and any comments on EPA's proposed full approval of the State's submittal, EPA determines that the State's submittal is not fully approvable and this final action was inappropriate, EPA will either propose or take final action finding that the State has not corrected the original disapproval deficiencies. As appropriate, EPA will also issue an interim final determination or a final determination that the deficiency has not been corrected. Until EPA takes such an action, the application of sanctions will continue to be deferred and or stayed.
This action does not stop the sanctions clock that started for this area on November 4, 1999. However, this action will stay the application of the offsets sanction and will defer the application of the highway sanction. See 59 FR 39832 (Aug. 4, 1994). If EPA subsequently determines that the State, in fact, did not correct the disapproval deficiencies, EPA will also determine that the sanctions consequences described in the sanctions rule will apply. See 40 CFR 52.31.
EPA is taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, application of the offset sanction will be stayed and application of the highway sanction will be deferred until EPA takes action proposing or finally disapproving in whole or part the State submittal.
Because EPA has preliminarily determined that the State has an approvable plan, relief from sanctions should be provided as quickly as possible. Therefore, EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action is associated with approving state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action is associated with approving a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Hydrocarbons, incorporation by reference, Intergovernmental regulations, Reporting and recordkeeping requirements, Ozone, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Direct final rule.
EPA is announcing it is approving the State Implementation Plan (SIP) revision submitted by the state of Missouri which provides for the attainment and maintenance of the sulfur dioxide (SO
This direct final rule will be effective January 14, 2002 unless EPA receives adverse comments by December 17, 2001. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Comments may be mailed to Wayne Kaiser, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Copies of documents relative to this action are available for public inspection during normal business hours at the above-listed Region 7 location. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.
Wayne Kaiser at (913) 551-7603.
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations and control strategies to be incorporated into the Federally enforceable SIP, states must formally adopt them consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state regulation or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The Missouri SIP is published in 40 CFR part 52, subpart AA.
The actual state regulations and control strategies which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation or control strategy with a specific effective date.
Enforcement of the state regulation or control strategy before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
As mentioned above, we have established ambient air quality standards for a number of pollutants, including SO
In 1995, there was one exceedance of the 24-hour SO
The source of the SO
The Missouri Department of Natural Resources (MDNR) and the SJLP conducted an extensive air dispersion modeling analysis to determine the appropriate source control strategy. The modeling was performed in accordance with the requirements of the
MDNR negotiated enforceable emission limitations and other control measures, means, and techniques, as well as schedules and timetables for compliance, sufficient to ensure that the NAAQS for SO
These control strategy requirements were incorporated into a Consent Decree issued by MDNR to SJLP. In addition to the conditions above, the Consent Decree contains monitoring, reporting, and recordkeeping requirements sufficient to determine compliance. The Consent Decree also contains provisions for stipulated penalties in the event SJLP fails to adhere to the requirements of the Consent Decree.
MDNR submitted a request to us to approve the Consent Decree as a revision to the Missouri SIP. Additional information is contained in the state submittal and in the EPA Technical Support Document (TSD) for this notice which can be obtained by contacting us at the address above.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the TSD, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
We are approving a revision to the Missouri SIP which requires source specific SO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. section 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
a. By adding a table heading to the table in paragraph (d).
b. By adding a new entry to the end of the table in paragraph (d).
The additions read as follows:
(d) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA approves the State implementation plan (SIP) revisions regarding the Missoula City-County Air Pollution Control Program, as submitted by the Governor of Montana with a letter dated April 30, 2001. On November 17, 2000, the Montana Board of Environmental Review (MBER) adopted the revisions to the Missoula program rules regarding program authority and administration, definitions, failure to attain standards, emergency episode planning, general provisions, standards for stationary sources (including air quality permit program), outdoor burning, fugitive particulate, solid fuel burning devices, fuels, motor vehicles, enforcement and administrative procedures, and penalties. EPA's approval makes these revisions federally enforceable. In addition, the State requested that rules of the Missoula program that are not appropriate for incorporation into the SIP be removed from the federally approved plan. Finally, the Governor's April 30, 2001 submittal consists of several other revisions to Montana regulations, which will be handled separately.
This direct final rule is effective on January 14, 2002 without further notice, unless EPA receives adverse comment by December 17, 2001. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Mail written comments to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2405. Documents relevant to this action can be perused during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2405. Copies of the incorporation by reference material are available at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460. Copies of the State documents relevant to this action are available at the Montana Department of Environmental Quality, 1520 E. 6th Avenue, Helena, Montana 59620-0901.
Amy Platt, Environmental Protection Agency, Region VIII, (303) 312-6449.
Throughout this document wherever “we” or “our” is used, it means EPA.
EPA approved the Missoula nonattainment area SIP for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
EPA approved the Missoula carbon monoxide (CO) nonattainment area plan on January 16, 1986 (51 FR 2397). Subsequent revisions were approved on November 8, 1994 (59 FR 55585) regarding the oxygenated gasoline program in Missoula, December 13, 1994 (59 FR 64133) regarding CO contingency measures, and December 6, 1999 (64 FR 68034) regarding an update to the SIP narrative.
The Act requires States to follow certain procedures in developing implementation plans and plan revisions for submission to EPA. Sections 110(a)(2) and 110(l) of the Act provide that each implementation plan a State submits must be adopted after reasonable notice and public hearing.
We also must determine whether a submittal is complete and therefore warrants further review and action (see section 110(k)(1) of the Act and 57 FR 13565). Our completeness criteria for SIP submittals can be found in 40 CFR part 51, appendix V. We attempt to determine completeness within 60 days of receiving a submission. However, the law considers a submittal complete if we don't determine completeness within six months after we receive it.
To provide for public comment, the Montana Board of Environmental Review (MBER), after providing adequate notice, held a public hearing on November 17, 2000 to address the revisions to the Missoula program. At the conclusion of the public hearing, the MBER approved the revisions by teleconference which was affirmed by a Board Order dated November 30, 2000. By approving the revisions, the MBER made them enforceable at the State level to satisfy the requirements of section 110(a)(2)(E) of the Federal Clean Air Act, U.S.C. 7410(a)(2)(E). On February 20, 2001, after providing adequate notice, the Montana Department of Environmental Quality (MDEQ) held a hearing to provide for public comment on the inclusion of the Missoula regulation revisions in the SIP.
The Governor of Montana submitted the revisions to the Missoula City-County Air Pollution Control Program regulations to EPA with a letter dated April 30, 2001. EPA determined that the SIP submittal was administratively and technically complete on June 29, 2001.
The revisions to the Missoula City-County Air Pollution Control Program regulations include extensive renumbering of the regulations. In addition, revisions were made to chapters regarding program authority and administration, failure to attain standards, emergency procedures, general provisions, standards for stationary sources (including air quality permit program), outdoor burning, fugitive particulates, solid fuel burning devices, fuels, motor vehicles, enforcement and administrative procedures, and penalties. In most cases, the rule revisions are either editorial in nature, allow for easier use through reorganization, clarify existing policy, and/or ensure consistency with the Montana and Federal Clean Air Acts. Since the State is constantly revising its rules, the county must periodically update its rules to stay consistent. Finally, several provisions are being removed because they were not appropriate for incorporation into the Federally approved SIP for various reasons. The more substantive revisions are discussed in detail below.
Numerous revisions were made to the emergency episode avoidance plan to ensure that the county plan is as stringent as, or consistent with, the State's plan. For example, new requirements were added for emergency episode operations planning, and a new rule states that the county may require sources to periodically review and update their abatement plans, and submit them for review and approval. In addition, there are some new control activities required at the various stages of the emergency episode avoidance plan. These revisions satisfy Federal Clean Air Act requirements and are approvable.
The construction and operating permits programs were combined into one “air quality permit” program. Requirements for public review of air quality permit applications were added, to be consistent with Federal requirements. Also, clarification was made that the conditions of a construction permit are permanent, so there is always an enforceable permit applicable to the source. Accordingly, a source is required to renew its combined permit every 5 years (unless another time line is warranted because additional construction that is not covered by an existing permit begins on the source, a change in operation could result in an increase of emissions at the source, the permit is revoked or modified, or the permit clearly states otherwise). A source whose permit has expired may not operate without the issuance of a renewal permit. An exemption from the requirement to obtain a construction permit for routine maintenance and repair of equipment was clarified such that it does not apply to the replacement of equipment. In addition, definitions for “commencement of construction” and “source” have been added to be consistent with Federal requirements. These revisions satisfy Federal requirements and are approvable. Please note that in addition to meeting Missoula's permitting requirements, major sources subject to Prevention of Significant Deterioration (PSD) permitting requirements and several other source categories must obtain permits to construct from the State of Montana, and all sources subject to Title V of the Clean Air Act must obtain operating permits from the State.
Numerous revisions were made to Chapter 7 to clarify the meaning of Missoula City-County Department of Health's (MCCDH's) interpretation of certain rules. For instance, the firefighter training rule now specifies that the MCCDH will inspect every structure before it is burned. While this had been MCCDH practice, it was not clear in the rules previously. In addition, Impact Zone M was increased in area. The purpose of the Impact Zone is to help protect the ambient air standards in a populated area where smoke is only one of many air pollution sources. It was originally established as a way of prioritizing the scrutiny given
The definition of “approved de-icer” was revised to allow for a “magnesium chloride based product or other product with similar dust suppression properties * * *” as opposed to strictly requiring a magnesium chloride based product. Since any alternative will have to demonstrate the same level of dust suppression, EPA believes this revision is approvable. In addition, some new rules were added to this chapter. One rule addresses construction sites and specifies what reasonable precautions must be taken to control fugitive particulate matter emissions. Another new section requires new roads to be paved in the Air Stagnation Zone. Also, provisions for additional options to control fugitive emissions from parking lots in the Air Stagnation Zone have been expanded. However, fugitive emissions from parking lots cannot increase over what they would be if paving were the control measure utilized. The revisions to this chapter meet Federal Clean Air Act requirements and are approvable.
For the most part, the changes made to this chapter were editorial in nature or merely clarified the current implementation of the program (
The State of Montana originally submitted Missoula's National Standards of Performance for New Stationary Sources (NSPS) and 40 CFR part 61 National Emissions Standards for Hazardous Air Pollutants (part 61 NESHAPs) regulations (Rules 1423 and 1424 under the old numbering system) for approval by EPA as part of the Montana SIP. EPA approved this submittal on August 30, 1995 (60 FR 45051). With a November 14, 1997 SIP submittal, the State requested revisions to these rules. Subsequent to the 1997 submittal, EPA and the State agreed that these rules should be removed from the SIP because programs for which EPA can delegate authority to the State, such as NSPS and NESHAPs and which the State, in turn, can delegate authority to the County, if appropriate, should not be incorporated into the SIP. Therefore, with its April 30, 2001 submittal, the State requested that Missoula's NSPS and part 61 NESHAPs be removed from the Federally approved SIP.
In addition, rules that are not generally related to attainment or maintenance of the National Ambient Air Quality Standards (NAAQS) also should not be incorporated in the SIP. Therefore, although the State of Montana originally submitted Missoula's fluoride emissions standards rule (Rule 1419 under the old numbering system) for approval by EPA through the SIP process (see 59 FR 2537, January 18, 1994), with its April 30, 2001 submittal, the State requested that this provision also be removed from the Federally approved SIP.
The removal of these rules conforms with the requirements of section 110(k)(6) of the Federal Clean Air Act and is approvable. Finally, with the removal of the NSPS and part 61 NESHAPs rules, EPA has completed its actions on the November 14, 1997 SIP submittal.
Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the NAAQS or any other applicable requirement of the Act. EPA approved the Missoula PM
EPA is approving the revisions to the Missoula City-County Air Pollution Control Program, as submitted by the Governor with a letter dated April 30, 2001. The revisions being approved include extensive renumbering of the program and completely replace the previous version of the program. In addition, the rules of the Missoula program that are not appropriate for incorporation into the SIP are being removed from the federally approved plan. The approved version of the Missoula program is as follows: Chapter 1, Program Authority and Administration; Chapter 2, Definitions; Chapter 3, Failure to Attain Standards; Chapter 4, Missoula County Air Stagnation and Emergency Episode Avoidance Plan; Chapter 5, General Provisions, Rules 5.101-5.103, 5.105-5.106, and 5.112; Chapter 6, Standards for Stationary Sources, Subchapter 1, Air Quality Permits for Air Pollutant Sources, Rules 6.101-6.103 and 6.105-6.109, Subchapter 5, Emission Standards, Rules 6.501-6.504, Subchapter 6, Incinerators, Rules 6.601-6.604, and Subchapter 7, Wood Waste Burners, Rules 6.701-6.703; Chapter 7, Outdoor Burning; Chapter 8, Fugitive Particulate; Chapter 9, Solid Fuel Burning Devices; Chapter 10, Fuels; Chapter 11, Motor Vehicles; Chapter 14, Enforcement and Administrative Procedures; Chapter 15, Penalties; Appendix A, Maps; Appendix B, Missoula's Emergency Episode Avoidance Plan Operations and Procedures; and Appendix D,
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.
42 U.S.C. 7401
(c) * * *
(54) The Governor of Montana submitted revisions to the Missoula City-County Air Pollution Control Program with a letter dated April 30, 2001. The revisions completely replace the previous version of the program regulations in the SIP.
(i) Incorporation by reference.
(A) November 17, 2000 Montana Board of Environmental Review order approving revisions to the Missoula City-County Air Pollution Control Program regulations.
(B) Missoula City-County Air Pollution Control Program regulations as follows: Chapter 1, Program Authority and Administration; Chapter 2, Definitions; Chapter 3, Failure To Attain Standards; Chapter 4, Missoula County Air Stagnation and Emergency Episode Avoidance Plan; Chapter 5, General Provisions, Rules 5.101-5.103, 5.105-5.106, and 5.112; Chapter 6, Standards for Stationary Sources, Subchapter 1, Air Quality Permits for Air Pollutant Sources, Rules 6.101-6.103 and 6.105-6.109, Subchapter 5, Emission Standards, Rules 6.501-6.504, Subchapter 6, Incinerators, Rules 6.601-6.604, and Subchapter 7, Wood Waste Burners, Rules 6.701-6.703; Chapter 7, Outdoor Burning; Chapter 8, Fugitive Particulate; Chapter 9, Solid Fuel Burning Devices; Chapter 10, Fuels; Chapter 11, Motor Vehicles; Chapter 14, Enforcement and Administrative Procedures; Chapter 15, Penalties; Appendix A, Maps; Appendix B, Missoula's Emergency Episode Avoidance Plan Operations and Procedures; and Appendix D, Oxygenated Fuels Program Sampling Requirements for Blending Facilities, effective November 17, 2000.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a revision to the State of Maryland's State Implementation Plan (SIP). The revision was submitted by the Maryland Department of the Environment (MDE) to establish and require reasonably available control technology (RACT) for a major source of volatile organic compounds (VOC) in Maryland, the Thomas Manufacturing Corporation, Inc. This source is located in the Baltimore ozone nonattainment area. EPA is approving this revision to establish a RACT requirement in the SIP in accordance with the Clean Air Act (CAA).
This rule is effective on December 31, 2001 without further notice, unless EPA receives adverse written comment by December 17, 2001. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Written comments should be mailed to David L. Arnold, Chief, Air Quality Planning & Information Services Branch, Air Protection Division, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460; and the Maryland Department of the Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.
Catherine Magliocchetti at (215) 814-2174 at the EPA Region III address above or by e-mail at
On February 21, 2001, the Maryland Department of the Environment (MDE) submitted a revision to the Maryland SIP that establishes and imposes a source-specific RACT determination for the Thomas Manufacturing Corporation, Inc., a major source of VOC's in the State of Maryland. The submittal consists of a consent order that imposes VOC RACT requirements for this source. This source is located in Baltimore County. Maryland is imposing a source-specific RACT determination under COMAR 26.11.19.02 G. Once this SIP revision is approved by EPA, the Thomas Manufacturing Corporation Inc. will no longer be subject to COMAR 26.11.06.06.
Thomas Manufacturing Corporation Inc. is a light bulb coating facility located in Baltimore County, Maryland. Thomas Manufacturing Corporation Inc. is a major VOC emitting facility. The MDE issued a consent order to impose RACT for this VOC emitting source as follows.
The consent order for this facility requires Thomas Manufacturing Corporation Inc. to operate and maintain the existing Carbon Adsorption/Absorption Unit on the light bulb coating operation to reduce VOC emissions. The source also must operate the control system, at all times, in accordance with the manufacturer's specifications. The source must adjust the operating cycles of adsorption and desorption to maximize VOC recovery, and in no event can the cycles exceed a two (2) hour cycle. The source is required to operate and maintain the existing Carbtrol system to reduce VOC emissions from the material mixing room. The source must operate the control system at all times in accordance with the manufacturer's specifications. The source must use chemical sensing detector tubes to determine when carbon breakthough occurs, which shall be defined as a VOC reading of greater than or equal to 50 parts per million (ppm) on the detector. Upon detection of breakthrough, the carbon canisters shall be removed and replaced with fresh carbon canisters. All used canisters of carbon shall be capped to prevent fugitive emissions until recovery has taken place.
EPA is approving this revision to the Maryland SIP submitted by MDE on February 21, 2001 to establish and require VOC RACT for the Thomas Manufacturing Corporation Inc., located in the Baltimore area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional
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
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
This action approving Maryland's source-specific RACT requirements to control VOC emissions from the Thomas Manufacturing Corporation Inc. in Maryland may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(167)
(i) Incorporation by reference.
(A) Letter dated February 21, 2001 submitted by the Maryland Department of the Environment transmitting the source-specific VOC RACT determination for the Thomas Manufacturing Corporation Inc., in the form of a Consent Order.
(B) Consent Order for the Thomas Manufacturing Corporation Inc., dated February 6, 2001, with an effective date of February 15, 2001.
(ii) Additional Materials—Other materials submitted by the State of Maryland in support of and pertaining to the RACT determination for the source listed in paragraph (c)(167)(i)(B) of this section.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS closes the commercial fishery for king mackerel in the exclusive economic zone (EEZ) in the northern Florida west coast subzone. This closure is necessary to protect the Gulf king mackerel resource.
The closure is effective 12 noon, local time, November 10, 2001, through June 30, 2002.
Mark Godcharles, telephone 727-570-5305, fax 727-570-5583, e-mail Mark.Godcharles@noaa.gov.
The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001) NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the eastern zone into northern and southern subzones, and established their separate quotas. The quota newly implemented for the northern Florida west coast subzone is 168,750 lb (76,544 kg)(50 CFR 622.42 (c)(1)(i)(A)(
Under 50 CFR 622.43 (a)(3), NMFS is required to close any segment of the king mackerel commercial fishery when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the Federal Register. NMFS has determined that the commercial quota of 168,750 lb (76,544 kg) for Gulf group king mackerel in the northern Florida west coast subzone was reached on November 9, 2001. Accordingly, the commercial fishery for king mackerel in the northern Florida west coast subzone is closed at 12 noon, local time, November 10, 2001, through June 30, 2002, the end of the fishing year.
The Florida west coast subzone is that part of the eastern zone south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, FL, boundary). The Florida west coast subzone is further divided into northern and southern subzones. The northern subzone is that part of the Florida west coast subzone that is between 26°19.8' N. lat. (a line directly west from the Lee/Collier County, FL boundary) and 87°31'06′ W. long. (a line directly south from the Alabama/Florida boundary).
Except for a person aboard a charter vessel or headboat, during the closure, no person aboard a vessel for which a commercial permit for king mackerel has been issued may fish for Gulf group king mackerel in the EEZ in the closed zones or subzones. A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zones or subzones under the bag and possession limits set forth in 50 CFR 622.39 (c)(1)(ii) and (c)(2), provided the vessel is operating as a charter vessel or headboat. A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.
During the closure, king mackerel from the closed zones or subzones taken in the EEZ, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to trade in king mackerel from the closed zones or subzones that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor.
This action responds to the best available information recently obtained from the fishery. The closure must be implemented immediately to prevent an overrun of the commercial quota (50 CFR 622.42 (c)(1)) of Gulf group king mackerel, given the capacity of the fishing fleet to harvest the quota quickly. Overruns could potentially lead to further overfishing and unnecessary delays in rebuilding this resource. Therefore, any delay in implementing this action would be impractical and contradictory to the Magnuson-Stevens Act, the FMP, and the public interest. NMFS finds, for good cause, that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553 (d), a delay in the effective date is waived.
This action is taken under 50 CFR 622.43 (a) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Quota transfers; fishery reopening.
NMFS adjusts the October-December subquota for the General category Atlantic bluefin tuna (BFT) fishery by transferring 40 metric tons (mt) from the Longline South subcategory quota, 50 mt from the Angling category (25 mt from the school size class North and 25 mt from the school size class South subcategories), and 3 mt from the Trap category for a revised coastwide General category subquota of approximately 431.9 mt for October-December, including the addition of underharvest from previous time periods. NMFS reopens the coastwide BFT General category until the adjusted October-December subquota has been filled. These actions are being taken to allow for maximum utilization of the U.S. landings quota of BFT while maintaining a fair distribution of fishing opportunities, preventing overharvest of the adjusted subquotas for the affected fishing categories, helping to achieve optimum yield in the General category fishery, and allowing the collection of a broad range of data for stock monitoring purposes, consistent with the objectives of the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP).
The quota transfers are effective November 9, 2001, through December 31, 2001. The General category reopening is effective November 12, 2001, through December 31, 2001.
Brad McHale or Pat Scida, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas
Under the implementing regulations at 50 CFR 635.27 (a)(8), NMFS has the authority to transfer quotas among categories, or, as appropriate, subcategories, of the fishery, after considering the following factors: (1) The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; (2) the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no allocation is made; (3) the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; (4) the estimated amounts by which quotas established for other gear segments of the fishery might be exceeded; (5) the effects of the transfer on BFT rebuilding and overfishing; and (6) the effects of the transfer on accomplishing the objectives of the HMS FMP.
If it is determined, based on the factors listed here and the probability of exceeding the total quota, that vessels fishing under any category or subcategory quota are not likely to take that quota, NMFS may transfer inseason any portion of the remaining quota of that fishing category to any other fishing category or to the Reserve quota.
Annual BFT quota specifications issued under § 635.27 provide for a quota of 666.7 mt of large medium and giant BFT to be harvested from the regulatory area by vessels fishing under the General category quota during the 2001 fishing year. The General category BFT quota is further subdivided into time period subquotas to provide for broad temporal and geographic distribution of scientific data collection and fishing opportunities. The October-December subquota was initially set at 65.7 mt for the 2001 fishing year, and is currently 338.9 mt, after the addition of approximately 113.2 mt of unharvested subquota from previous periods and a previous quota transfer of 160 mt (66 FR 53346, October 22, 2001). As of October 26, 2001, General category landings against this adjusted October-December subquota have totaled approximately 402.1 mt, exceeding the available coastwide quota by 64.5 mt. An additional 10 mt has been set aside for the traditional fall New York Bight fishery.
After considering the factors for making transfers between categories, NMFS has determined that 40 mt of the remaining adjusted Longline South subcategory quota of approximately 116.6 mt should be transferred to the General category quota. While substantial quota remains in the Longline category, NMFS is in the process of developing proposed regulations to adjust the target catch requirements for pelagic longline vessels retaining bluefin tuna, and is therefore not transferring additional quota from the Longline category. NMFS has also determined that 50 mt of the remaining Angling school subcategory quota of approximately 118.7 mt (25 mt of the remaining Angling school north subcategory quota of approximately 74.7 mt, and 25 mt of the remaining Angling school south subcategory quota of approximately 59 mt) should be transferred to the General category. Finally, NMFS has determined to transfer 3 mt of the remaining Trap category quota of 3.9 mt into the General category quota. The adjusted subquota for the coastwide General category fishery for the October-December period is 431.9 mt. Landings of Trap category BFT have been nonexistent in recent years and this transfer should not adversely impact this category.
Once the adjusted General category subquota for the October-December period has been attained, the coastwide fishery will be close. Announcement of the closure will be filed with the Office of the Federal Register, stating the effective date of closure, and further communicated through the Highly Migratory Species Fax Network, the Atlantic Tunas Information Line, NOAA weather radio, and Coast Guard Notice to Mariners. Although notification of closure will be provided as far in advance as possible, fishermen are encouraged to call the Atlantic Tunas Information Line at (888) USA-TUNA or (978) 281-9305, to check the status of the fishery before leaving for a fishing trip.
This action is taken under 50 CFR 635.23 and 635.27, is consistent with the management measures contained in the HMS FMP, and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Commercial quota transfer.
NMFS announces that the Commonwealth of Virginia has transferred a total of 100,000 lb (45,372 kg) of commercial bluefish quota to the State of New York for 2001. NMFS has adjusted the quotas and announces the revised commercial quotas for Virginia and New York. This action is permitted under the regulations implementing the Fishery Management Plan for the Bluefish Fishery (FMP) and is intended to reduce discards and prevent negative economic impacts to the New York commercial bluefish fishery.
Effective November 15, 2001 through December 31, 2001.
Myles Raizin, Fishery Policy Analyst, (978) 281-9104, fax (978)281-9135, e-mail
Regulations governing the Atlantic bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.160.
The initial total commercial quota for bluefish for the 2001 calendar year was set equal to 9,583,010 lb (4,348,008 kg) (66 FR 23625, May 9, 2001). The resulting quota for New York was 995,204 lb (451,544 kg), and for Virginia was 1,138,412 lb (516,521 kg). Effective August 2, 2001, (66 FR 41151) Virginia transferred 300,000 lb (136,116 kg) of its
The FMP allows two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), to transfer or combine part or all of their annual commercial quota. The Regional Administrator must consider the criteria set forth in § 648.160(f)(1) in the evaluation of requests for quota transfers or combinations.
Virginia has agreed to transfer 100,000 lb (45,360 kg) of its 2001 commercial quota to New York. The revised quotas for the calendar year 2001 are: Virginia, 738,412 lb (335,033 kg), and New York, 1,095,204 lb (496,784 kg). The Regional Administrator has determined that the criteria set forth in § 648.160(f)(1) have been met. This action does not alter any of the conclusions reached in the environmental assessment for the 2001 specifications for the Atlantic bluefish fishery. This is a routine administrative action that reallocates commercial quota within the scope of previously published environmental analyses.
This action is taken under 50 CFR part 648 and is exempt from review under E.O. 12866.
16 U.S.C. 1801
Internal Revenue Service (IRS), Treasury.
Withdrawal of notice of proposed rulemaking.
This document withdraws a notice of proposed rulemaking relating to certain corporate reorganizations involving disregarded entities. The proposed regulations were published on May 16, 2000, and a public hearing on the regulations was held on August 8, 2000. In addition, written comments were received. After consideration of the comments received, the IRS and Treasury have decided to withdraw the proposed regulations and issue new proposed regulations.
These proposed regulations are withdrawn November 15, 2001.
Reginald Mombrun (202) 622-7750 (not a toll-free call).
On May 16, 2000, the IRS issued proposed regulations relating to certain corporate reorganizations involving disregarded entities (65 FR 31115). After consideration of comments received on the proposed regulations, the IRS and Treasury have decided to issue new proposed regulations on this matter. Accordingly, the proposed regulations published on May 16, 2000, are withdrawn.
The principal author of this withdrawal notice is Reginald Mombrun of the Office of the Associate Chief Counsel (Corporate).
Income taxes, Reporting and recordkeeping requirement.
Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking published in the
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations that define the term statutory merger or consolidation as that term is used in section 368(a)(1)(A). The proposed regulations permit certain transactions involving entities that are disregarded as entities separate from their corporate owners for Federal tax purposes to qualify as a statutory merger or consolidation. These proposed regulations affect corporations engaging in statutory mergers and consolidations, and their shareholders. This document also provides a notice of public hearing on these proposed regulations.
Written or electronic comments and requests to speak (with outlines of oral comments to be discussed) at the public hearing scheduled for March 13, 2002, must be received by February 20, 2002.
Send submissions to CC:ITA:RU (REG-126485-01), room 5226, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 am and 5 pm to: CC:ITA:RU (REG-126485-01), Courier's desk, Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC 20044. Alternatively, taxpayers may submit comments electronically via the Internet by selecting the Tax Reg option on the IRS Home Page, or by submitting comments directly to the IRS Internet site at http://www.irs.gov/tax_regs.reglist.html.
Concerning the proposed regulations, Reginald Mombrun (202) 622-7750 or Marlene P. Oppenheim, (202) 622-7770; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Lanita Van Dyke, (202) 622-7180 (not toll-free numbers).
The Internal Revenue Code of 1986 (the Code) provides general nonrecognition treatment for reorganizations specifically described in section 368(a). Section 368(a)(1)(A) provides that the term reorganization includes “a statutory merger or consolidation.” Section 1.368-2(b)(1) currently provides that a statutory merger or consolidation must be “effected pursuant to the corporation laws of the United States or a State or Territory or the District of Columbia.” A transaction will only qualify as a reorganization under section 368(a)(1)(A), however, if it satisfies certain nonstatutory requirements, including the business purpose requirement of § 1.368-1(b), the continuity of business enterprise requirement of § 1.368-1(d), and the continuity of interest requirement of § 1.368-1(e).
A business entity (as defined in § 301.7701-2(a)) that has only one owner may be disregarded as an entity separate from its owner for Federal tax purposes. Examples of disregarded entities include a domestic single member limited liability company that does not elect to be classified as a corporation for Federal tax purposes, a corporation (as defined in § 301.7701-2(b)) that is a qualified REIT subsidiary
Because qualified REIT subsidiaries and qualified subchapter S subsidiaries are corporations under state law, state merger laws generally permit them to merge with other corporations. In addition, many state merger laws permit a limited liability company to merge with another limited liability company or with a corporation.
On May 16, 2000, the IRS and Treasury issued a notice of proposed rulemaking (REG-106186-98, 65 FR 31115) providing guidance under section 368(a)(1)(A), including guidance regarding whether certain mergers involving disregarded entities may qualify as statutory mergers under section 368(a)(1)(A) (hereinafter referred to as the 2000 proposed regulations). The 2000 proposed regulations provided that neither the merger of a disregarded entity into a corporation nor the merger of a target corporation into a disregarded entity was a statutory merger or consolidation qualifying as a reorganization under section 368(a)(1)(A).
A public hearing on the 2000 proposed regulations was held on August 8, 2000. In addition, written comments were received. While commentators generally agreed that the merger of a disregarded entity into a corporation should not qualify as a statutory merger under section 368(a)(1)(A), commentators asserted that the merger of a target corporation into a disregarded entity with a corporate owner should be able to qualify as a statutory merger under section 368(a)(1)(A). Commentators argued that not permitting the merger of a target corporation into a disregarded entity to qualify as a statutory merger under section 368(a)(1)(A) is inconsistent with the general treatment of the disregarded entity as a division of its owner for Federal tax purposes.
After consideration of the comments received, the IRS and Treasury have decided to withdraw the 2000 proposed regulations and issue new proposed regulations (hereinafter referred to as the 2001 proposed regulations) to provide guidance concerning the definition of the terms
The 2001 proposed regulations introduce a number of terms that are employed in the definition of statutory merger or consolidation. The term disregarded entity is defined as a business entity (as defined in § 301.7701-2(a)) that is disregarded as an entity separate from its owner for Federal tax purposes. The term combining entity is defined as a business entity that is a corporation (as defined in § 301.7701-2(b)) that is not a disregarded entity. The term combining unit is defined as a combining entity and all disregarded entities, if any, the assets of which are treated as owned by such combining entity for Federal tax purposes.
The 2001 proposed regulations provide that, for purposes of section 368(a)(1)(A), a statutory merger or consolidation must be effected pursuant to the laws of the United States or a State or the District of Columbia. Pursuant to such laws, the following events must occur simultaneously at the effective time of the transaction: (1) all of the assets (other than those distributed in the transaction) and liabilities (except to the extent satisfied or discharged in the transaction) of each member of one or more combining units (each a transferor unit) become the assets and liabilities of one or more members of one other combining unit (the transferee unit); and (2) the combining entity of each transferor unit ceases its separate legal existence for all purposes.
The IRS and Treasury believe that these definitions of statutory merger and consolidation are consistent with the principles of current law.
In addition, the 2001 proposed regulations, like the 2000 proposed regulations, remove the word corporation from the requirement that, in order to qualify as a reorganization under section 368(a)(1)(A), a merger or consolidation must be “effected pursuant to the corporation laws.” This change conforms the regulations to the IRS's long-standing position that a transaction may qualify as a reorganization under section 368(a)(1)(A) even if it is undertaken pursuant to laws other than the corporation law of the relevant jurisdiction.
Finally, the 2001 proposed regulations remove the word “Territory” from the types of jurisdictions pursuant to the laws of which a transaction that qualifies as a reorganization under section 368(a)(1)(A) may be effected to be consistent with the definition of domestic under section 7701(a)(4), which was amended by section 1906(c) of Tax Reform Act of 1976 (Public Law 94-455; 90 Stat. 1525).
In this guidance project, the IRS and Treasury are not addressing the treatment under section 368(a)(1)(A) of transactions that involve one or more foreign corporations. As discussed below, the IRS and Treasury are considering issuing guidance regarding such transactions as part of a separate regulations project.
The 2001 proposed regulations' definition of a statutory merger or consolidation, unlike the approach of the 2000 proposed regulations, permits certain statutory mergers and consolidations involving disregarded entities to qualify as statutory mergers and consolidations under section 368(a)(1)(A). However, the 2001 proposed regulations provide that such a transaction in which any of the assets and liabilities of a combining entity of a transferor unit become assets and liabilities of one or more disregarded entities of the transferee unit is not a statutory merger or consolidation within the meaning of section 368(a)(1)(A) unless such combining entity, the combining entity of the transferee unit, such disregarded entities, and each business entity through which the combining entity of the transferee unit holds its interests in such disregarded entities is organized under the laws of the United States or a State or the District of Columbia.
Permitting certain transactions involving disregarded entities that have a single corporate owner to qualify as statutory mergers and consolidations for purposes of section 368(a)(1)(A) is appropriate because it is consistent with the general treatment of a disregarded
Treasury and the IRS are considering further revisions to the regulations under section 368(a)(1)(A) to address statutory mergers and consolidations that involve one or more foreign corporations, including transactions involving a disregarded entity. Comments are requested regarding the appropriate scope for any such revision. Comments also are specifically requested concerning what related changes would be necessary to the regulations under sections 358 (concerning the determination of stock basis in certain triangular reorganizations), 367, and 897, as well as other international provisions of the Code. Because a revision of the regulations may include revisions related to transactions under foreign merger or consolidation laws, comments are requested on what changes, if any, may be appropriate to the definition of a statutory merger or consolidation to facilitate the application of the definition in the context of the laws of a foreign jurisdiction. Finally, comments are requested regarding what additional reporting requirements may be appropriate to facilitate administration of the rules regarding statutory mergers or consolidations involving foreign entities.
These regulations are proposed to apply to transactions occurring on or after the date these regulations are published as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f), this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight copies) that are submitted timely to the IRS. Alternatively, taxpayers may submit comments electronically via the Internet by selecting the Tax Regs option on the IRS Home Page, or by submitting comments directly to the IRS Internet site at http://www.irs.gov/tax_regs/reglist.html. The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.
A public hearing has been scheduled for March 13, 2002 beginning at 10 am in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. Due to building security procedures, visitors must enter at the 10th Street entrance, located between Constitution and Pennsylvania Avenues, NW. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit written comments and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by February 20, 2002. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for reviewing outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal authors of these proposed regulations are Reginald Mombrun and Marlene P. Oppenheim of the office of the Associate Chief Counsel (Corporate), IRS. However, other personnel from the Treasury and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is prepared to be amended as follows:
26 U.S.C. 7805 * * *
(b)(1)(i)
(A)
(B)
(C)
(ii)
(A) All of the assets (other than those distributed in the transaction) and liabilities (except to the extent satisfied or discharged in the transaction) of each member of one or more combining units (each a transferor unit) become the assets and liabilities of one or more members of one other combining unit (the transferee unit); and
(B) The combining entity of each transferor unit ceases its separate legal existence for all purposes.
(iii)
(iv)
(ii) The transaction does not satisfy the requirements of paragraph (b)(1)(ii)(A) of this section because all of the assets and liabilities of Z, the combining entity of the transferor unit, do not become the assets and liabilities of Y, the combining entity and sole member of the transferee unit. In addition, the transaction does not satisfy the requirements of paragraph (b)(1)(ii)(B) of this section because the separate legal existence of Z does not cease. Accordingly, the transaction does not qualify as a statutory merger or consolidation under section 368(a)(1)(A).
(ii) The transaction meets the requirements of paragraph (b)(1)(ii) of this section because the transaction is effected pursuant to State W law and the following events occur simultaneously at the effective time of the transaction all of the assets and liabilities of Z, the combining entity and sole member of the transferor unit, become the assets and liabilities of one or more members of the transferee unit that is comprised of Y, the combining entity of the transferee unit, and X, a disregarded entity the assets of which Y is treated as owning for Federal tax purposes, and Z ceases its separate legal existence for all purposes. Paragraph (b)(1)(iii) of this section does not apply to prevent the transaction from qualifying as a statutory merger or consolidation for purposes of section 368(a)(1)(A) because each of Z, Y and X is a domestic entity. Accordingly, the transaction qualifies as a statutory merger or consolidation for purposes of section 368(a)(1)(A).
(ii) The transaction is not prevented from qualifying as a statutory merger or consolidation under section 368(a)(1)(A), provided the requirements of section 368(a)(2)(D) are satisfied. Because the assets of X are treated for Federal tax purposes as the assets of Y, Y will be treated as acquiring substantially all of the properties of Z in the merger for purposes of determining whether the merger satisfies the requirements of section 368(a)(2)(D). As a result, the Z shareholders that receive stock of V will be treated as receiving stock of a corporation that is in control of Y, the combining entity of the transferee unit that is the acquiring corporation for purposes of section 368(a)(2)(D). Accordingly, the merger will satisfy the requirements of section 368(a)(2)(D) such that the Z shareholders' receipt of stock of V in the merger will not cause the transaction to fail to qualify as a reorganization under section 368(a)(1)(A).
(ii) The transaction does not meet the requirements of paragraph (b)(1)(ii)(A) of this section. All of the assets and liabilities of Z, the combining entity and sole member of the transferor unit, do not become the assets and liabilities of one or more members of a transferee unit because neither X nor Y qualifies as a combining entity. Accordingly, the transaction cannot qualify as a statutory merger or consolidation for purposes of section 368(a)(1)(A).
(ii) The transaction does not satisfy the requirements of paragraph (b)(1)(ii)(A) of this section because all of the assets and liabilities of a transferor unit do not become the assets and liabilities of one or more members of the transferee unit. The transaction also does not satisfy the requirements of paragraph (b)(1)(ii)(B) of this section because X does not qualify as a combining entity. Accordingly, the transaction cannot qualify as a statutory merger or consolidation for purposes of section 368(a)(1)(A).
(ii) The transaction does not meet the requirements of paragraph (b)(1)(ii)(A) of this section because immediately after the merger X is not disregarded as an entity separate from Y and, consequently, all of the assets and liabilities of Z, the combining entity of the transferor unit, do not become the assets and liabilities of one or more members of a transferee unit. Accordingly, the transaction cannot qualify as a statutory merger or consolidation for purposes of section 368(a)(1)(A).
(v)
Bureau of Alcohol, Tobacco and Firearms (ATF), Department of the Treasury.
Notice of proposed rulemaking.
We are proposing to amend the regulations to implement the provision of Public Law 104-208, the Omnibus Consolidated Appropriations Act of 1997, relating to a national repository for information on explosives incidents and arson. The proposed regulations implement the law by requiring all Federal agencies having information concerning incidents involving arson and the suspected criminal misuse of explosives to report such information to ATF.
Comments must be received on or before February 13, 2002.
Send written comments to: Chief, Regulations Division; Bureau of Alcohol, Tobacco and Firearms; P.O. Box 50221; Washington, DC 20091-0221;
E-mail comments may be submitted to: nprm@atfhq.atf.treas.gov. E-mail comments must contain your name, mailing address, and e-mail address. They must also reference this notice number and be legible when printed on not more than three pages 8
James P. Ficaretta, Regulations Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue, NW., Washington, DC 20226 (202-927-8210).
On September 30, 1996, Public Law 104-208 (110 Stat. 3009), the Omnibus Consolidated Appropriations Act of 1997 (hereafter, “the Act”), was enacted. The Act amended the Federal explosives laws in Title 18, United States Code (U.S.C.), Chapter 40. As amended, section 846(b) authorizes the Secretary of the Treasury to establish a national repository of information on incidents involving arson and the suspected criminal misuse of explosives. This section also requires all Federal agencies having information concerning such incidents to report the information to the Secretary. This includes information regarding arson and explosives incidents investigated by a Federal agency, as well as information on such incidents reported to a Federal agency by other sources (e.g., a State or local agency) and criminal dispositions, if any. In addition, the law provides that such repository will contain information on incidents voluntarily reported to the Secretary by State and local authorities.
The Secretary tasked ATF with establishing and maintaining the national repository of information concerning arson and explosives incidents. The information that we collect will be available for statistical analysis and research, investigative leads, and intelligence. We recognize that partnerships with other agencies are vital to the success of the national repository. The principal Federal partners in the data collection effort are ATF, the Federal Bureau of Investigation (FBI), and the United States Fire Administration (USFA).
The national repository of information will be available in a database designed and implemented with input from Federal, State, and local fire service and law enforcement authorities. The database will include some 80,000 incidents, dating back over 25 years, from ATF's Explosives Incidents System (EXIS), now known as the Arson and Explosives Incidents System (AEXIS). The database also will incorporate information from a variety of law enforcement and fire service sources. Finally, a public Internet site will provide aggregate statistical summaries of data collected from Federal and State agencies.
Currently, the ATF National Repository Branch is working on integrating data from all contributing sources to establish the most accurate and complete arson and explosives informational data. It will provide statistical information to the public and it will establish a secure web site that will provide selected investigative information to authorized user groups. The national repository's secure site will be a law enforcement and fire service intelligence database designed to aid investigators in identifying trends and similarities between arson and explosives incidents. The repository will help authorized investigators identify suspects, case-specific similarities regarding explosive and incendiary device construction, methods of initiation, types of fuels/explosives used, and methods of operation. The system will also be capable of linking thefts of explosive materials with the later criminal misuse of the explosives. Through partnership with other Federal, State, and local law enforcement and fire service agencies, the system will also help identify persons who commit crimes of violence using arson and explosives, and assist in tracking dispositions of arson and explosive criminal cases. The system will link investigators who may be investigating similar incidents and will rely on communication between investigators to disseminate case-specific information on a case-by-case basis. We have also established a toll free telephone number (1-800-461-8841) to provide a method for direct exchange of information between authorized users and our National Repository Intelligence Research Specialists who have detailed knowledge of the system's capabilities.
To facilitate the development of the national repository, we have established the Arson and Explosives National Repository Branch (AENRB) within the Arson and Explosives Programs Division at our headquarters in Washington, DC. The Branch is available to assist other Federal, State, and local law enforcement and fire service investigators with arson and explosives investigations. The Branch is staffed with ATF special agents, intelligence research specialists, and support personnel who are all experienced in arson and explosives related investigations.
The proposed regulations require all agencies having information concerning incidents involving arson and the suspected criminal misuse of explosives, from whatever source received, to report such information to ATF. The term “agency” is defined in
Under the proposed regulations, agencies will report certain minimal information to ATF, in the format mutually agreed upon by the agency and ATF. In order to arrange a method to submit the data, agencies should contact the AENRB at the toll free number mentioned above. The minimal information reported to ATF includes:
1. General information about the arson or explosive incident (e.g., incident/case number, agency name, date);
2. Basic information about the arson or explosive incident (e.g., location of the incident, date and time of the incident, type of incident);
3. A complete list of all stolen explosives;
4. A complete list of all recovered explosives;
5. Estimated property value and loss;
6. Casualties (e.g., fire service, law enforcement, civilian);
7. Any narrative summary regarding an arson or explosive incident and information on all device components. The term “device component(s)” is defined in the proposed regulations as items or materials used to assemble or to construct any type of an improvised explosive or incendiary device, such as containers, explosives, fuels, propellants, and materials used to cause the device to function or to cause the fire to occur;
8. Suspect(s) or arrested or convicted person(s) full name and identifiers (e.g., date of birth, race, nationality, sex, social security number, law enforcement identifying number); and
9. Disposition of the case (i.e., court and date of conviction, statutory provisions violated, and the length of sentence imposed, if any), if available.
10. Information, if any, to assist in evaluating similarities with other arson and explosives incidents, such as features specific to the incident that are unique, highly distinctive, or sufficiently idiosyncratic to merit inclusion.
The proposed rule requires that agencies will report arson and explosives incidents to ATF at least quarterly (i.e., January-March; April-June; July-September; October-December), no later than 15 days after the quarter ends, but may report any incident as soon as it happens.
State and local authorities having information on incidents involving arson and the suspected criminal misuse of explosives may report the information voluntarily to ATF and should contact the AENRB at the toll free number mentioned above in order to arrange a method to submit the data.
We have determined that this proposed regulation is not a significant regulatory action as defined by Executive Order 12866. Therefore, a Regulatory Assessment is not required.
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. We hereby certify that this proposed regulation, if adopted, will not have a significant economic impact on a substantial number of small entities because it only requires Federal agencies to report information on arson and explosives incidents to the Secretary. State and local authorities voluntarily may report such information to ATF. Accordingly, a regulatory flexibility analysis is not required.
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of information should be sent to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Office of Information and Regulatory Affairs, Washington, DC, 20503, with copies to the Chief, Document Services Branch, Room 3110, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue, NW, Washington, DC 20226. Comments are specifically requested concerning:
Whether the proposed collections of information are necessary for the proper performance of the function of the Bureau of Alcohol, Tobacco and Firearms, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collections of information (see below);
How the quality, utility, and clarity of the information to be collected may be enhanced; and
How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology.
The collections of information in this proposed regulation are in 27 CFR 55.233, 55.234, 55.235, and 55.236. This information is required to implement the provisions of Public Law 104-208, the Omnibus Consolidated Appropriations Act of 1997, relating to a national repository for arson and explosives information. The likely respondents are State or local governments.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
We are requesting comments on the proposed regulations from all interested persons. We are also specifically requesting comments on the clarity of
Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.
ATF will not recognize any material in comments as confidential. Comments may be disclosed to the public. Any material that the commenter considers to be confidential or inappropriate for disclosure to the public should not be included in the comment. The name of the person submitting a comment is not exempt from disclosure.
You may submit written comments by facsimile transmission to (202) 927-8602. Facsimile comments must:
• Be legible;
• Reference this notice number;
• Be 8
• Contain a legible written signature; and
• Be not more than three pages long.
We will not acknowledge receipt of facsimile transmissions. We will treat facsimile transmissions as originals.
Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director within the 90-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.
Copies of this notice and the comments received will be available for public inspection during normal business hours at: ATF Public Reading Room, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the
The author of this document is James P. Ficaretta, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.
Administrative practice and procedure, Arson, Authority delegations, Customs duties and inspection, Explosives, Hazardous materials, Imports, Penalties, Reporting and recordkeeping requirements, Safety, Security measures, Seizures and forfeitures, Transportation, and Warehouses.
For the reasons discussed in the preamble, ATF proposes to amend 27 CFR Part 55 as follows:
18 U.S.C. 846, 847.
(a)
(b) * * *
(10) The arson and explosives national repository.
Under section 846(b) of the Act, the Secretary of the Treasury is authorized to establish a national repository, or storehouse, of information on incidents involving arson and the suspected criminal misuse of explosives. The Secretary tasked ATF with establishing the repository and maintaining it.
For purposes of this subpart, the terms “agency,” “arson,” “device component(s),” “explosive(s),” “incident,” and “suspected criminal misuse” are defined in this section. Terms not defined below will have the same meaning specified in section 55.11.
(a)
(b)
(c)
(d)
(2) Any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible unit, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion;
(3) Gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electric circuit breakers), detonators, and other detonating agents, smokeless powders, and other explosive or incendiary devices. “Explosive or incendiary device” means—
(i) Dynamite and all other forms of high explosives;
(ii) Any explosive bomb, grenade, missile, or similar device; and
(iii) Any incendiary bomb or grenade, fire bomb, or similar device, including any device which—
(A) Consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound; and
(B) Can be carried or thrown by one individual acting alone; and
(4) Blasting agents, water gels, and all items in the “List of Explosive Materials” provided for in § 55.23.
(e)
(f)
Any agency (as defined in § 55.232) having information on incidents involving arson and the suspected criminal misuse of explosives, from whatever source, must report the information to ATF in the format arranged with ATF. State and local authorities having information concerning such incidents voluntarily may report the information to ATF by telephoning 1-800-461-8841 (nationwide toll free number).
(a) General information about the arson/explosives incident, including—
(1) The incident/case number;
(2) The agency name; and
(3) The date;
(b) Basic information about the arson/explosives incident, including—
(1) The location of the incident;
(2) The date and time of the incident; and
(3) The type of incident (e.g., fire, explosion, bombing);
(c) A complete list of all stolen explosives;
(d) A complete list of all recovered explosives;
(e) Estimated property value and loss;
(f) Casualties (e.g., fire service, law enforcement, civilian);
(g) Any narrative summary regarding the arson/explosives incident and information on all device components;
(h) Suspect(s) or arrested or convicted person(s) full name and identifiers (e.g., date of birth, race, nationality, sex, social security number, law enforcement identifying number);
(i) Disposition of the case (i.e., court and date of conviction, statutory provisions violated, and the length of sentence imposed, if any), if available; and
(j) Information, if any, to assist in evaluating similarities with other arson and explosives incidents, such as features specific to the incident that are unique, highly distinctive, or sufficiently idiosyncratic to merit inclusion.
Arson and Explosives incident information must be reported to ATF in a manner that is authorized by the Director.
An agency must report arson and explosives incident information to ATF on a quarterly basis (i.e., January-March; April-June; July-September; October-December), and no later than 15 days after the quarter ends, but may report any incident as soon as it happens. If an incident is reported prior to the end of the quarter it should not be reported again as part of a quarterly report.
Environmental Protection Agency (EPA).
Proposed action.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the state of Missouri which provides for the attainment and maintenance of the sulfur dioxide (SO
Comments on this proposed action must be received in writing by December 17, 2001.
Comments may be mailed to Wayne Kaiser, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Wayne Kaiser at (913) 551-7603.
See the information provided in the direct final rule which is located in the rules section of the
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State implementation the State implementation plan (SIP) revisions regarding the Missoula City-County Air Pollution Control Program, as submitted by the Governor of Montana with a letter dated April 30, 2001. On November 17, 2000, the Montana Board
In the Final Rules section of this
Comments must be received in writing on or before December 17, 2001.
Written comments may be mailed to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202. Copies of the State documents relevant to this action are available for public inspection at the Montana Department of Environmental Quality, 1520 E. 6th Avenue, Helena, Montana, 59620-0901.
Amy Platt, EPA, Region VIII, (303) 312-6449.
See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations section of this
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the State of Maryland for the purpose of establishing and requiring reasonably available control technology (RACT) for the Thomas Manufacturing Corporation, a major source of volatile organic compounds (VOC) in the State of Maryland. This source is located in the Baltimore ozone nonattainment area. In the final rules section of this
Comments must be received in writing by December 17, 2001.
Written comments should be addressed to David L. Arnold, Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Maryland Department of the Environment, 2500 Broening Highway, Baltimore, Maryland 21224.
Catherine L. Magliocchetti at (215) 814-2174, the EPA Region III address above or by e-mail at
For further information, please see the information provided in the direct final action, Approval and Promulgation of Air Quality Implementation Plans; Maryland; VOC RACT Determinations for the Thomas Manufacturing Corporation in the Baltimore Ozone Nonattainment Area, that is located in the “Rules and Regulations” section of this
Federal Communications Commission.
Proposed rule; extension of comment period.
In this document, the Commission gives notice that it extended the period for reply comment in the proceeding that it initiated to explore proposals to bring flexibility to the delivery of communications by Mobile Satellite Service (“MSS”) providers. The Commission extended the period for reply comment at the request of the Cellular Telecommunications & Internet Association (CTIA) and Motient Services, Inc. (Motient) in order to allow sufficient time to establish the most complete and well-developed record possible on which to base a decision.
Reply Comments were due November 12, 2001.
Breck Blalock, 202-418-8191.
This is a summary of the Order Extending Comment Period in IB Docket No. 01-185, ET Docket No. 95-18, DA 01-2314, adopted October 4, 2001. The complete text of this Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC 20554 and also may be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.
1. The Commission extended the reply comment period deadlines established in the Notice of Proposed Rulemaking in this proceeding (66 FR 47621, August 20, 2001) from November 5, 2001, to November 12, 2001.
2. The requests of CTIA and Motient to extend the deadline for filing reply comments in this proceeding is granted to the extent indicated, pursuant to § 1.46 of the Commission's Rules, 47 CFR 1.46.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Propose rule; public hearings; request for comments.
NMFS proposes to amend regulations governing the Atlantic highly migratory species (HMS) fisheries to implement recommendations adopted at the 2000 meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT). Specifically, NMFS proposes measures that would set a reserve quota for North Atlantic swordfish, maintain the status quo South Atlantic swordfish quota for 2001, and prohibit imports of Atlantic bigeye tuna harvested by certain countries. NMFS also proposes to reinstate regulations inadvertently removed during regulatory consolidation that would prohibit persons and vessels subject to the jurisdiction of the United States from possessing fish taken in violation of ICCAT recommendations or from violating another country's fisheries regulations pertaining to species managed by ICCAT. Finally, NMFS proposes certain corrections to existing trade restrictions to facilitate enforcement of the swordfish dead discard allowance and import of swordfish from designated countries. The intent of these actions is to improve conservation of the Atlantic highly migratory species and to improve management of these fisheries, while allowing harvest and trade consistent with recommendations of ICCAT. NMFS will hold public hearings to receive comments from fishery participants, importers, and other members of the public regarding these proposed regulations.
Written comments on the proposed rule must be received by 5 p.m. on December 31, 2001.
The hearing dates are:
1. November 26, 2001, from 7 to 9 p.m., Fort Lauderdale, FL.
2. November 26, 2001, from 7 to 9 p.m., Fairhaven, MA.
3. December 10, 2001, from 7 to 9 p.m., Barnegat Light, NJ.
The meeting locations are:
1. Fort Lauderdale-Broward County Main Library, Bienes Center, 6
2. Fairhaven-Holiday Inn Express, 110 Middle Street, Fairhaven, MA, 02719
3. Barnegat Light-Barnegat Light First Aid Squad, West Tenth Street, Barnegat Light, NJ, 08006
Comments on the proposed rule should be sent to, and copies of the Draft Environmental Assessment/Regulatory Impact Review (EA/RIR) may be obtained from Chris Rogers, Chief, Highly Migra Proposed rule; public hearings; request for comments. tory Species Division,1315 East-West Highway F/SF1, Silver Spring, MD, 20910. These documents are also available from the Highly Migratory Species Division website at
Jill Stevenson, 301-713-2347 or e-mail at
The U.S. Atlantic HMS fisheries are managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (FMP). Implementing regulations at 50 CFR part 635 are issued under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; codified at 16 U.S.C. 1801
At the 2000 meeting of ICCAT, Japan indicated that it had exceeded its North Atlantic swordfish quota, due to higher than anticipated incidental catch rates of swordfish in its bigeye tuna fishery. The overharvest has forced Japan to require its fishermen to release all swordfish, regardless of whether such swordfish are retrieved dead. By its nature, this incidental catch problem is difficult to address, and Japan will continue to monitor the number of swordfish discarded dead. In the interests of supporting the ICCAT swordfish stock rebuilding program and accounting for all sources of mortality, the United States agreed to assist Japan with a one-time transfer of North Atlantic swordfish quota (400 mt whole weight (ww); 301 mt dressed weight (dw)) in 2001. The quota transfer agreement had the full support of the U.S. ICCAT Commissioners and representatives of the U.S. longline industry.
For the purposes of the transfer agreement, NMFS proposes to amend the HMS regulations to establish a reserve quota for swordfish, in part to provide for the reservation of quota to transfer to Japan, and to amend the procedures by which any additional reserve quota shall be apportioned to other fishing categories. Recently, NMFS published a notice adjusting the 2001 quotas for North Atlantic swordfish by carrying forward the unharvested amount from the 1999 fishing year (66 FR 46401, September 5, 2001). It is anticipated, based on
Consistent with the 2000 ICCAT recommendation, NMFS proposes to maintain the current U.S. South Atlantic swordfish quota at 384 mt ww (289 mt dw) for the 2001 fishing year. NMFS estimates that in the 2000 fishing year, only 11 percent of the U.S. South Atlantic Swordfish quota was harvested (based on preliminary landings data). However, the ICCAT recommendation does not authorize carryover of unharvested South Atlantic swordfish quota.
Prior to the publication of the HMS FMP and consolidation of Atlantic HMS regulations under new part 635 of the Code of Federal Regulations (CFR) (64 FR 29090, May 28,1999), regulations governing the Atlantic tunas fisheries existed under 50 CFR part 285. Regulatory text at 50 CFR 285.3 (b) and (g) prohibited persons and vessels subject to the jurisdiction of the United States from possessing fish taken in violation of regulations implementing ICCAT recommendations or from violating another country's fisheries regulations pertaining to species managed by ICCAT. These prohibitions were necessary to enforce U.S. regulations for all persons and vessels subject to U.S. jurisdiction, regardless of fishing area.
While those specific prohibitions were included in the initial proposed consolidated HMS regulations (61 FR 57361, November 6, 1996), they were inadvertently excluded when the consolidated regulations were re-proposed to implement the new requirements of the HMS FMP (64 FR 3486, January 20, 1999). The regulatory consolidation was not intended to make substantive changes to existing regulations, other than those specifically noted as necessary to achieve consistency or to implement new requirements of the HMS FMP. The exclusion of the prohibitions at 50 CFR 285.3 (b) and (g) from the consolidated regulatory text under 50 CFR part 635 was a drafting error and requires the correction contained in this proposed rule. Therefore, NMFS proposes to amend §§ 735.71 (a)(24), (a)(29), and (a)(36) to add these provisions.
Additionally, at the 2000 ICCAT meeting, the United States was notified that a U.S.-flagged vessel landed Atlantic bluefin tuna caught in the Mediterranean Sea. U.S. fishermen may not harvest east Atlantic bluefin tuna because ICCAT recommendations supporting the rebuilding program for west Atlantic bluefin tuna prohibit transfer of fishing effort from the western Atlantic to the eastern Atlantic and, further, the U.S. is not a participant in the east Atlantic bluefin tuna allocation scheme. The Atlantic HMS regulations specifically note the authorized fishing areas and management units of stocks for which the United States is party to ICCAT allocation schemes. However, there are no specific regulations pertaining to unauthorized fishing areas with respect to those stock management units for which the United States does not have an allocation. Therefore, NMFS proposes to amend § 635.25 to designate those areas where U.S. fishermen may not harvest certain Atlantic HMS. One such unauthorized fishing area is the eastern Atlantic Ocean (generally, east of 45° W. long. above 10° N. lat. and west of 25° W. long. below the equator), which is closed to U.S. vessels for the harvest of bluefin tuna.
Operators of U.S. commercial fishing vessels wishing to fish for species regulated under the authority of ATCA in unauthorized areas may operate under contract with another nation, provided such activities are consistent with applicable U.S. and foreign nation laws and regulations, ICCAT recommendations and international agreements. In such cases, however, these vessel owners must have an exempted fishing permit issued by NMFS to ensure they are not fishing in violation of U.S. regulations. Additionally, U.S. citizens may fish recreationally for such species in such areas from a vessel under foreign jurisdiction, provided the vessel is authorized by its flag nation to undertake such fishing activity and is operating consistent with ICCAT recommendations.
At its 2000 meeting, ICCAT identified Contracting Parties and non-Contracting parties/entities whose large-scale longline vessels have been fishing for bigeye tuna in a manner that diminishes the effectiveness of ICCAT measures. Belize, Cambodia, Equatorial Guinea, Honduras, and St. Vincent and the Grenadines were identified as such entities; vessels registered to these countries are fishing in the Atlantic Ocean and have bigeye tuna as their primary target, yet catches are largely unreported and unregulated. Following the procedures established in the bluefin tuna and swordfish action plans to ensure the effectiveness of those conservation programs, the above mentioned Parties/entities were notified and given the opportunity to rectify the situation. Having received no satisfactory responses, ICCAT recommended trade restrictive measures for bigeye tuna.
Therefore, NMFS proposes to ban the import of Atlantic bigeye tuna harvested by vessels flagged by Belize, Cambodia, Equatorial Guinea, Honduras, and St. Vincent and the Grenadines. Consistent with the ICCAT recommendation, NMFS would not make the restriction on Honduras effective until ICCAT has determined at its 2001 meeting that Honduran vessels are fishing for Atlantic bigeye tuna in a manner that diminishes the effectiveness of ICCAT’s conservation and management measures. If such a determination is made, NMFS would make effective as soon as possible the trade restrictions as they would apply to Honduras.
In order to monitor trade of bigeye tuna and enforce the proposed import restrictions, NMFS considered requiring that all bigeye tuna shipments, regardless of their origin, be accompanied by a Certificate of Eligibility (COE) as a condition of entry into the United States. This document would contain information about the ocean of origin and the flag of the harvesting vessel: data that are not available from existing sources (e.g., Customs entry summary data, shipping invoices). However, ICCAT also recommended at its 2000 meeting that statistical documentation programs be developed for swordfish and bigeye tuna, similar to the existing bluefin tuna statistical document. NMFS has initiated internal discussions on this topic and has hosted a public scoping meeting (June 2001) to solicit comments from U.S. industry members and a Technical Workshop (July 2001) for ICCAT counterparts. At the 2001 meeting, NMFS will continue to work with other ICCAT members to adopt a recommendation for swordfish and bigeye statistical documentation programs.
Given the expectation of a more comprehensive ICCAT trade monitoring program in the near future, NMFS concludes that a domestic COE program for bigeye tuna implemented only for the short term and replaced by a more comprehensive program in the future is impractical. Instead, NMFS proposes regulations whereby any bigeye tuna imported into the United States would be assumed to be caught by vessels of the exporting nation. Importers buying bigeye tuna or its products from the restricted countries listed above would need to show that the product was harvested by flag vessels of another country in order to clear U.S. Customs. Further, NMFS proposes to amend the regulations regarding restricted ports of entry, codified at § 635.47, to include bigeye tuna, if such port of entry designations become necessary to avoid circumvention of the bigeye tuna trade restrictions.
ICCAT adopted a number of other recommendations and resolutions at the 2000 meeting that do not presently require rulemaking but will require management action on the part of NMFS. These include recommendations regarding South Atlantic swordfish and North and South Atlantic albacore. ICCAT’s 2000 recommendation on blue and white marlin will be addressed in a separate rulemaking.
ICCAT adopted a status quo target total allowable catch (TAC) for South Atlantic swordfish and contracting parties agreed to establish unilateral catch limits for 2001 consistent with that target TAC. In December, 2000, the United States informed ICCAT of its intention to restrict harvest of South Atlantic swordfish by U.S. vessels to its previously established annual catch limit of 384 mt ww. As this annual quota is currently established by regulation, no further action is required at this time.
Additionally, ICCAT adopted a recommendation for South Atlantic albacore that establishes a 2001 TAC and specifies that countries having caught less than 100 mt ww of southern albacore per year during 1992-96 are subject to an annual catch limit of 100 mt ww. The United States does not have a directed fishery for South Atlantic albacore, but does take albacore as bycatch in its directed swordfish fishery. Because U.S. annual South Atlantic albacore landings were well below the 100-mt ww limit in the specified reference years and are not anticipated to increase significantly, no changes to the regulations are proposed at this time.
ICCAT also adopted a recommendation that sets a 2001 TAC for North Atlantic albacore and establishes the U.S. share as 607 mt ww for the year 2001. Since average recent harvests have not exceeded this level, no regulations to establish a quota are proposed at this time. The 2001 recommendation provides for rollover/deduction of over/underharvest of this annual catch limit for quotas yet to be established for years 2002 and/or 2003. Depending on the requirements of any subsequent ICCAT recommendations for North Atlantic albacore, NMFS may need to undertake rulemaking to establish commercial and recreational harvest quotas and to adjust for any overharvest or underharvest during the 2001 fishing year.
NMFS proposes an amendment to the regulations to correct the dates specified for phasing out the North Atlantic swordfish dead discard allowances. In a Federal Register notice published December 12, 2000 (65 FR 77523), NMFS inadvertently stated that the dead discard allowance of 160 mt ww would apply to the fishing year beginning May 1, 2001. The ICCAT recommendation and the supporting rulemaking documents indicate that the 160 mt ww swordfish dead discard allowance applies to the fishing year that begins June 1, 2002.
NMFS also proposes an amendment to the regulations published December 12, 2000 (65 FR 77523) to implement the 1999 ICCAT recommendation to prohibit swordfish imports from designated countries. NMFS inadvertently omitted the relevant prohibition that should have accompanied that trade restriction rule and proposes to add it to facilitate enforcement. NMFS also proposes a change to those swordfish trade restrictions to conform to the 1999 ICCAT recommendation. The recommendation indicated that trade restrictions should apply only to Atlantic swordfish (not Indian Ocean or Pacific Ocean swordfish), and such a distinction was stated in the preamble to the final rule. However, the regulatory text prohibits the import of swordfish of any stock harvested by vessels of Belize and Honduras. The swordfish COE program collects information regarding the ocean area of origin of imported swordfish. NMFS does not anticipate an enforcement problem associated with restricting trade only of Atlantic swordfish. Therefore, NMFS proposes to change the import prohibition to apply only to Atlantic swordfish harvested by vessels of Belize and Honduras.
NMFS will hold public hearings (see
This proposed rule is published under the authority of the Magnuson-Stevens Act and ATCA. The Assistant Administrator for Fisheries, NOAA, has preliminarily determined that the regulations contained in this rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic highly migratory species fisheries.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel of Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:
Although the reserve quota would be established with the initial intent of implementing a transfer to Japan, the reserve of 301 mt dw of North Atlantic swordfish would be obtained from unharvested quota from prior fishing years. Because the North Atlantic swordfish fishery has not been closed in recent years and a significant amount of the available quota has been carried over for several years, the reservation and subsequent transfer of quota for Japan is not expected to result in a closure of the domestic fishery or diminish fishing opportunities for U.S. vessels. Likewise, the other alternatives considered in the proposed rule would not have economic impacts: the south Atlantic swordfish quota is unchanged; there are no significant imports of Atlantic bigeye tuna from the designated countries; and the other amendments serve only to clarify and facilitate enforcement of existing regulations. These changes would not have an impact on a substantial number of small entities. For example, correcting the date that applies to the swordfish dead discard allowance clarifies and reflects the intent of the relevant ICCAT recommendation. This change would not have an economic impact since it neither changes the fishing year nor the intent of the dead discard allowance that ICCAT recommended. The amendment which relates to the scope of swordfish
Because of this certification, an initial regulatory flexibility analysis was not prepared.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act. A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction. NMFS is currently implementing the reasonable and prudent alternative required by the BiOp. None of the actions in this proposed rule would have any additional impact on sea turtles as these actions are not likely to increase or decrease pelagic longline effort, nor are they expected to shift effort into other fishing areas. No irreversible or irretrievable commitments of resources are expected from this proposed action that would have the effect of foreclosing the implementation of the requirements of the BiOp.
Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.
1. The authority citation for part 635 continues to read as follows:
16 U.S.C. 971
(a)
(b)
(c)
(c)
(i)
(B) A swordfish from the North Atlantic swordfish stock landed by a vessel for which an incidental catch permit for swordfish has been issued, landed by fishermen without swordfish permits consequent to recreational fishing, or caught after the effective date of a closure of the directed fishery from a vessel for which a directed fishery permit or a handgear permit for swordfish has been issued is counted against the incidental catch quota. The annual incidental catch quota for the North Atlantic swordfish stock is 300 mt dw.
(C) The dead discard allowance for the North Atlantic swordfish stock is: 320 mt ww for the fishing year beginning June 1, 2000; 240 mt ww for the fishing year beginning June 1, 2001; and 160 mt ww for the fishing year beginning June 1, 2002. All swordfish discarded dead from U.S. fishing vessels, regardless of whether such vessels are permitted under this part, shall be counted against the allowance.
(D) A portion of the total allowable catch of North Atlantic swordfish may be held in reserve for inseason adjustments to fishing categories, to compensate for projected or actual overharvest in any category, for fishery independent research, or for other purposes consistent with management objectives.
(ii)
(2)
(ii) If NMFS determines that the annual incidental catch quota will not be taken before the end of the fishing year, the excess quota may be allocated
(iii) If NMFS determines that it is necessary to close the directed swordfish fishery prior to the scheduled end of a semi-annual fishing season, any estimated overharvest or underharvest of the directed fishery quota for that semi-annual season will be used to adjust the annual incidental catch quota or the reserve as necessary to maintain landings and discards within the required annual limits.
(iv) NMFS will file with the Office of the Federal Register for publication notification of any inseason swordfish quota adjustment and its apportionment to fishing categories or to the reserve made under this paragraph (c)(2) of this section.
(3)
(ii) If consistent with applicable ICCAT recommendations, total landings above or below the specific North Atlantic or South Atlantic swordfish annual quota shall be subtracted from, or added to, the following year's quota for that area. As necessary to meet management objectives, such carryover adjustments may be apportioned to fishing categories and/or to the reserve. Any adjustments to the 12-month directed fishery quota will be apportioned equally between the two semiannual fishing seasons. NMFS will file with the Office of the Federal Register for publication notification of any adjustment or apportionment made under this paragraph (c)(3)(ii).
(iii) The dressed weight equivalent of the amount by which dead discards exceed the allowance specified at paragraph (c)(1)(i)(C) of this section shall be subtracted from the landings quota in the following fishing year or from the reserve category. NMFS will file with the Office of the Federal Register for publication notification of any adjustment made under this paragraph (c)(3)(iii).
(a) All shipments of Atlantic swordfish, or its products in any form, harvested by a vessel under the jurisdiction of Belize or Honduras will be denied entry into the United States.
(b) All shipments of Atlantic bluefin tuna, or its products, in any form, harvested by a vessel under the jurisdiction of Belize, Honduras, or Equatorial Guinea will be denied entry into the United States.
(c) All shipments of Atlantic bigeye tuna, or its products, in any form, harvested by a vessel under the jurisdiction of Belize, Cambodia, Equatorial Guinea, Honduras or St. Vincent and the Grenadines will be denied entry into the United States. It is a presumption that any shipment containing bigeye tuna or its products offered for entry or imported into the United States has been harvested by a vessel or vessels of the exporting nation.
NMFS shall monitor imported shipments of bluefin tuna, bigeye tuna, and swordfish into the United States. If NMFS determines that the diversity of handling practices at certain ports at which any of these species is being imported into the United States allows for circumvention of the bluefin tuna statistical document, swordfish Certificate of Eligibility requirements, or trade restrictions for these species or for Atlantic bigeye tuna, NMFS may designate, after consultation with the U.S. Customs Service, those ports at which these species may be lawfully imported into the United States. NMFS shall announce the names of such designated ports and the effective dates of entry restrictions through publication of a notice in the
(a) * * *
(24) Import, or attempt to import, any fish or fish products regulated under this part in a manner contrary to any import requirements or import restrictions specified at §§ 635.40, 635.41, 635.45, and 635.46, or at other than an authorized port of entry designated by NMFS under § 635.47.
(29) Land, transship, ship, transport, purchase, sell, offer for sale, import, export, or have in custody, possession, or control:
(i) Any fish that the person knows, or should have known, was taken, retained, possessed, or landed contrary to this part, without regard to the citizenship of the person or registry of the fishing vessel that harvested the fish.
(ii) Any fish of a species regulated pursuant to a recommendation of ICCAT that was harvested, retained, or possessed in a manner contrary to the regulations of another country.
(36) Fish for, or possess on board a fishing vessel, species regulated under this part in unauthorized fishing areas as specified in § 635.25.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension of an information collection associated with forest product removal permits and contracts. This information collection will help the Forest Service administer the small forest products program. Information will be collected from permit applicants for free use of forest products as well as for contractors for competitive and noncompetitive purchase of forest products.
The collected information is necessary to ensure that applicants who request free use of forest products qualify for the free-use program; that applicants who purchase noncompetitive contracts to harvest forest products do not exceed the authorized limit of products that may be removed in a given fiscal year; and that permittees and contractors can be readily identified in the field by Forest Service compliance personnel.
Comments must be received in writing on or before January 14, 2002. Comments received after that date will be considered to the extent practicable.
All comments should be addressed to the Director, Forest and Rangeland Management. Comments may be sent via U.S. Postal Service to the Director at Mail Stop 1105, Forest Service, USDA, PO Box 96090, Washington, DC 20090-6090.
Comments also may be submitted to the Director's attention via facsimile to (202) 205-1045 or by e-mail to fm@fs.fed.us.
The public may inspect comments received at the Forest and Rangeland Management Office, 14th & Independence, SW., 3SW, Washington, DC. Visitors are encouraged to call ahead at (202) 205-0855 to facilitate entry to the building.
Rex Baumback, Forest Management Staff, at (202) 205-0855 or Mary Ann Ball, Forest Service Information Collection Coordinator, at (703) 605-4572. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
Individuals and other Federal agencies planning to remove timber and other forest products, such as mushrooms or boughs, from the National Forests for commercial or personal use purposes must obtain authorization from the Forest Service. To obtain a permit or contract, applicants must meet the criteria at 36 CFR 223.1, 223.2, and 223.5 through 223.13 for free use or purchase of timber or other forest products. The terms of the permit or contract designate the specific forest products that can be harvested or removed and under what conditions, such as limiting the harvest of forest products to a designated area or permitting harvest of only material specifically marked for removal.
When applying for forest products removal permits or contracts, applicants, depending on what timber or forest products they intend to remove, must answer questions on one of the following documents:
Contract 2400-4, Forest Products Sale Contract and Cash Receipt, is used to sell timber products, such as sawtimber, or other forest products, such as fuelwood; and
Permit 2400-8, Forest Products Free Use Permit, is used to allow free use of timber or other forest products (36 CFR 223.5 through 223.13).
Permit 2400-1, Forest Products Removal Permit and Cash Receipt, previously included in this information collection, is being combined with the Department of Interior, Bureau of Land Management; permit BLM-5510-1, Free Use Application and Permit. These information collection requirements will be described in a separate joint notice.
Each format implements different regulations and has different provisions for compliance, but both Contract 2400-4 and Contract 2400-8, collect similar information from the applicant for related purposes. OMB authorization for both information collections expire January 31, 2002. The Forest Service is requesting an extension of this information collection.
The Forest Service will use the information collected to ensure that permittees obtaining free use of timber or other forest products qualify for the free-use program and do not receive product value in excess of the $20 amount that District Rangers or $100 amount that Forest Supervisors are authorized to approve in a fiscal year (36 CFR 223.8); to ensure that applicants purchasing non-competitive contracts to harvest timber or other forest products do not exceed the authorized $10,000 limit in a fiscal year (16 U.S.C. 472(a)); and to ensure that permittees and contractors can be identified in the field by Forest Service compliance personnel.
An applicant is not restricted to one permit or contract. An applicant may apply for as many product removal permits or contracts as they deem necessary to meet their needs. For example, an applicant may obtain free use of a timber product, such as pinecones, using Permit 2400-8, Forest Products Free Use Permit, and still purchase firewood using Contract 2400-4, Forest Products Sale Contract and Cash Receipt.
Data gathered in this information collection are not available from other sources.
The agency uses the collected data to ensure that applicants for free use meet the criteria for free use of timber or forest products authorized by regulations at 36 CFR 223.5 through 223.13, that applicants seeking to purchase and remove timber or forest products from National Forest System lands meet the criteria under which sale of timber or forest products is authorized by the regulations at 36 CFR 223.80, and to ensure that permittees and contractors comply with regulations and terms at 36 CFR 261.6.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for Office of Management and Budget approval.
Broadcasting Board of Governors.
Notice of membership.
This Notice is issued to announce the membership of the Broadcasting Board of Governors (BBG) Performance Review Board.
Ms. Linda C. Beard (Executive Secretary), Office of Personnel, Broadcasting Board of Governors, 330 Independence Avenue SW., Washington, DC 20237, Telephone: (202) 619-1523.
In accordance with sections 4314(c) (1) through (5) of the Civil Service Reform Act of 1978 (Pub. L. 95454), the following is a list of members of the 2001 Performance Review Board for the Broadcasting Board of Governors.
Ms. Janice Brambilla, Senior Advisor, Director General of the Foreign Service and Director of Human Resources, Department of State.
Mr. John Dunkin Jr., Special Coordinator (Designate) Office of the Under Secretary for Economic and Agricultural Affairs Department, Department of State.
Import Administration, International Trade Administration, U.S. Department of Commerce.
Initiation and preliminary results of changed circumstances review.
In a response to a request by petitioners (Bethlehem Steel Corporation, LTV Steel Company, Inc., National Steel Corporation, and United States Steel LLC, collectively “petitioners”) that the Department of Commerce (the Department) revoke the antidumping duty order on certain cold-rolled carbon steel flat products from the Netherlands, the Department is initiating a changed circumstances administrative review and, given that producers accounting for substantially all of the production of the domestic like product have apparently expressed a lack of interest in the order, the Department is issuing this notice of preliminary results and intent to revoke the antidumping duty order, retroactive to August 18, 1993 for unliquidated entries. Interested parties are invited to comment on these preliminary results.
November 15, 2001.
Steve Bezirganian, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1131.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 CFR part 351 (2001).
On August 19, 1993, the Department published in the
Pursuant to section 751(d)(1) of the Act, the Department may revoke an antidumping duty order based on a review under section 751(b) of the Act (
Petitioners are domestic interested parties as defined by section 771(9)(C) of the Act and 19 CFR 351.102(b). Petitioners indicate that they, along with other domestic producers that have expressed a lack of interest in the order retroactive to August 18, 1993, represent at least 85 percent of the domestic production of the domestic like product to which this order pertains, and thus account for “substantially all” of the production of the domestic like product.
Based on the submission by the petitioners, the Department has preliminarily determined that domestic producers expressing a lack of interest in the order account for at least 85 percent of domestic production of the like product and, therefore, that revocation of the order in part, retroactive to August 18, 1993 for unliquidated entries, is warranted. We are hereby notifying the public of our intent to revoke in whole the antidumping duty order on certain cold-rolled carbon steel flat products from the Netherlands retroactive to August 18, 1993.
If final revocation of the order occurs, we intend to instruct the Customs Service to refund any estimated antidumping duties collected for all unliquidated entries of certain cold-rolled carbon steel flat products from the Netherlands entered, or withdrawn from warehouse, for consumption on or after August 18, 1993. We will also instruct the Customs Service to pay interest on any refunds with respect to the subject merchandise entered, or withdrawn from warehouse, for consumption on or after August 18, 1993, in accordance with section 778 of the Act.
Interested parties are invited to comment on these preliminary results. Parties who submit argument in these proceedings are requested to submit with the argument (1) a statement of the issue and (2) a brief summary of the argument. Any interested party may request a hearing within 10 days of the date of publication of this notice. Any hearing, if requested, will be held no later than 21 days after the date of publication of this notice, or, if that day is not a workday, the first workday thereafter. Case briefs may be submitted by interested parties not later than 7 days after the publication of this notice. Rebuttal briefs, limited to the issues raised in the case briefs, may be filed not later than 12 days after the date of publication of this notice. All written comments shall be submitted in accordance with 19 CFR 351.303 and shall be served on all interested parties on the Department's service list in accordance with 19 CFR 351.303. Persons interested in attending the hearing, should one be requested, should contact the Department for the date and time of the hearing.
In accordance with 19 CFR 351.216(e), and barring any legal prohibition, the Department will issue its final results of review within 270 days after the date on which the changed circumstance review was initiated (
This notice is published in accordance with sections 751(b)(1) and (d) and 777(i) of the Act, and with 19 CFR 351.221(c)(3).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce is extending the time limit for the final results of the seventh administrative review of the antidumping duty order on certain helical spring lock washers from the People's Republic of China. The period of review is October 1, 1999 through September 30, 2000.
November 15, 2001.
Sally Hastings or Craig Matney, Office of AD/CVD Enforcement I, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-3464 or (202) 482-1778, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act. Unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR part 351 (2000).
On July 11, 2001, the Department published in the
Section 751(a)(3)(A) of the Act requires the Department to issue the final results within 120 days of the publication of the preliminary results of the review. However, section 751(a)(3)(A) of the Act allows the Department to extend this deadline to a maximum of 180 days.
Because additional time is necessary to analyze data used in the calculation of normal value, the Department has determined that it is not practicable to issue the final results within the original time period. Therefore, in accordance with section 751(a)(3)(A) of the Act, we are postponing the final results of this administrative review for 180 days, until no later than May 7, 2002.
This notice is published pursuant to sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review and revocation in part.
On July 10, 2001, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on polyethylene terephthalate film, sheet, and strip (PET film) from the Republic of Korea (66 FR 35933). The review covers three manufacturers/exporters of the subject merchandise to the United States: H.S. Industries (HSI), Hyosung Corporation (Hyosung) and SKC Limited (SKC). The review covers the period June 1, 1999 through May 31, 2000. We gave interested parties an opportunity to comment on the preliminary results.
The final weighted-average dumping margins for the reviewed firms are listed in the section entitled Final Results of Review. As a result of comments received, we have made changes to the final margin calculations for HSI and SKC.
November 15, 2001.
Michael J. Heaney or Robert James, AD/CVD Enforcement Group III, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4475 or (202) 482-0649, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (2000).
On July 10, 2001, the Department published in the
In its submission of June 30, 2000, HSI requested, pursuant to 19 CFR 351.222(e)(1), partial revocation of the order with respect to its sales of PET film. HSI certified that (1) it sold the subject merchandise in commercial quantities at not less than NV for a period of at least three consecutive years, (2) in the future it will not sell the subject merchandise at less than NV; and (3) it agreed to immediate reinstatement of the order if the Department determines that, subsequent to revocation, it sold the subject merchandise at less than NV.
Based upon the final results in this review and the final results of the two proceeding reviews (
Imports covered by this review are shipments of all gauges of raw, pretreated, or primed polyethylene terephthalate film, sheet, and strip, whether extruded or coextruded. The films excluded from this review are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches (0.254 micrometers) thick. Roller transport cleaning film which has at
PET film is currently classifiable under Harmonized Tariff Schedule (HTS) subheading 3920.62.00.00. The HTS subheading is provided for convenience and for U.S. Customs purposes. The written description remains dispositive as to the scope of the product coverage.
The review covers the period June 1, 1999 through May 31, 2000. The Department has conducted this review in accordance with section 751 of the Act.
All issues raised in the case and rebuttal briefs are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) from Joseph A. Spetrini, Deputy Assistant Secretary for Import Administration to Faryar Shirzad, Assistant Secretary for Import Administration, dated November 7, 2001 which is adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099 of the main Commerce building. In addition a complete version of the Decision Memorandum can be accessed directly on the Web at www.ia.ita.doc.gov. The paper copy and electronic version of the Decision Memorandum are identical in content.
We have revised SKC's calculation of the general expense ratio making allowances for offsets for “miscellaneous income,” “rental income,” “gain on disposal of fixed asset” and the portion of SKC's “gain on foreign currency transaction” and “gain on foreign currency translation” that do not relate to accounts receivable. Additionally, we have recalculated the CEP profit ratio for SKC by adding to the gross price the U.S. interest revenue, duty drawback and billing adjustments realized by SKC. (Further details regarding these changes can be found in the Decision Memorandum and the SKC November 7, 2001 Final Results Analysis Memorandum, both of which are on file in room B-099 of the main Commerce building.) Finally, we have classified HSI's U.S. sales as CEP transactions.
As a result of our analysis of the comments received, we determine that the following margins exist for the period June 1, 1999 through May 31, 2000:
The U.S. Customs Service will assess antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service. We have calculated an importer-specific assessment rate for subject merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of sales examined.
Furthermore, the following deposit requirements shall be required for all shipments of PET film from the Republic of Korea entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of this review, as provided by section 751(a)(1) of the Act: (1) The cash deposit for SKC shall be 1.91 percent; (2) since the rate for Hyosung is zero no cash deposit shall be required for that firm, (3) because we are revoking the order with respect to HSI, no cash deposit will be required for that firm and suspension of liquidation will be lifted for merchandise produced and exported by HSI, (4) for merchandise exported by manufacturers or exporters not covered in this review but covered in the less-than-fair-value (LTFV) investigation or a previous review, the cash deposit will continue to be the most recent rate published in the final determination or final results for which the manufacturer or exporter received a company-specific rate; (5) if the exporter is not a firm covered in this review or the original investigation, but the manufacturer is, the cash deposit rate will be that established for the manufacturer of the merchandise in the final results of the most recent review or the LTFV investigation; and (6) if neither the exporter nor the manufacturer is a firm covered in this or any previous reviews, the cash deposit rate will be 21.50 percent, the “all others” rate established in the LTFV investigation. (
This notice serves as the final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice of administrative review and revocation in part is in accordance with section 751(a)(1) of the Act.
1. Exclusion of Non-Operating Income in Calculation of SKC's General Expense Ratio
2. Accounting for SKC's B-grade Film Costs
3. Whether HSI's sales are CEP or EP transactions
4. Revocation of Order with respect to HSI
5. Calculation of SKC's CEP and CV profit ratios.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limits.
The Department of Commerce (the Department) is extending the time limits for the final results of the 1999-2000 administrative review of the antidumping duty order on stainless steel sheet and strip in coils from Mexico. This review covers one manufacturer/exporter of the subject merchandise to the United States and the period January 4, 1999 through June 30, 2000.
November 15, 2001.
Deborah Scott at (202) 482-2657 or Robert James at (202) 482-0649, Antidumping and Countervailing Duty Enforcement Group III, Office Eight, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230.
On August 8, 2001, we published the preliminary results of this administrative review.
This extension is in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (19 U.S.C. 1675 (a)(3)(A) (2001)).
Import Administration, International Trade Administration, Department of Commerce.
Notice of Court Decision and Suspension of Liquidation.
November 15, 2001.
On October 19, 2001, the Court of International Trade (the Court) affirmed the redetermination made by the Department of Commerce (the Department) pursuant to the Court's remand of the final determination of sales at less than fair value of stainless steel sheet and strip in coils (stainless sheet) from Germany.
Patricia Tran or Robert James at (202) 482-1121, or (202) 482-0649, respectively, Antidumping and Countervailing Duty Enforcement Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On July 27, 1999, the Department published in the
Following publication of the amended final determination, KTN and Krupp Hoesch Steel Products, Inc. (KHSP) filed a lawsuit with the Court challenging certain aspects of the Department's findings in the antidumping investigation of stainless steel sheet and strip in coils from Germany.
On July 31, 2000, the Court remanded eight issues from the
Furthermore, with respect to points (ii) and (iii), the Court ordered the Department to use the U.S. Reseller's data if it found the information was verified or verifiable, “subject to filling any gaps, as noted in the [C]ourt's opinion, with facts available.”
On October 30, 2000 the Department issued its
On July 9, 2001 the Court issued a second order remanding the Department's
On September 7, 2001 the Department issued its Draft Results of Redetermination to the plaintiffs and defendant-intervenors to comment. In the Draft Results of Redetermination, the Department, for purposes of the remand, used neutral facts available to calculate U.S. Reseller's margin rate and any other calculation predicated on U.S. Reseller's cost and sales data, and calculated facts available for the reseller in a way that enabled the facts available rate and the sales prices to which it is applied to be adjusted for movement and selling expenses. Neither party submitted comments on the Department's Draft Results of Redetermination. Pursuant to
On October 19, 2001, the Court affirmed the Department's remand determination.
The U.S. Court of Appeals for the Federal Circuit in
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of 1999-2000 administrative review, partial rescission of the review, and determination not to revoke the order in part.
We have determined that sales of tapered roller bearings and parts thereof, finished and unfinished, from the People's Republic of China, were made below normal value during the period June 1, 1999, through May 31, 2000. Based on our review of comments received and a reexamination of surrogate value data, we have made certain changes in the margin calculations of all of the reviewed companies. Consequently, the final results differ from the preliminary results. The final weighted-average dumping margins for these firms are listed below in the section entitled “Final Results of the Review.” Based on these final results of review, we will instruct the Customs Service to assess antidumping duties based on the difference between the export price and normal value on all appropriate entries.
Weihai Machinery Holding (Group) Co., China National Machinery Import & Export Corporation, Wanxiang Group Corporation, and Zhejiang Machinery Import & Export Corp. have requested revocation of the antidumping duty order in part. Based on record evidence, we find that none of these companies qualify for revocation. Accordingly, we are not revoking the order with respect to the subject merchandise produced and exported by these four companies.
November 15, 2001.
Melani Miller, Jarrod Goldfedder, Anthony Grasso, or Andrew McAllister, Group 1, Office I, Antidumping/Countervailing Duty Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-0116, (202) 482-0189, (202) 482-3853, and (202) 482-1174, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to 19 CFR part 351 (2001).
On July 10, 2001, the Department published the preliminary results of this review of tapered roller bearings and parts thereof, finished and unfinished (“TRBs”) from the People's Republic of China (“PRC”).
We invited parties to comment on the
The Department has conducted this administrative review in accordance with section 751 of the Act.
Merchandise covered by this review is TRBs from the PRC; flange, take up cartridge, and hanger units incorporating tapered roller bearings; and tapered roller housings (except pillow blocks) incorporating tapered rollers, with or without spindles, whether or not for automotive use. This merchandise is currently classifiable under the
As noted in the
Also, with respect to Chin Jun, as stated in the
Finally, as noted in the
The Department “may revoke, in whole or in part” an antidumping duty order upon completion of a review under section 751 of the Act. While Congress has not specified the procedures that the Department must follow in revoking an order, the Department has developed a procedure for revocation that is described in 19 CFR 351.222. This regulation requires,
As noted in the
In accordance with 19 CFR 351.222(e), Weihai, CMC, Wanxiang, and ZMC's requests were accompanied by certifications that they had sold the subject merchandise at not less than normal value during the current period of review and would not sell the subject merchandise at less than normal value in the future. They further certified that they sold the subject merchandise to the United States in commercial quantities for a period of at least three consecutive years. The companies also agreed to the immediate reinstatement of the antidumping duty order if the Department concludes that, subsequent to the revocation, the companies sold the subject merchandise at less than normal value.
In
As for Weihai, as noted in the
Finally, with respect to Wanxiang, in
As noted in the
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (“
Based on our review of comments received and a reexamination of surrogate value data, we have made certain changes to the calculations for the final results. These changes are discussed in the following Comments in the
We revised CMC's calculations to take into account a minor reporting error made by CMC for one of its reported factors that it discovered after the
We valued certain TRBs components that we were not able to value in the
We determine that the following dumping margins exist for the period June 1, 1999, through May 31, 2000:
Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Because certain importer-specific assessment rates calculated in these final results are above de minimis (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(1) of the Act: (1) For the PRC companies named above, the cash deposit rates will be the rates for these firms established in the final results of this review, except that, for exporters with de minimis rates (i.e., less than 0.5 percent) no deposit will be required; (2) for previously-reviewed PRC and non-PRC exporters with separate rates, the cash deposit rate will be the company-specific rate established for the most recent period during which they were reviewed; (3) for all other PRC exporters, the rate will be the PRC country-wide rate, which is 33.18 percent; and (4) for all other non-PRC exporters of subject merchandise from the PRC, the cash deposit rate will be the rate applicable to the PRC supplier of that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 771(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for final results of administrative review.
November 15, 2001.
Doug Campau or Maureen Flannery, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1395 or (202) 482-3020, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to the current regulations, codified at 19 CFR part 351 (2001).
The Department published in the
Due to extensive arguments on cost issues, and the complexities involved in analyzing the level of trade issue in this review, it is not practicable to complete the review within the initial time limits mandated by section 751(a)(3)(A) of the Act. Therefore, we are extending the due date for the final results of this review until January 7, 2002.
Notice of application to amend certificate.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review. This notice summarizes the proposed amendment and requests comments relevant to whether the amended Certificate should be issued.
Vanessa M. Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration by phone at (202) 482-5131 (this is not a toll-free number) or E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. A Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private, treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Act and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five copies, plus two copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice in writing to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104H, Washington, DC 20230, or transmit by E-mail to
The Association for the Administration of Rice Quotas, Inc. (“AARQ”) original Certificate was issued on January 21, 1998 (63 FR 4220, January 28, 1998) and last amended on April 5, 2001, (66 FR 21368, April 30, 2001). A summary of the application for an amendment follows.
1. Add the following companies as new “Members” of the Certificate within the meaning of § 325.2(1) of the regulations (15 CFR 325.2(1)): Rickmers Rice USA, Inc., St. Louis, Missouri (Controlling Entity: Rickmers Reismuhb GMBH, Bremen, Germany;) Commodity Specialists Company, Minneapolis, Minnesota;
2. Delete the following companies as “Members” of the Certificate within the meaning of § 325.2(1) of the regulations (15 CFR 325.2(1)): Affiliated Rice Milling, Inc., Alvin, Texas; Garnac Grain Co., Inc., Overland Park, Kansas;
3. Change the listings of the names of the current Members as follows: “AFE (USA), Inc., Houston, Texas” to “AFE (USA), Inc., Portland, Oregon;” “California Pacific Rice Milling, Ltd., Arbuckle, California” to “CAL PAC Investments, LLC dba California Pacific Rice Milling, Woodland, California; “ “Glencore Ltd., Stamford, Connecticut (a subsidiary of Glencore International AG), for the activities of Glencore Grain Division and Glencore Ltd.”s subsidiary, LaGrain International Inc., Baton Rouge, Louisiana;” should be amended to read “Glencore Ltd., Stamford, Connecticut (a subsidiary of Glencore International AG), for the activities of Glencore Grain Division.”
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent; request for nominations; request for comments.
NMFS solicits nominations for the Highly Migratory Species (HMS) advisory panel (AP) and the Billfish AP. The purpose of the AP’s will be to assist NMFS in the collection and evaluation
Nominations or comments must be submitted on or before December 31, 2001.
Nominations and comments on SOPPs revision recommendations should be submitted in writing to Chris Rogers, Chief, Highly Migratory Species Division, NMFS, 1315 East-West Highway, Silver Spring, MD, 20910. Nominations may be submitted by fax; 301-713-1917. SOPPs revision recommendations will not be accepted by fax.
Othel Freeman or Carol Douglas (301) 713-2347.
In accordance with the Magnuson-Stevens Fishery Conservation and Management Act, (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq., as amended by the Sustainable Fisheries Act, Public Law 104-297, Advisory Panels (AP’s) have been established to consult with NMFS in the collection and evaluation of information relevant to the HMS FMP (April 1999) and the Billfish FMP Amendment (April 1999). Nominations are being sought to fill all posts in both AP’s. In addition, NMFS is considering a modification to the Statement of Organization, Practices and Procedures (SOPP) for each AP.
The purpose of the HMS AP is to advise and assist the Secretary of Commerce (Secretary) in the collection and evaluation of information relevant to any amendment to the HMS FMP (April 1999). The HMS AP evaluates future management options for Atlantic tunas, swordfish and sharks under the requirements of the Magnuson-Stevens Act.
The purpose of the Billfish AP is to advise and assist the Secretary in the collection and evaluation of information relevant to any amendment to the Billfish FMP. The Billfish AP evaluates future management options for Atlantic billfish under the requirements of the Magnuson-Stevens Act.
Individuals with definable interests in the recreational and commercial fishing and related industries, environmental community, academia, governmental entities and non-governmental organizations will be considered for membership in the AP.
Nominations are invited from all individuals and constituent groups. The nomination should include:
1. The name of the applicant or nominee and a description of their interest in highly migratory species (HMS) or one species in particular from among sharks, swordfish, tunas and billfish;
2. A statement of background and/or qualifications;
3. The AP to which the applicant seeks appointment;
4. A written commitment that the applicant or nominee shall actively participate in good faith in the tasks of the AP.
Member tenure will be for 3 years, with one third of the members’ terms expiring on the last day of each calendar year. Current terms for existing members expire for one-half of the panel members on December 31, 2001, and one-half on April 6, 2002. Appointments in January 2002, will be for 1, 2, or 3 years, and appointments in April 2002, will be for 9 months, 21 months, and 33 months, apportioned equally among the posts for the then expired terms. All subsequent appointments will be for 3 years (36 months). Posts for terms of varying tenure in 2002 will be randomly selected.
Member tenure will be for 2 years, with one half of the terms expiring on the last day of each calendar year. Current terms for existing posts all expire on December 31, 2001. Appointments in January 2002 will be for 1 or 2 years apportioned equally among the posts for the then expired terms. Posts for terms of 1 or 2 years tenure will be randomly selected.
The HMS AP shall consist of not less than twenty-two (22) members who are knowledgeable about the pelagic fisheries for all Atlantic HMS species. The Billfish AP shall consist of not less than eight (8) members who are knowledgeable about the pelagic fisheries for all billfish species. Nominations for each AP will be accepted to allow representation from recreational and commercial fishing interests, the conservation community, and the scientific community. NMFS does not believe that each potentially affected organization or individual must necessarily have its own representative, but each area of interest must be adequately represented. The intent is to have a group that, as a whole, reflects an appropriate and equitable balance and mix of interests given the responsibilities of each AP. Criteria for membership include one or more of the following: (a) Experience in the recreational fishing industry involved in catching swordfish, tunas, billfish,or sharks; (b) experience in the commercial fishing industry for HMS; (c) experience in fishery-related industries (marinas, bait and tackle shops); (d) experience in the scientific community working with HMS; (e) representation of a private, non-governmental, regional, (non-Federal) state, national, or international organization representing marine fisheries, environmental, governmental or academic interests dealing with HMS.
Five (5) additional members of the AP include one voting representative each of the New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the South Atlantic Fishery Management Council, the Gulf of Mexico Fishery Management Council, and the Caribbean Fishery Management Council. The AP also includes twenty-two (22) ex-officio participants: twenty (20) representatives of the constituent states and two (2) representatives of the constituent interstate commissions; the Atlantic States Marine Fisheries Commission and the Gulf States Marine Fisheries Commission.
NMFS will provide the necessary administrative support, including technical assistance, for the AP. However, NMFS will not compensate participants with monetary support of any kind. Members are expected to pay for travel costs related to the AP.
Meetings of each AP will be held as frequently as necessary but are routinely held once each year in the spring. Often the meetings are held jointly, and may be held in conjunction with other advisory panel meetings or public hearings.
SOPP’s for each AP are under consideration for revision. Member tenure for existing posts on each AP are under consideration to be changed. The HMS AP appointment will change from
16 U.S.C. 971
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs establishing limits.
January 1, 2002.
Roy Unger, 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, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The import restraint limits for textile products, produced or manufactured in Brazil and exported during the period January 1, 2002 through December 31, 2002 are based on limits notified to the Textiles Monitoring Body pursuant to the Uruguay Round Agreement on Textiles and Clothing (ATC).
Pursuant to the provisions of the ATC, the third stage of the integration of textile and apparel products into the General Agreement on Tariffs and Trade 1994 will take place on January 1, 2002 (see 60 FR 21075, published on May 1, 1995). Accordingly, certain previously restrained categories may have been modified or eliminated and certain limits may have been revised. Integrated products will no longer be subject to quota.
In the letter published below, the Chairman of CITA directs the Commissioner of Customs to establish the 2002 limits.
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: Pursuant to section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended; and the Uruguay Round Agreement on Textiles and Clothing (ATC), you are directed to prohibit, effective on January 1, 2002, entry into the United States for consumption and withdrawal from warehouse for consumption of cotton, wool and man-made fiber textile products in the following categories, produced or manufactured in Brazil and exported during the twelve-month period beginning on January 1, 2002 and extending through December 31, 2002, in excess of the following levels of restraint:
The limits set forth above are subject to adjustment pursuant to the provisions of the ATC and administrative arrangements notified to the Textiles Monitoring Body.
Products in the above categories exported during 2001 shall be charged to the applicable category limits for that year (see directive dated October 27, 2000) to the extent of any unfilled balances. In the event the limits established for that period have been exhausted by previous entries, such products shall be charged to the limits set forth in this directive.
Products to be integrated into the General Agreement on Tariffs and Trade 1994 on January 1, 2002 (listed in the Federal Register notice published on May 1, 1995, 60 FR 21075) which are exported during 2001 shall be charged to the applicable 2001 limits to the extent of any unfilled balances. After January 1, 2002, should those 2001 limits be filled, such products shall no longer be charged to any limit.
The conversion factor for merged Categories 338/339/638/639 is 10 (square meters equivalent/category unit).
In carrying out the above directions, the Commissioner of Customs should construe entry into the United States for consumption to include entry for consumption into the Commonwealth of Puerto Rico.
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,
The Commodity Futures Trading Commission has determined to renew for a period of two years its Technology Advisory Committee. The Commission has determined that the renewal of the advisory committee is in the public interest in connection with duties imposed on the Commission by the Commodity Exchange Act, 7 U.S.C. 1,
The purpose of the Technology Advisory Committee is to advise the Commission on the impact and implications of technological innovation in the financial services and commodity markets. Meetings of the Technology Advisory Committees are public. Commissioner Thomas J. Erickson serves as Chairman and Designated Federal Official of the Technology Advisory Committee.
Interested persons may obtain information or make comments by writing to the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”) has submitted a public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paper Reduction Act of 1995, Pub. L. 104-13, (44 U.S.C. chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Robert Bush, at (202) 606-5000, extension 338. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (800) 833-3722 between the hours of 9:00 a.m. and 5:00 p.m. Eastern Standard Time, Monday through Friday.
Comments should be sent to the Office of Information and Regulatory Affairs, Attn: Ms. Brenda Aguilar, OMB Desk Officer for the Corporation for National and Community Service, Office of Management and Budget, Room 10235, Washington, DC, 20503, (202) 395-7316, within 30 days from the date of publication in this
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Corporation is soliciting comments concerning its proposed renewal of its AmeriCorps*VISTA Project Progress Report, OMB Control Number 3045-0043. This form is due to expire on October 31, 2001.
The Corporation proposes to distribute the AmeriCorps*VISTA Project Progress Report form to AmeriCorps*VISTA sponsoring organizations upon project approval. Sponsoring organizations are required to submit a completed form to the Corporation on a quarterly basis. Corporation personnel will use the form to track project accomplishments, problems, resources generated, project sustainability, and support provided to AmeriCorps*VISTA members. Information from the form is also used to fulfill requests for substantive project information. The purpose of the form is to evaluate a sponsor's progress towards meeting project goals and objectives, assess risk, and document qualitative and quantitative information about project accomplishments for a given reporting period.
The Corporation also proposes to revise the AmeriCorps*VISTA Project Progress Report by deleting unused information from the existing version of the form, incorporating plain language, and collecting the following project information:
• Activities that contribute to building permanent infrastructure.
• Outcomes that demonstrate helping people out of poverty.
Further, the Corporation proposes to revise the AmeriCorps*VISTA Project Progress Report by requesting the “e-mail address” of project supervisors to provide a more inexpensive and faster way to communicate and share information, and by asking sponsoring organizations if they have technical assistance needs.
Army Corps of Engineers, DoD.
Notice of availability.
Pursuant to section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969 (as amended), the U.S. Army Corps of Engineers (USACE), Little Rock District, has prepared a Draft Environmental Impact Statement (DEIS) for the proposed implementation of a revised Shoreline Management Plan (SMP) at Greers Ferry Lake, Heber Springs, Arkansas. This DEIS is being made available for a 60-day public comment period.
A public meeting for receiving comments on the DEIS will be held on December 4, 2001, at the Brighton Park Hotel Conference Center in Heber Springs, Arkansas. Written comments on the DEIS should be submitted on or before January 18, 2002.
Questions or comments concerning the DEIS should be addressed to Ms. Tricia Anslow, Project Manager, Planning Branch, PO Box 867, Little Rock, Arkansas 72203-0867, telephone 501-324-5032, E-mail:
The Greers Ferry Lake Project area is in the foothills of the Ozard Mountains in north-central Arkansas. The project area is approximately 65 miles from Little Rock, Arkansas, and 130 miles from Memphis, Tennessee. The lake lies within Cleburne and Van Buren Counties. Large portions of Stone and Searcy Counties and small portions of Pope and Conway counties also fall within the lake's watershed. The area around the lake is principally rural in character. More than 80 percent of the land in the watershed is forested, and 12 percent is agricultural. Greers Ferry Lake was constructed between March 1959 and July 1964. The project area includes 45,548 acres (slightly more than 71 square miles). Within the project area, the government owns flowage easements over 4,634 acres. The lake's waters cover 31,500 acres when measured at the “conservation pool” level of 461 feet above mean sea level. When waters must be held to prevent flooding of areas below the dam, the surface of the lake may rise to 487 feet above mean sea level. When this happens, the lake's surface area increases to 40,500 acres, and adjacent lands subject to the flowage easements become inundated.
The Department of the Army, Corps of Engineers, published a Notice of Intent in the
The Corps policy at Greers Ferry Lake is to protect and manage project shorelines in a manner that promotes safe and healthful use by the public while maintaining environmental safeguards to ensure a quality resource. Consistent with Corps policy and the purpose and need for the proposed action, the Little Rock District and the Greers Ferry Project Office propose to implement a revision of the Greers Ferry Lake SMP following review of pubic comments and appropriate environmental impact analysis. The SMP would adhere to Corps policy and Title 36 of the CFR, cited previously. The DEIS examines four action alternatives for revising the SMP and a no action alternative. These alternatives are described in the following paragraphs.
• Alternative 1 (No Action Alternative). Under the No Action Alternative, the Little Rock District would make no changes to the existing 1994 Greers Ferry Lake SMP. No new management elements would be adopted, and no existing management elements would be modified. Rezoning applications received during the current
It should be noted that if the No. Action Alternative were adopted, no new rezoning requests would be approved during the period that would commence following issuance of the ROD upon completion of this EIS. However, during future reviews of the SMP, rezoning applications could be approved to the extent of the level described in Alternative 5 (Maximum Modification). It is expected that under No Action, some level of growth would occur over a much longer period of time than that described under Alternative 3 (No Growth).
• Alternative 2 (Preferred Alternative, Approval of Rezoning Requests Meeting the 80 Percent Criteria). Under this alternative, no future rezoning requests would be accepted. The 93 rezoning requests that met the 80 percent criteria during the 1999 review of the 1994 SMP would be allowed. A minimum 50-foot buffer would be established; that is, mowing would be prohibited from the vegetated edge of the shoreline for 50 feet. This buffer requirement would affect only Corps property. Authorization for mowing from habitable structures would be increased from 50 to 100 feet, except where is would conflict with the vegetated buffer. The project rules on use of boats with sleeping quarters and/or marine sanitation devices would defer to State and Federal regulations, except that the requirement that such boats be moored at commercial docks would remain in effect. Grandfathered docks would be allowed to be reconstructed to alternative dimensions, or the locations of existing grandfathered docks would be reallocated outside the buffer zones or prohibited areas to limited development.
In designating Alternative 2 as the preferred configuration of key SMP elements for incorporation into and implementation through a revised SMP, the Little Rock District is guided by Corps regulations and policy governing shoreline management plans, the District's objectives for the Greers Ferry Lake SMP, public input to the SMP and EIS development processes, and court-ordered mandates. The District views the Preferred Alternative as the alternative that conforms with existing laws and regulations and best balances public uses of lake shoreline for recreational opportunity, public safety, and environmental protection.
• Alternative 3 (No Growth Alternative). This alternative, which is the most restrictive to lake access and recreational use, would seek to maintain the Corps land around the lake as it currently exists, at least until the next review. Rezoning applications would not be accepted. No new shoreline use permits would be allowed. Expiring permits could be renewed, but only according to the permit's current terms. For example, a two-slip dock permit could be renewed only as a two-slip dock permit. It could not be changed to a permit for a community dock.) No new permits for vegetation modification would be issued, and expiring permits would not be renewed. Restrictions on locations for boats with sleeping quarters and/or marine sanitation devices would remain in effect.
• Alternative 4 (Approval of Rezoning Requests Meeting the 90 Percent Criteria). This alternative would implement the same measures as described under Alternative 2 (Preferred Alternative); however, only rezoning requests that met 90 percent of the rezoning criteria would be approved. A minimum 100-foot buffer would be established; that is, mowing would be prohibited from the vegetated edge of the shoreline for 100 feet.
• Alternative 5 (Maximum Modification). This alternative would allow the maximum rezoning from “protected” to “limited development.” The shoreline would be rezoned to increase the LDA's from 7 to 33 percent. Rezoning would be based on suitable topography (shoreline with a 20 to 49 percent slope). No rezoning requests would be accepted or approved at future SMP reviews. Authorization for mowing would be increased from 50 to 200 feet from habitable structures. Restrictions on use of boats with sleeping quarters and/or marine sanitation devices would be abolished, but the requirement for such boats to be moored at commercial docks would remain in effect. Grandfathered docks would be allowed to be reconstructed to alternative dimensions, or the locations of existing grandfathered docks would be reallocated outside the buffer zones or published areas.
The DEIS will be available for public review at the following locations:
1. Cleburne County Library, 1010 West Searcy, Heber Springs, AR 72543.
2. Greers Ferry Public Library, 8743 Edgemont Road, Greers Ferry, AR 72067.
3. Central Arkansas Main Library, 100 Rock Street, Little Rock, AR 72203.
4. U.S. Army Corps of Engineers, 700 West Capital, ATTN: CESWL-PR-P, Little Rock, AR 72203.
5. Van Buren County Library, ATTN: Ms. Karla Fultz, 110 Page Street, Clinton, AR 72031.
6. Laman Library, 2801 N Orange, North Little Rock, AR 72114.
7. U.S. Army Corps of Engineers, 700 Heber Springs Rd. North, Greers Ferry Project Office, Heber Springs, AR 72543.
Comments received in response to this DEIS, including names and addresses of those who comment, will be considered part of the public record. Comments submitted anonymously will also be accepted and considered. Pursuant to Title 7 of the CFR 1.27(d), any person may request that the Corps withhold a submission from the public record if he or she can demonstrate that the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that, under FOIA, confidentiality may be granted in only very limited circumstances, such as toe protect trade secrets. The Corps will inform the requester of the agency's decision regarding the request for confidentiality. If the request is denied, the Corps will return the submission with notification that the comments may be resubmitted either with or without the commentor's name and address. Affected local, State, or Federal agencies, affected American Indian tribes, and other interested private organizations and parties may participate in the review process by forwarding written comments to the address given previously or by attending the pubic meeting.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before January 14, 2002.
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 Group, 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, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 1,436.
Burden Hours: 2,565.
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 Jacqueline Montague at (202) 708-5359 or via her Internet address
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Rocky Flats. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meeting be announced in the
Thursday, December 6, 2001, 6 p.m. to 9:30 p.m.
Arvada Center for the Art and Humanities, 6901 Wadsworth Boulevard, Arvada, CO.
Ken Korkia, Board/Staff Coordinator, Rocky Flats Citizens Advisory Board, 9035 North Wadsworth Parkway, Suite 2250, Westminster, CO, 80021; telephone (303) 420-7855; fax (303) 420-7579.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of these meeting be announced in the
Monday, December 10, 2001, 6 p.m.-9:30 p.m.
Garden Plaza Hotel, 215 South Illinois Avenue, Oak Ridge, TN 37830.
Pat Halsey, Federal Coordinator, Department of Energy, Oak Ridge Operations Office, P.O. Box 2001, EM-922, Oak Ridge, TN 37831. Phone (865) 576-4025; Fax (865) 576-5333 or e-mail:
Take notice that on September 24, 2001, Arcata Energica S.A. (Arcata) tendered for filing with the Federal Energy Regulatory Commission (Commission), an amendment to its Application for Determination of Exempt Wholesale Generator Status filed with the Commission on September 7, 2001.
Any person desiring to be heard concerning the amended application for exempt wholesale generator status should file a motion to intervene or comments with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). The Commission will limit its consideration of comments to those that concern the adequacy or accuracy of the amended application. All such motions and comments should be filed on or before November 16, 2001, and must be served on the applicant. 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. This filing may also be viewed on the web at
Take notice that on September 24, 2001, Cementos Norte Pacasmayo Energia S.A.(CNPE) tendered for filing with the Federal Energy Regulatory Commission (Commission), an amendment to its Application for Determination of Exempt Wholesale Generator Status filed with the Commission on September 7, 2001.
Any person desiring to be heard concerning the amended application for exempt wholesale generator status should file a motion to intervene or comments with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). The Commission will limit its consideration of comments to those that concern the adequacy or accuracy of the amended application. All such motions and comments should be filed on or before November 16, 2001, and must be served on the applicant. 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. This filing may also be viewed on the web at
Take notice that on November 5, 2001, Columbia Gulf Transmission Company (Columbia Gulf) tendered for filing the following tariff sheets as part of its FERC Gas Tariff, Second Revised Volume No. 1:
Columbia Gulf states that it is filing the tariff sheets to comply with the Commission's October 24, 2001 orders approving negotiated rate agreements in Docket Nos. RP96-389-031, and -032.
Columbia Gulf states further that copies of the filing served copies of the filing on all parties identified on the official service list in Docket No. RP96-389.
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, NE., Washington, DC 20426, in accordance with §§ 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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. This filing may also be viewed on the web at
Take notice that on November 1, 2001, Dominion Transmission, Inc. (DTI), 445 West Main Street, Clarksburg, West Virginia 26301, filed in Docket No. CP02-18-000 a request pursuant to sections 157.205 and 157.208 of the Commission's Regulations under the Natural Gas Act (18 CFR 157.205 and 157.208) for authorization to uprate the maximum allowable operating pressure (MAOP) of Line 257-S from 940 psig to 1100 psig, located in Potter County, Pennsylvania, under DTI's blanket certificate issued in Docket No. CP82-537-000 pursuant to section 7 of the Natural Gas Act, all as more fully set forth in the request which is on file with the Commission and open to public inspection. This filing may be viewed on the web at
DTI proposes to uprate the MAOP of Line 257-S from 940 psig to 1100 psig, which is part of DTI's Sharon Storage Complex, and is located in Potter County, Pennsylvania. DTI indicates that the diameter of Line 257-S is mostly 12-inch with a small portion of the line being 16-inch pipe. On April 30, 1987, Consolidated Natural Gas Transmission Corporation (Consolidated), predecessor of DTI, indicates that it filed an application in Docket No. CP 87-314-000, seeking a certificate of public convenience and necessity, authorizing it to develop additional underground capacity in the Sharon Storage Pools. In the filing, DTI states that Consolidated proposed to install compression, increase the base gas level, and replace certain of the gathering system lines within the pool. DTI avers that Line 257-S was not replaced. DTI declares that at that time, the station discharge pressure was anticipated to be 940 psig, the MAOP of Line 257-S.
DTI states that in 1995, Line 257-S was hydro-tested, resulting in the ability to increase the MAOP from 940 psig to 1100 psig. DTI asserts that it would now like to utilize Line 257-S at an increased MAOP. DTI indicates that the requested MAOP of 1100 psig is below both the 2200 psig MAOP of the gathering system and the 1900 psig surface pressure at discovery of the Sharon Storage Complex.
DTI avers that the uprating of this storage pipeline will have no effect on the design capacity of the Sharon Storage Complex nor on the design capacity of the DTI system. DTI states that no new facilities are required. Therefore, DTI declares that there is no cost to DTI, or its customers, associated with increasing the certificated MAOP of this storage pipeline to 1100 psig.
Any questions regarding the application should be directed to Sean R. Sleigh, Certificates Manager, Dominion Transmission, Inc. 445 West Main Street, Clarksburg, West Virginia 26301, at (304) 627-3462 or Fax: (304) 627-3305.
Any person or the Commission's staff may, within 45 day after issuance of the instant notice by the Commission, 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 Natural Gas Act (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefor, the proposed activity shall be deemed to be authorized effective the day after the time allowed for 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 Natural Gas Act. Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Take notice that on October 18, 2001, Roseburg Forest Products Company (RFP), tendered for filing with the Federal Energy Regulatory Commission (Commission) a Substitute FERC Electric Rate Schedule No. 1 to include a prohibition on certain affiliate transactions. RFP is filing this Substitute Rate Schedule to comply with the Commission's letter dated October 11, 2001.
Any person desiring to be heard or to protest such filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions and protests should be filed on or before November 19, 2001. Protests will be considered by the Commission to determine 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. This filing may also be viewed on the Commission's web site at
Take notice that on November 5, 2001, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheet to become effective November 1, 2001:
Williston Basin states that it has revised the above-referenced tariff sheet found in section 48 of the General Terms and Conditions of its FERC Gas Tariff, Second Revised Volume No. 1 (Tariff), to add a new receipt point, Point ID No. 00885 (Bowdoin), to Williston Basin's Bowdoin Pool. Point ID No. 00885 (Bowdoin) is a new receipt point to allow Williston Basin to receive natural gas for its shippers.
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, NE., 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. This filing may also be viewed on the web at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commissions, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the internet in lieu of paper. See 18 CFR 385.2001(a)(l)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
k.
The Winton Development consists of the following existing facilities: (1) The Winton Dam comprising: (a) a 227-foot-long earth dike; (b) a 29-foot-high, 176-foot-long spillway section; (c) an 84-foot-long Taintor gate and log sluice section; (d) an 80-foot-long stop-log gate section; (e) an 111-foot-long and a 120-foot-long non-over-flow section; (f) a 161-foot-long intake section; and (g) a 1,250-foot-long earth dike; (3) a 2,982-acre reservoir comprising the Garden, Farm, South Farm, and Friday Lakes at
The Birch Lake Reservoir Development consists of: (1) A 7-foot high, 227-foot-long dam comprising; (a) a 72-foot-long Taintor gate section; and (b) an 85-foot-long sluice gate section; and (2) the 7,624-acre Birch Lake reservoir at normal water surface elevation of 1,420.5 feet USGS. This development provides water storage for the Winton Development.
l. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
m.
Final amendments to the application must be filed with the Commission no later than 45 days from the issuance date of the notice soliciting final terms and conditions.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
The Commission's rules of practice and procedure require all interveners filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
The Upper Development consists of the following existing facilities located across from the U.S. Army Corps of Engineers Upper Saint Anthony Lock: (1) Horseshoe Dam, a 1,952-foot-long concrete, timber, and rock structure topped with 1.6-foot-high wooden flashboards; (2) the main spillway, a concrete, timber and rock structure 425 feet wide and 150 feet-long; (3) a 340-foot-long roll dam; (4) a 358-acre reservoir with a normal pool water surface elevation of 799.2 feet NGVD, and a total storage capacity of 967 acre-feet; (5) a concrete and masonry powerhouse, 133 feet long by 92 feet wide; (6) 5 turbines with a total installed capacity of 12,400 kilowatts, and a maximum hydraulic capacity of 4,025 cfs, producing an average of 79,518 megawatt-hours annually; and (7) four 115-kilovolt primary transmission lines; and other appurtenances.
The Lower Development consists of an upstream closure dam, a downstream closure dam, and left retaining wall which encompass approximately 3.53 acres of land owned by Northern States Power Company (NSP). There are currently no hydropower facilities at the Lower Development. In November of 1987, the St. Anthony Falls Lower Dam Hydro Plant experienced an undermining failure. On August 19, 1988, the Commission issued an order authorizing complete demolition and removal of the lower facility. Demolition of the powerhouse was completed by the end of 1988. As of August 2001, all necessary remedial work necessary to ensure dam safety at the Lower Development has been completed to the Commission's satisfaction.
As part of the application for re-license of St. Anthony Falls Project, the applicant proposes to remove the lower development from the project. The Commission will discuss this alternative in its Environmental Assessment.
m.
Filing and Service of Responsive Documents—The application is ready for environmental analysis at this time, and the Commission is requesting comments, reply comments, recommendations, terms and conditions, and prescriptions.
The Commission directs, pursuant to § 4.34(b) of the regulations (see Order No. 533 issued May 8, 1991, 56 FR 23108, May 20, 1991) that all comments,
Anyone may obtain an extension of time for these deadlines from the Commission only upon a showing of good cause or extraordinary circumstances in accordance with 18 CFR 385.2008.
All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Any of these documents must be filed by providing the original and the number of copies required by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Environmental and Engineering Review, Office of Energy Projects, Federal Energy Regulatory Commission, at the above address. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
A two-day, Commissioner-led workshop will be held on December 10 and 11, 2001, beginning at 10:00 a.m., in the Commission Meeting Room at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC. The workshop will focus on the above listed 51 pending license applications filed at the Commission. The workshop is open to the public and all interested persons are invited to attend and participate.
The goals of the workshop are to: (1) Review and discuss the pending license applications; (2) identify unresolved issues; (3) determine next steps; (4) agree on who will take the next step; and (5) focus on solutions. The workshop will concentrate on identifying the unresolved issues associated with each project, and determining the best course of action to resolve or remove obstacles to final action on each pending license application.
A transcript of the discussions will be placed in the public record for Docket No. AD02-5-000 and in the record for each of the pending license applications.
Comments, papers, or other documents related to this proceeding may be filed in paper format or electronically. Those filing
For paper filings, the original and 8 copies of the comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Paper filings should, at the top of the first page, refer to Docket No. AD02-5-000 and reference the specific project name(s) and project number(s) that the comments concern. The deadline to file comments is January 11, 2002.
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Website at
All comments will be placed in the Commission's public files and will be available for inspection in the Commission's Public Reference Room at 888 First Street, N.E., Washington D.C. 20426, during regular business hours. Additionally, all comments may be viewed, printed, or downloaded remotely via the Internet through FERC's Homepage using the RIMS link. User assistance for RIMS is available at 202-208-2222, or by e-mail to
The workshop will be transcribed. Those interested in obtaining transcripts should contact Ace Federal Reporters at 202-347-3700.
The Capitol Connection will broadcast the workshop live via the Internet and by telephone. To find out more about The Capitol Connection's Internet and telephone bridge, contact David Reininger at 703-993-3100 or go to
Live and archived audio of the workshop will also available for a fee via National Narrowcast Network. Live audio is available by telephone at 202-966-2211 and by subscription on the Internet at
Anyone interested in purchasing videotapes of the workshop should call VISCOM at 703-715-7999.
Anyone wishing to participate via teleconference should call or E-mail Tom Dean at 202-219-2778 or
Anyone interested in participating in the workshop via video teleconference from one of the Commission's regional offices should call or E-mail the following staff to make arrangements. Sitting capacity is limited.
By December 3, 2001, an agenda for the workshop and information about the pending license applications will be posted on the Commission's web site under Hydro Licensing Status Workshop. Anyone without access to information on the Commission's web site, or who have questions should contact Tom Dean at 202-219-2778,
Federal Energy Regulatory Commission.
Order providing guidance.
The Federal Energy Regulatory Commission (Commission) is providing guidance to the electric industry with respect to its goals for the next phase of regional transmission organization (RTO) implementation. The action is needed to clarify the Commission's goals for resolving issues relating to scope and governance of qualifying RTOs across the nation and for addressing business and process issues needed for organizations to accomplish the functions of Order No. 2000. It also states some of the Commission's specific plans for moving the RTO development process forward.
David D. Withnell, Office of General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 208-2063.
It is a fundamental objective of the Commission, in exercising its responsibilities under Part II of the Federal Power Act, to create a seamless, national, competitive marketplace for wholesale sales of electric energy and adequate generation and transmission infrastructure to support that marketplace. Such a marketplace will provide customers with more reliable and efficiently priced electric energy than wholesale markets with unnecessary variation in market rules and business practices. As a cornerstone of support for this national marketplace, we have endeavored for several years to create regional transmission organizations (RTOs) to capture the benefits and efficiencies of a competitive power marketplace for the nation's electricity customers. The FERC has before it numerous ongoing proceedings involving RTO proposals, and it has recently assessed the status of these proceedings and the ongoing
The Commission held a public conference on RTO issues (RTO Week) during the week of October 15 through 19, 2001. RTO Week consisted of 10 sessions on various topics involving RTOs and the need for clear, appropriately standardized transmission tariff design and market rules. These sessions included participants from a wide range of affected interests and, significantly, included extensive comments from state commissioners. In addition, at our open meeting on October 24, 2001, we received status reports on RTO efforts in various regions of the country, including the Southeast, Northeast and Midwest. In association with the Western Governors' Committee on Regional Electricity Power Cooperation (CREPC) and the Commission's Western Regional Infrastructure Workshop in Seattle, Washington on November 1-2, 2001, the Commission also had the opportunity to hear updates on RTO efforts in the Western Interconnection. We now need to determine an expeditious, yet carefully deliberated, way to complete the development of RTOs, taking into account the need for further industry and state comments.
The Commission intends to complete the RTO effort using two parallel tracks. The first track will be to resolve issues relating to geographic scope and governance of qualifying RTOs across the nation; these will be addressed in pending RT dockets following consultation with state commissioners, as discussed below.
The second track for resolving RTO issues will be in the transmission tariff and market design rulemaking for public utilities, including RTOs, in Docket No. RM01-12-000. This will help address business and process issues needed for organizations to accomplish the functions of Order No. 2000.
The FERC will take several immediate steps to move the RTO process along these tracks: (1) A broader definition of how certain RTO functions will be fulfilled; (2) better state/federal dialogue; (3) further cost/benefit studies; (4) identification of areas where standardization is called for; and (5) creation of a time line for RTO implementation.
The Commission must ensure that the RTO not only efficiently operates a transmission grid, but also undertakes certain activities to enable and sustain a vibrant and fair wholesale marketplace. For both aspects of an RTO to be successful, broad stakeholder support is important. In a number of proceedings, parties have proposed the development of a separate organization to perform some of the wholesale market activities, some of which were specified as RTO functions under Order No. 2000, and some of which have been raised as additional activities to enable vibrant and efficient wholesale markets. These wholesale market activities include: (1) Congestion management; (2) ancillary services; (3) administration of a balancing market; (4) OASIS administration, including total transmission capacity and available transmission capacity calculations; (5) security coordination; (6) market monitoring; (7) regional transmission facility planning; and (8) tariff administration and design.
In Order No. 2000, the Commission contemplated that an ITC or an ISO may develop as a stand-alone RTO. In addition, however, the Commission will be seeking comments on other ways wholesale market activities might be fulfilled. For example, Midwest ISO, Alliance and Southwest Power Pool have already agreed to have a single market monitoring unit. In addition, the newly-formed Western Electric Coordinating Council handles both security coordination (reliability) and transmission planning duties. In order to phase in the progress toward comprehensive and geographically-large RTOs, these basic wholesale market activities could first be placed under the control or oversight of the broader organization. Other functions could be integrated into the broader organization later.
In written submissions in various pending dockets and in the discussions during RTO week, particularly from state commissions and public power entities, parties seek assurance that critical wholesale market operations are being administered as objectively as possible. A number of reasonable models have been offered for this function both in the mediation dockets and in pending RTO dockets. The FERC will address these issues in the pending RT dockets.
The invaluable participation of state commissioners in RTO Week confirms and reinforces our belief that we must work closely with state commissions to create a seamless national market. To that end, we plan to create and institute state-federal RTO panels as a forum for constructive dialogue between the Commission and state commissions with respect to RTO development.
We have asked our staff to provide recommendations on panel structure and propose a timeline for the work of the panels to begin. We invite state commissioners to participate in this process, and we look forward to working with them to address the ongoing needs of regional markets.
As the first matter of business, we intend to ask state commissioners to provide their advice to the Commission about the make-up of regional markets. Specifically, the Commission will ask them for comments on the allocation of wholesale market activities, as set forth in section A above. For example, in the West, it is now apparent that the presence of three sub-regional organizations (bound by a workable seams agreement) under a larger umbrella organization has the potential to succeed.
The Commission will institute additional outreach efforts with stakeholders and other interested persons on the status of, and obstacles to, RTO formation. For example, the Commission intends to meet with investor representatives to help us better understand the financing of independent transmission companies and of transmission construction.
On a parallel track to the organizational efforts listed above, the Commission will perform additional cost-benefit analyses on RTOs to guide our further efforts. These analyses are intended to demonstrate whether and, if so, how RTOs will yield customer savings and to provide a quantitative basis for the appropriate number of RTOs.
The Commission has established a working group with state commission participation to work with FERC staff and the study consultant in framing these further analyses.
As recently announced, we intend to issue a notice of proposed rulemaking in this docket that will reform the open access tariffs to standardize market design rules, as appropriate. Our task in this rulemaking will be to balance the need to remove undue discrimination and excessive costs in transmission services with the need to permit regional differences and market innovation. The reformed tariff will be required to be filed by RTOs and other public utilities that own, operate or control interstate transmission facilities.
During RTO Week we received many comments about the need for transmission tariff reform, and we also heard many views about the need for flexibility and market creativity in certain areas. RTO Week provided some concrete suggestions as to where flexibility is needed and where it will be a disadvantage. We look forward to receiving additional comments from the public on these issues.
The Commission recently issued an advance notice of proposed rulemaking in Docket No. RM02-1-000 on standardizing generation interconnection agreements and procedures. The first phase of our interconnection rulemaking process will be a Notice of Proposed Rulemaking (NOPR) on terms and conditions of interconnection services to be published in January, 2002. The second phase will be a separate NOPR on pricing issues associated with interconnections, to be published in April 2002. Interconnection rules are a critical piece of open access transmission services and RTOs initially will be required to follow the same interconnection policies that we set forth for other public utilities in the new rules. These rules will help support appropriately sited generation and appropriately priced infrastructure for new generation. It is clear that resolution of the pricing issue early in this process will allow for swifter consensus on broader RTO issues.
As noted above, numerous filings are pending involving RTO development. The Commission intends to issue future orders addressing the pending filings and providing specific guidance once it has received comments from the state regional panels as discussed above.
In recognition of the fact that RTO development is in very different stages in various parts of the country and that it is not possible for all RTOs to be in operation by the December 15, 2001 deadline established in Order No. 2000, we intend to address in our future orders the establishment of a progressive, but appropriately measured, timeline for continuing RTO progress in each general region. The Commission is particularly cognizant of the critical importance of keeping parties focused on performing RTO functions now while positioning for future, more regional integration. In particular, information systems are especially challenging to coordinate and must be handled with diligence and care. Any timetable ultimately adopted for regional integration must be based on a sound business plan with substantive buy-in from a cross-section of market participants.
This effort to create a seamless, national electricity marketplace is similar to that led by the Commission in the natural gas industry a decade ago. In that regard, the Commission calls upon all interested parties to commit the necessary time and resources to a thorough and expedient completion of the industry transition.
This order is not intended to provide final rulings with respect to creation of RTOs, but to lay out our goals and process for their creation. We have invited public comments subsequent to RTO Week, and we reiterate our willingness to consider the opinions of market participants, state commissions and the general public as we move to complete this transition. Although we strive for consensus where it can be reached, we are aware that the long-term success of regional electric markets will require the Commission to make timely and clear policy decisions. For that reason, we are committed to a broad and open process that will allow for the most developed record possible.
By the Commission.
Environmental Protection Agency (EPA).
Notice.
There will be a 1-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Food Quality Protection Act (FQPA) Scientific Advisory Panel (SAP) to review a set of issues being considered by the Agency pertaining to the applicability of the Up and Down Procedure Methodology in acute oral toxicity testing. Seating at the meeting will be on a first-come basis. Individuals requiring special accommodations at this meeting, including wheelchair access, should contact Paul Lewis at the address listed under
The meeting will be held on December 12, 2001, from 8:30 a.m. to 5 p.m.
The meeting will be held at the Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA 22202. The telephone number for the Sheraton Crystal City Hotel is (703) 486-1111.
Requests to participate may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Paul Lewis, Designated Federal Official, Office of Science Coordination and Policy (7202), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5369; fax number: (703) 605-0656; e-mail address: lewis.paul@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA), FIFRA and FQPA. 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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You may submit a request to participate in this meeting through the mail, in person, or electronically. Do not submit any information in your request that is considered CBI. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-00750 in the subject line on the first page of your request. Interested persons are permitted to file written statements before the meeting. To the extent that time permits, and upon advance written request to the person listed under
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The purpose of this meeting is to seek comments of the FIFRA SAP on the regulatory applicability of the Up and Down Procedure for acute oral toxicity testing. Acute oral toxicity testing constitutes the adverse health effects that occur within a short time of administration of a single dose of a chemical and provides information on its potential health and environmental hazards and risks. Acute oral toxicity is a basic requirement for registration and reregistration of pesticide active ingredients and products. An improved version of the Up and Down Procedure has been developed as an alternative method for use by member nations of the Organization for Economic Cooperation and Development to meet regulatory needs for acute toxicity. Accordingly, this method will replace the traditional acute oral toxicity test in EPA, Office of Prevention, Pesticides and Toxic Substances (OPPTS) test guideline 870.1100. The test procedure in this guideline is of value in minimizing the number of animals required to determine the acute oral toxicity testing of a chemical. In addition to the estimation of LD
The Panel will prepare a report of its recommendations to the Agency in approximately 60 days. The report will be posted on the FIFRA SAP web site or may be obtained by contacting the Public Information and Records Integrity Branch at the address or telephone number listed in Unit I. of this document.
Environmental protection.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's cancellation order for the product and use cancellations as requested by companies (hereafter collectively referred to as the “EUP Registrants”) that hold the registrations of pesticide End-Use Products (EUPs) containing the active ingredient diazinon and accepted by EPA, pursuant to section 6(f) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This order follows up a September 13, 2001, notice of receipt from the EUP Registrants, of requests for cancellations and or amendments of their diazinon product registrations to terminate all indoor uses, certain agricultural uses and certain outdoor non-agricultural uses. In the September 13, 2001 notice, EPA indicated that it would issue an order granting the voluntary product and use registration cancellations unless the Agency received any substantive comment within the comment period that would merit its further review of these requests. The Agency did receive one request from an EUP registrant revoking its voluntary cancellation requests for two products. No other comments were received. Accordingly, EPA hereby issues in this notice a cancellation order granting the remaining requested cancellations. Any distribution, sale, or use of the products subject to this cancellation order is only permitted in accordance with the terms of the existing stocks provisions of this cancellation order.
The cancellations are effective November 15, 2001.
By mail: John Hebert, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-6249; fax number: (703) 308-7042; e-mail address: hebert.john@epa.gov.
This action is directed to the public in general. You may be potentially affected by this action if you manufacture, sell, distribute, or use diazinon products. The Congressional Review Act, 5 U.S.C. 801
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Certain registrants requested in letters dated May, June and August 2001, that their diazinon registrations be amended to delete all indoor uses, certain agricultural uses, and any other uses that the registrants do not wish to maintain. The requests also included deletions of outdoor non-agricultural uses from the labeling of certain end-use products so that such products would be labeled for agricultural uses only. Similarly, other diazinon end-use registrants requested voluntary cancellation of their diazinon EUP registrations with indoor use and/or certain outdoor non-agricultural uses, and any other uses that the registrants do not wish to maintain. EPA announced its receipt of these above-mentioned cancellation requests in a
These requested cancellations and amendments are consistent with the requests in December 2000, by the manufacturers of diazinon technical products, and EPA's approval of such requests, to terminate all indoor uses and certain agricultural uses from their diazinon product registrations because of EPA's concern with the potential exposure risk, especially to children, associated with diazinon containing products. The indoor uses and agricultural uses subject to cancellation are identified in the following List.
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In today's Cancellation Order, EPA is approving the registrants' requested cancellations and amendments of the their diazinon end-use products registrations to terminate all uses identified in the List.
The end-use product registrations for which cancellation was requested are identified in the following Table 1.
The Agency received a request from the EUP registrant Prentiss Incorporated (EPA company number 655), revoking its voluntary cancellation requests for two products that were included in the September 13, 2001 notice. As a result, Prentox Liquid Household Spray #1 (EPA registration no. 655-419) and Prentox Diazinon 4E (EPA registration no. 655-457) are not included in this cancellation order. EPA did not receive any substantive comments that would merit further review expressing a need of diazinon products for indoor use. Accordingly, the Agency is issuing an
Pursuant to section 6(f)(1)(A) of FIFRA, many EUP registrants submitted requests to amend a number of their diazinon end-use product registrations to terminate the uses identified in the List, or any other uses as specified for each product in the September 13, 2001 Diazinon 6(f) notice and reiterated in Table 2 below. EPA did not receive any comments expressing a need for any of the canceled uses. The registrations for which amendments to terminate specific uses were requested are identified in the following Table 2.
Pursuant to section 6(f) of FIFRA, EPA hereby approves the requested cancellations of diazinon product and use registrations identified in Tables 1 and 2 of this notice. Accordingly, the Agency orders that the diazinon end-use product registrations identified in Table 1 are hereby canceled. The Agency, also orders that all of the uses identified in the List and all other uses (including specific outdoor non-agricultural uses) identified for deletion in Table 2 are hereby canceled from the end-use product registrations identified in Table 2. Any distribution, sale, or use of existing stocks of the products identified in Tables 1 and 2 in a manner inconsistent with the terms of this Order or the Existing Stock Provisions in Unit IV of this notice will be considered a violation of section 12(a)(2)(K) of FIFRA and/or section 12(a)(1)(A) of FIFRA.
For purposes of this Order, the term “existing stocks” is defined, pursuant to EPA's existing stocks policy (56 FR 29362, June 26, 1991), as those stocks of a registered pesticide product which are currently in the United States and which have been packaged, labeled, and released for shipment prior to the effective date of the amendment or cancellation. The existing stocks provisions of this Cancellation Order are as follows:
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Environmental protection, Memorandum of Agreement, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket control number PF-1054, must be received on or before December 17, 2001.
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: Cynthia Giles-Parker, Fungicide Branch, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200
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-1054, 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 a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by section 408(d)(3) of the FFDCA. The summary of the petition was prepared by the petitioner and represents the view of the petitioners. EPA is publishing the petition summary verbatim without editing it in any way. The petition summary announces 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 1F6250) from BASF Corporation, P. O. Box 13528, Research Triangle Park, NC 27709-3528 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for residues of the plant growth regulator mepiquat resulting from the use of mepiquat chloride (N,N-dimethylpiperdinium chloride) or mepiquat pentaborate (N,N-dimethylpiperidinium pentaborate hemi-hydrate) in or on the following raw agricultural and processed commodities: Cottonseed at 2.0 parts per million (ppm); cotton, gin by-products at 6.0 ppm, and meat byproducts of cattle, goat, hog, horse, and sheep at 0.1 ppm. EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
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Since the tolerance for mepiquat pentaborate is based on an expression as mepiquat, BASF is relying on the data for mepiquat chloride to support the requirement for all toxicological studies except for the acute studies. Acute toxicology studies were conducted with mepiquat pentaborate technical in support of the end use product. The mepiquat chloride data base is also used in support of the risk assessments presented in this document.
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Another dietary assessment was performed, by the Agency, for mepiquat chloride assuming tolerance levels residues and 100% crop treared on cotton, grape, meat, fat, and meat by-products (D260557, November 1, 1999, W. Cutchin). Risk estimates for exposure to mepiquat chloride were below HED's level of concern.
These chronic analyses for mepiquat are worst case estimates of dietary exposure with all residues at tolerance level and 100% of the commodities assumed to be treated with mepiquat. Based on the risk estimates calculated in these analyses, it has been concluded that dietary exposure to mepiquat does not pose any risk concerns.
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EPA has addressed the issue of the potential risk from the cumulative effects of mepiquat chloride and other pesticides with a common mechanism of toxicity in the RED document. In assessing the potential risks, the Agency first considered structural similarities and common effects that exist between mepiquat chloride and other related compounds such as paraquat, diquat and difenzoquat. The Agency then considered other compounds which could potentially result in neurotoxic effects similar to mepiquat chloride.
With one substance, difenzoquat, there appears to be similar neurotoxic effects. The Agency has concluded that the cumulative effects from the combined dietary exposure to mepiquat and difenzoquat would be virtually nil because the chronic dietary exposure for all population subgroups is less than 1% of the RfD for both difenzoquat and mepiquat chloride. The acute dietary MOE range for difenzoquat is 16,000 to 50,000 while the acute dietary MOE range for mepiquat chloride is 3,900 to 29,000.
In evaluating other chemicals with neurotoxic effects similar to mepiquat chloride, the Agency determined that it is unlikely that these other chemicals share a common mode/mechanism of toxicity with mepiquat chloride, or that cumulative risk assessment would be required. Although the mode/mechanism of toxicity of mepiquat chloride has not been well defined, the effects noted on the nervous system
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Since there are no residential or lawn uses of mepiquat, no dermal or inhalation exposure is expected in and around the home. No acute toxicity endpoints of concern have been identified for mepiquat.
In assessing chronic dietary risk, EPA estimates that mepiquat residues in food account for
In evaluating the potential for cumulative effects, EPA compared structural similarities and toxic effects seen in mepiquat chloride studies with other related compounds. With one substance, difenzoquat, there appears to be similar neurotoxic effects. However, the Agency has concluded that the cumulative effects from the combined dietary exposure to mepiquat chloride and difenzoquat would be virtually nil because the chronic dietary exposure for all population subgroups is less than 1% of the RfD for both difenzoquat and mepiquat chloride.
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In the developmental studies, effects were seen in the fetuses only at the same or higher dose levels than effects on the mothers. In the reproduction study, no effects on reproductive performance were seen. Also, because the NOAELs from the developmental and reproduction studies were equal to or greater than the NOAEL used for establishing the RfD, EPA concludes that it is unlikely that there is additional risk concern for immature or developing organisms. Finally, the Agency has no epidemiological information suggesting special sensitivity of infants and children to mepiquat chloride. Therefore, EPA finds that the uncertainty factor (100X) routinely used in RfD calculations is adequately protective of infants and children, and an additional uncertainty factor is not warranted for mepiquat.
EPA estimates that mepiquat residues in the diet of infants and children account for less than 1% of the RfD and residues in drinking water are not expected. Thus, the chronic aggregate exposure from all sources of mepiquat account for less than 1% for infants and children. The acute dietary MOE for infants and children exposed to mepiquat is 3,893. Therefore, the Agency concludes that aggregate risks for infants and children resulting from mepiquat uses are not of concern.
There are no Codex, Canadian, or Mexican tolerances established for mepiquat on cotton. Thus, international harmonization is not an issue for these tolerances.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket control number PF-1051, must be received on or before December 17, 2001.
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 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-1051 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 a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by section 408(d)(3) of the FFDCA. The summary of the petition was prepared by the petitioner and represents the view of the petitioner. The summary may have been edited by EPA if the terminology used was unclear, the summary contained extraneous information, or the summary unintentionally made the reader conclude that the findings reflected EPA's position and not the position of the petitioner. The petition summary announces 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 (1E6257) from The C.P. Hall Company, 311 S. Wacker, Suite 4700, Chicago, IL
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ii. An embryo toxicity study including teratogenicity was performed on the rat.
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1. The toxicity of green algae was conducted using OECD guideline method 201. The results show the
2. A Tier I seed germination, seedling emergence, and vegetative vigor phytotoxicity study was conducted.
The results from the analysis of the substance Tier I germination test for lettuce and radishes indicated that a significant difference did exist. No germination was present for the lettuce in treatment (100 ppm). Radish had a low germination of 26% for 100 ppm treatment, a detrimental effect greater than 25% compared to the control. The emergence test indicated a significant difference for lettuce in the substance at 113 ppm treatment, showing a detrimental effect greater than 25% compared to the control. Radish in the emergence test indicated no significant difference between treatments. The vegetative vigor test indicated the dicot species lettuce and radish had no significant effects from the exposure to the test compound 113 ppm treatment level.
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Section 408(b)(2)(D)(v) of FFDCA requires that when considering whether to establish, modify, or revoke a tolerance, or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of the chemicals residues. This compound has been used in European pesticides for a number of decades without any signs of acute or chronic exposure toxicity.
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To C. P. Hall's knowledge no international tolerances exist for this compound.
Environmental Protection Agency (EPA).
Notice of Availability.
In accordance with the Administrative Procedure Act (5 U.S.C. 552(a)), and the Clean Air Act provisions for judicial review (42 U.S.C. 7607(b)), this notice announces interpretations of applicability and alternative monitoring decisions that have been made by the EPA under the New Source Performance Standards (NSPS), and the National Emission Standards for Hazardous Air Pollutants (NESHAP).
Comments on any of the documents posted on the ADI database system must be submitted on or before January 14, 2002.
Comments may be submitted to the attention of Maria Malave; Mail Code 2223A; Compliance Assessment and Media Programs Division, Office of Compliance, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 20460 or send via E-mail to
An electronic copy of the complete document posted on the ADI database system is available on the Internet through the Applicability Determination Index (ADI) at:
The NSPS (40 CFR part 60) and the NESHAP (40 CFR parts 61 and 63) provide that a source owner or operator may request a determination of whether certain actions constitute the commencement of construction, reconstruction, or modification. EPA's written responses to these inquiries are broadly termed applicability determinations. See 40 CFR 60.5 and 61.06. The NSPS and NESHAP also allow sources to seek permission to use monitoring or recordkeeping which is different from the promulgated requirements. See 40 CFR 60.13(i), 61.14(g), 63.8(b)(1), 63.8(f), and 63.10(f). EPA's written response to these inquiries are broadly termed alternative monitoring. Further, EPA responds to written inquiries about the broad range of NSPS and NESHAP regulatory requirements as they pertain to a whole source category. These inquiries may pertain, for example, to the type of sources for which a regulation is applicable, or clarification of the applicable testing, monitoring, recordkeeping or reporting requirements.
EPA currently compiles EPA-issued NSPS and NESHAP regulatory interpretations pertaining to applicability determinations and alternative monitoring, and posts them on the Applicability Determination Index (ADI) on a quarterly basis. The ADI is an electronic index on the Internet with over one thousand EPA letters and memoranda pertaining to the applicability, monitoring, recordkeeping, and reporting requirements of the NSPS and NESHAP. The letters and memoranda may be searched by date, office of issuance, subpart, citation, or by string word searches.
Today's notice comprises a summary of 24 of such documents added to the ADI on August 31, 2001. The subject, author, recipient, and date (header) of each letter and memoranda is listed in this notice, as well as a brief abstract of the letter or memoranda. Complete copies of these documents may be obtained from the ADI at:
The following table identifies the database control number for each document posted on the ADI database system on August 31, 2001, the applicable category; the subpart(s) of 40 CFR part 60, 61, or 63 (as applicable) covered by the document; and the title of the document which provides a brief description of the subject matter. We have also included a summary of each abstract identified with its control number after the table.
Abstract for (A010001):
Q1. Does the asbestos NESHAP regulation apply to single family homes?
A1. The asbestos NESHAP program applies to “facilities” which include, institutional, commercial, public, industrial, or residential structures, i.e., apartments, condominiums, cooperatives. A single family residence or a residential building having four or fewer dwelling units is not subject to the asbestos NESHAP requirements.
Q2. If asbestos containing floor tile and mastic were removed by a jackhammer, would the resulting friable asbestos waste material be subject to the asbestos NESHAP regulations?
A2. If a contractor removes greater than 160 square feet of asbestos
Q3. What is the definition of “hand pressure”?
A3. There is no definition for “hand pressure” in the asbestos NESHAP regulations. There is a reference to “hand pressure” under the definition for regulated asbestos containing material. In a July 1992 applicability determination, the Agency wrote that vinyl asbestos tile in good condition, if subject to certain forces, i.e., mechanical, weather or aging can be weakened to the point where it can become friable because it can be crumbled, pulverized or reduced to powder by hand pressure. Using the jackhammer on asbestos containing tile has a high probability for significant fiber release. The tile becomes regulated asbestos containing material and subject to the asbestos NESHAP because using a jackhammer grinds or abrades the normally non-friable material.
Abstract for (A0100020):
Q: Why would a State and not the EPA have jurisdiction over asbestos in the case of a single-family home?
A: Single-family homes are not considered “facilities” under the asbestos NESHAP, thus no Federal laws or regulations are implicated. In addition, the State in this case has an equivalent asbestos NESHAP program, to which EPA generally defers. Thus, the State takes the lead in implementing the asbestos NESHAP program in the State. The determination letter provides further guidance on technical issues.
Abstract for (M010012):
Q. A facility operates a tank to produce a protective conversion coating on magnesium parts using an anodic process but no chromic acid is added to the tank. Is the tank subject to the Chromium NESHAP?
A. No. Chromium anodizing is defined under Subpart N 40 CFR 63.341 as the electrolytic process by which an oxide layer is produced on the surface of a base metal for functional purposes using a chromic acid solution. Because the facility does not use a chromic acid solution in the tank, EPA has concluded that this process is not an anodizing process that is regulated by the Chromium NESHAP.
Abstract for (M010013):
Q. Can continuous monitoring of vacuum indication on the negative pressure sections for both the Low Volume High Concentration (LVHC) and High Volume Low Concentration (HVLC) gas collection systems be used instead of conducting the 30-day inspections required by MACT for closed vent systems specified in 40 CFR 63.453(k)(2)?
A. Yes. EPA will approve an alternative monitoring method proposed to continuously monitor vacuum indication on the negative pressure sections for both the LVHC and HVLC collection systems with an additional requirement to perform a visual area survey once a quarter after loss of vacuum.
Abstract for (M010014):
Q. Will EPA approve a proposal to inspect the closed-vent and closed collection systems once every calendar month, with at least 14 days elapsed time between inspections, instead of once every 30 days as specified in 40 CFR 63.453(k) and (l)?
A. Yes.
Abstract for (M010015):
Q. Will EPA approve an “alternative standard” in accordance with 40 CFR 63.464(d) for measuring compliance with 40 CFR Part 63, subpart T?
A. Yes. EPA will approve an alternative method of compliance that includes additional monitoring parameters.
Abstract for (M010016):
Q. Can amperage loading on the scrubber fan be used instead of gas scrubber vent gas inlet flow rate measurements to ensure compliance with the HAP removal requirements of 40 CFR 63.445?
A. Yes, provided the appropriate monitoring values for the vent gas motor amperage established during the initial performance test are approved by the designated regulatory agency.
Abstract for (M010017):
Q: What is the time period that EPA considers when acting on an application for a new synthetic minor permit or a change to an existing synthetic minor permit for purposes of circumvention of 112(g)?
A: The EPA views any new construction, any proposal for new construction, or any relaxation of synthetic minor limits within 5 years of the initial permit as evidence of a potential phased construction for a source.
Abstract for (Z010003):
Q: Will a facility which is both owned by the Department of Energy (DOE) and licensed and regulated by the Nuclear Regulatory Commission (NRC) be subject to 40 CFR part 61, subpart H?
A: Yes. Subpart H applies to any facility which is owned or operated by the DOE.
Abstract for (Z010004):
Q: Are high-volume air samplers an acceptable alternative to continuous stack monitoring for demonstrating compliance with 40 CFR Part 61, subpart H?
A: Yes. The proposal meets the criteria specified in 40 CFR 61.93(b)(5).
Abstract for (0100039):
Q. Is NSPS subpart Kb applicable to three existing 100,000 gallon wastewater detoxification tanks?
A. No. For reasons other than those submitted by the company, EPA agrees that NSPS subpart Kb does not apply to the tanks. See the letter below for EPA's discussion of all pertinent and specific information used in this determination. The letter also addresses and discusses why the reasons submitted by the company to try to support this decision were not used.
Abstract for (0100040):
Q1: Does the Federal hospital/medical/infectious waste incinerator (HMIWI) section 111(d)/129 plan, subpart HHH, allow the use of continuous emission monitoring systems (CEMS) for determining compliance with the HCl emissions limitation instead of the stipulated methods—monitoring sorbent flow rates and use of EPA Reference Test Method 26?
A1: Yes, 40 CFR 62.14452(l) allows use of CEMS to demonstrate compliance with the HCl emissions limitation, providing the HMIWI owner/operator: (1) Determines compliance using a 12-hour rolling average, calculated each hour as the average of the previous 12 operating hours (not including startup, shutdown, or malfunction); (2) determines the measured HCl concentrations on an adjusted basis, 7 percent oxygen, dry; and (3) operates the CEMS in accordance with applicable EPA performance specifications, quality assurance and quality control requirements under appendices B and F of 40 CFR part 60.
Q2: Because EPA has not promulgated performance specifications, quality assurance and quality control requirements for hydrogen chloride CEMS, can EPA now approve a request for use of CEMS to determine HCl emission rates and compliance with subpart HHH?
A2: Yes, providing the alternative HCl monitoring request includes or references acceptable performance specifications (PS), and quality assurance/quality control (QA/QC) requirements. EPA has determined that the proposed use of the Pennsylvania Department of Environmental Protection (PADEP) CEMS manual, Revision No. 6, January 1996 will provide acceptable PS and QA/QC requirements.
Abstract for (0100041):
Q: Will EPA grant a facility a testing waiver/extension for its reconstructed 3L coating line and associated thermal oxidizer where the facility would be required to test the same line to show compliance with other State and federal regulations within a “short” period of time?
A: No. EPA will not grant a testing waiver/extension because the eighteen months between the required subpart RR compliance test and the deadline date for the MPCA test is too long.
Abstract for (0100042):
Q1: Will monitoring of fuel nitrogen content be required if natural gas is the only fuel fired in each turbine?
A1: No.
Q2: Will daily monitoring of sulfur be required if only pipeline quality natural gas is fired?
A2: No. The monitoring schedule from U.S. EPA's national guidance for subpart GG, dated August 14, 1987, should be used for sulfur monitoring when natural gas is fired.
Abstract for (0100043):
Q: May the sampling time for Method 9 opacity testing while burning fuel oil in a boiler be reduced to one hour per boiler?
A: Yes. In this particular case, the shorter test sampling time may be reduced to one hour for Boilers 4 and 5 while burning fuel oil because the construction permit is so restrictive that 3 hours of initial performance testing would consume a significant portion of the annual operating time allowed for these boilers while burning fuel oil.
Abstract for (0100044):
Q: Does the installation of Dense Pack turbine blades constitute a modification?
A: Probably not. Although such a project would constitute a nonroutine physical change under PSD, it would not be a modification under PSD (as well as NSPS) if there were not an associated emissions increase as defined under the respective PSD and NSPS rules.
Abstract for (0100045):
Q: Will EPA allow a reduced frequency of Relative Accuracy Test Audits (RATAs) for an infrequently operated boiler?
A: Yes. In this particular case, the boiler is operated only 8 days per year as a peaking unit. EPA believes that it is reasonable to provide for some reduction in quality assurance testing for the continuous emissions monitors, as long as the boiler meets acid rain program requirements at 40 CFR Part 75, and operates as a peaker.
Abstract for (0100046):
Q: Will EPA relieve a facility that uses only pipeline quality natural gas of the nitrogen monitoring requirements?
A: Yes.
Q: May a facility use the sulfur monitoring requirements in sections 2.3.1.4 and 2.3.3.1 of Appendix D to Part 75 in lieu of 40 CFR 60.334(b) and 60.335(a)?
A: Yes.
Q: Is a nitrogen CEM a permissible alternative to the monitoring requirements at 40 CFR 60.334(a) and 60.335(c)(2)?
A: Yes.
Abstract for (0100047):
Q: May a landfill use a natural attenuation factor for fugitive landfill gas control for the purpose of State fee reports and emission inventories?
A: No. Natural attenuation was evaluated during the rulemaking process for 40 CFR part 60, subpart WWW. Analysis by the U.S. EPA determined that there was insufficient oxygen and residence time for aerobic biofiltration to be a significant removal pathway.
Abstract for (0100048):
Q1: Is nitrogen monitoring of either natural gas or landfill gas required?
A1: Nitrogen monitoring of landfill quality natural gas is not required. Nitrogen monitoring of landfill gas will be waived if EPA receives adequate information that the landfill gas in question contains very little fuel-bound nitrogen.
Q2: Will EPA permit a facility not to perform sulfur monitoring when natural gas and landfill gas are used?
A2: No. However, this particular facility provided data on the sulfur content of each type of fuel. This data showed that the sulfur content was minimal. Therefore, the facility may begin at semi-annual testing.
Abstract for (0100049):
Q: Did Tenneco commence construction when it internally obligated funds for the purpose of modifying a boiler prior to June 19, 1984, thereby not triggering NSPS, subpart Db applicability?
A: No. For the purposes of subpart A, there was no contractual obligation to construct an affected facility.
Q: Does the installation of sampling ports on a boiler constitute commencement of construction?
A: No. The ports were installed to gather data for planning and design work, or other unrelated activities, which does not constitute commencement of construction, reconstruction, or modification.
Abstract for (0100050):
Q: Will EPA grant Tyson Foods an alternative fuel usage recordkeeping plan under subpart Dc?
A: Yes. The specific recordkeeping requirements for the facility are included in Attachment A to the response letter.
Abstract for (0100051):
Q1: Will EPA approve the waiver of monitoring fuel bound nitrogen for facilities using only pipeline quality natural gas?
A1: Yes.
Q2: What should the sulfur monitoring schedule be for peaking-only units that use only natural gas and operate only during the summer months?
A2: These types of peaking units test once per month during the initial ozone season (May-September). If this shows little variability, then sulfur monitoring should be conducted once per season thereafter.
Abstract for (0100052):
Q: A company intends to burn stripper off gases (SOGs) from pulping processes in a boiler subject to subpart Db, which would cause the facility to exceed the subpart Db NO
A: No. Since the combustion of SOGs in the boiler is not exempt from NSPS subpart Db, the proposed alternative monitoring procedure is not acceptable. However, EPA's OAQPS has agreed to initiate rulemaking to amend the subpart Db regulation to allow the establishment of an alternative NO
Environmental Protection Agency (EPA).
Notice; request for public comments.
In June 1992, the United States signed, and later ratified in
Written comments should be received on or before noon, December 17, 2001.
Comments should be submitted to Mr. Reid P. Harvey via e-mail at
Mr. Reid P. Harvey, Office of Atmospheric Programs, U.S. Environmental Protection Agency at (202) 564-9429.
In accordance with the UNFCCC's reporting requirements as specified in Articles 4.2 and 12, and following reporting guidelines developed (and adopted by the UNFCCC COP at its first session), the United States prepared the U.S. Climate Action Report (CAR) and submitted it to the UNFCCC Secretariat in October 1994.
At the Second COP, the Parties requested developed country Parties to the Convention to submit to the UNFCCC Secretariat, in accordance with Articles 12.1 and 12.2 of the Convention, a second national communication by April 15, 1997. Parties who submitted first reports in 1996 were to provide an update by the 1997 deadline and Parties with economies in transition were to provide their second communication by April 15, 1998. Developing country Parties have different guidelines and due dates for their national communications. The United States submitted its second national communication to the UNFCCC Secretariat in July 1997.
At the Fifth COP in 1999, the Parties updated the guidelines for preparation of national communications (see FCCC/CP/1999/7). This document is available on the Internet at
The U.S. issued a Federal Register notice on March 19, 2001 (66 FR 15470-15471) to provide an opportunity for the public to submit input on the issues covered in the third national communication. A copy of the
The third CAR provides an update on key activities conducted by the U.S. since the second CAR, an inventory of U.S. greenhouse gas emissions and sinks, an estimate of the effects of mitigation measures and policies on future emissions levels, and a description of U.S. involvement in international programs, including associated contributions and funding efforts. In addition, the text discusses U.S. national circumstances that affect U.S. vulnerability and responses to climate change. Finally, the CAR presents information on the U.S. Global Change Research Program, Global Climate Observing Systems (GCOS), and adaptation programs.
This
You may view the 1997 U.S. Climate Action Report on the Internet at:
Environmental Protection Agency (EPA).
Final issuance of NPDES general permit.
EPA Region 6 today issues a National Pollutant Discharge Elimination System (NPDES) general permit regulating discharges from oil and gas wells in the Coastal Subcategory in Texas and regulating produced water discharges from wells in the Striper and Offshore Subcategories which discharge into coastal waters of Texas.
The permit prohibits the discharge of drilling fluid, drill cuttings, produced sand and well treatment, completion and workover fluids. Produced water discharges are prohibited, except from wells in the Stripper Subcategory located east of the 98th meridian whose produced water comes from the Carrizo/Wilcox, Reklaw or Bartosh formations in Texas. Discharge of dewatering effluent is prohibited, except from reserve pits which have not received drilling fluids and/or drill cuttings since January 15, 1997. The discharge of deck drainage, formation test fluids, sanitary waste, domestic waste and miscellaneous discharges is authorized. All of the authorized discharges have effluent limitations.
The limits and monitoring requirements in this permit shall become effective on December 17, 2001.
Ms. Diane Smith, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. This final permit can also be found on the Internet at
Regulated categories and entities include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your (facility, company, business, organization, etc.) is regulated by this action, you should carefully examine the applicability criteria in Part I, Section A.1 of this permit. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Pursuant to section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, EPA proposed and solicited public comment on NPDES General Permit TXG330000 at 66 FR 6607 (January 22, 2001). The comment period closed on March 23, 2001. Region 6 received written comments from the International Association of Drilling Contractors. The Association requested minor changes to two of the Miscellaneous Discharges; specifically, the term “desalination unit discharge” would be more descriptive if termed “distillation and reverse osmosis brine”, and the definition of “uncontaminated water” should be expanded to include seawater cooling overboard discharge, chain locker effluent and firemain system discharge. Those changes were made in the final permit. The Association also asked EPA to add a permit requirement for permittees to inform contractors and subcontractors of any permit conditions effecting operations they have been contracted to perform. In response, EPA has added language to Part I, Section B of the final permit requiring operators to take reasonable steps to assure regulated pollutants are not unlawfully discharged by third parties. This language was in the 1995 Coastal Produced Water General Permit, one of the predecessor permits to today's permit, but was omitted from the draft version of today's permit.
Under section 401(a)(1) of the Clean Water Act, EPA may not issue an NPDES permit until the State in which the discharge will originate grants or waives certification to ensure compliance with appropriate requirements of the Act and State law. The Railroad Commission of Texas waived certification of the permit.
EPA's regulations at 40 CFR part 6, subpart F, which implement the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4331,
When EPA issued the previous Permit TXG330000, effective October 21, 1993, covering existing sources, but not New Sources, the United States Fish and Wildlife Service concurred with EPA's finding that the permit was unlikely to adversely affect any threatened or endangered species or its critical habitat. When EPA issued Permit TXG290000, effective February 8, 1995, the Service also concurred with EPA's finding that the permit was unlikely to adversely affect any threatened or endangered species or its critical habitat. The Region found that adding New Source coverage to the permit is also unlikely to adversely affect any threatened or endangered species or its critical habitat. EPA received written concurrence from the United States Fish and Wildlife Service on May 2, 2001, and from the National Marine Fisheries Service on May 1, 2001, on this determination.
The 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act set forth a new mandate to identify and protect important marine and anadromous fisheries habitats. The purpose of addressing habitat in this act is to further the goal of maintaining sustainable fisheries. Guidance and procedures for implementing these amendments are contained in National Marine Fisheries Service regulations (50 CFR 600.805-600.930). These regulations specify that any Federal agency that authorizes or proposes to authorize an activity which would adversely affect an Essential Fish Habitat is subject to the consultation provisions of the Manguson-Stevens Act. The Texas Coastal Subcategory areas covered by this general permit include Essential Fish Habitat designated under the Magnuson-Stevens Act.
Based on the prohibitions and limitations and other requirements contained in this proposed general permit, as well as the Essential Fish Habitat Assessment prepared for this permit reissuance, the Region found that issuance of this permit is unlikely to adversely affect Essential Fish Habitat. EPA received written concurrence dated November 29, 2000, from the National Marine Fisheries Service on this determination.
The Coastal Zone Management Act and its implementing regulations (15 CFR part 930) require that any Federally licensed or permitted activity affecting the coastal zone of a state with an approved Coastal Zone Management Program be consistent with that Program. EPA has concluded, based on the conditions, limitations and prohibitions of this permit that the discharges associated with this permit are consistent with the Texas Coastal Management Program goals and
Facilities which adversely affect properties listed or eligible for listing in the National Register of Historical Places are not authorized to discharge under this permit.
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. EPA has determined that this general permit is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to formal OMB review prior to proposal.
The information collection required by this permit has been approved by OMB under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act, 5 U.S.C. 601
Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, generally requires Federal agencies to assess the effects of their “regulatory actions” on State, local, and tribal governments and the private sector. UMRA uses the term “regulatory actions” to refer to regulations. (See, e.g., UMRA section 201, “Each agency shall * * * assess the effects of Federal regulatory actions * * * (other than to the extent that such regulations incorporate requirements specifically set forth in law)” (emphasis added)). UMRA section 102 defines “regulation” by reference to section 658 of Title 2 of the U.S. Code, which in turn defines “regulation” and “rule” by reference to section 601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA defines “rule” as “any rule for which the agency publishes a notice of proposed rulemaking pursuant to section 553(b) of the Administrative Procedure Act (APA), or any other law.* * *”
NPDES general permits are not “rules” under the APA and thus not subject to the APA requirement to publish a notice of proposed rulemaking. NPDES general permits are also not subject to such a requirement under the Clean Water Act (CWA). While EPA publishes a notice to solicit public comment on draft general permits, it does so pursuant to the CWA section 402(a) requirement to provide “an opportunity for a hearing.” Thus, NPDES general permits are not “rules” for RFA or UMRA purposes.
EPA thinks it is unlikely that this permit issuance would contain a Federal requirement that might result in expenditures of $100 million or more for State, local and tribal governments, in the aggregate, or the private sector in any one year. The Agency also believes that the permit issuance would not significantly nor uniquely affect small governments. For UMRA purposes, “small governments” is defined by reference to the definition of “small governmental jurisdiction” under the RFA. (See UMRA section 102(1), referencing 2 U.S.C. 658, which references section 601(5) of the RFA.) “Small governmental jurisdiction” means governments of cities, counties, towns, etc., with a population of less than 50,000, unless the agency establishes an alternative definition. The permit issuance also would not uniquely affect small governments because compliance with the permit conditions affects small governments in the same manner as any other entities seeking coverage under the permit.
In compliance with the provisions of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq: the “Act”), this permit regulates discharges from existing source and New Source oil and gas wells in the Coastal Subcategory of the Oil and Gas Extraction Point Source Category (40 CFR part 435, subpart D) in Texas. In addition, this permit regulates produced water from the Stripper and Offshore Subcategories which discharges into coastal waters of Texas. The discharges are regulated in accordance with effluent limitations and other conditions set forth in Parts I and II of this permit.
In order for discharges to be authorized by this permit, operators of facilities discharging waste waters from oil and gas wells must submit written notification to the Regional Administrator that they intend to be covered (See Part I.A.2). For existing leases, the notification must be submitted no later than 45 days after the effective date of this permit. For leases obtained subsequent to the effective date of this permit, the notification must be submitted at least fourteen days prior to the beginning of the discharge. Unless otherwise notified in writing by the Regional Administrator after submission of the notification, operators requesting coverage are authorized to discharge under this general permit. Operators who fail to notify the Regional Administrator of intent to be covered are not authorized to discharge under this general permit.
Facilities which may adversely affect properties listed or eligible for listing in the National Register of Historic Places are not authorized to discharge under this permit.
This permit shall become effective at midnight, Central Standard Time on December 17, 2001.
This permit and the authorization to discharge shall expire at midnight, Central Time on December 15, 2006.
This permit regulates discharges from existing source and New Source oil and gas wells in the Coastal Subcategory of the Oil and Gas Extraction Point Source Category (40 CFR part 435, subpart D) in Texas. In addition, this permit regulates produced water from the Stripper and Offshore Subcategories which discharges into coastal waters of Texas.
Operators of leases (or lease blocks) desiring authorization to discharge under this general NPDES permit must submit a written Notice of Intent (NOI) to be covered. Operators of facilities having only produced water and produced sand, whose discharge is prohibited by this permit, are automatically covered and a written NOI to be covered by this permit is not required of these facilities. The NOI shall include the legal name and address of the operator, the lease (or lease block) number assigned by the Railroad Commission of Texas or, if none, the name commonly assigned to the lease area, and the type of facilities located within the lease (or lease block). For New Source discharges (as defined in 40 CFR part 435, subpart D), the NOI must also identify any facility which is a New Source and state the date on which the facility's protection from more stringent new source performance standards or technology based limitations ends. That date is the earlier of: ten years from the date that construction is completed, ten years from the date the source begins to discharge process or non-construction related waste water, or the end of the period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954.
For existing leases, the NOI must be submitted within 45 days of the effective date of this permit. For leases obtained subsequent to the effective date of this permit, the NOI must be submitted at least fourteen days prior to the commencement of discharge. If the lease block was previously covered by another permit, the operator shall also include the previous permit number in the notification.
For facilities applying for authorization to discharge reserve pit dewatering effluent from drilling fluids and drill cuttings dewatering activities, the NOI must certify that such reserve pit(s) have not received drilling fluids and/or drill cuttings after January 15, 1997.
The definition of New Source is found at 40 CFR 122.2 and the criteria for New Source determination are found at 40 CFR 122.29. Additional definitions pertaining to Coastal Subcategory New Sources are found at 40 CFR part 435, subpart D. According to part 435, subpart D, exploratory facilities are never New Sources, although development and production facilities may be New Sources if they meet the criteria for New Source determination.
All notifications of intent to be covered and any subsequent reports shall be sent to the following address: Water Enforcement Branch (6EN-WC), U.S. Environmental Protection Agency, Region 6, P.O. Box 50625, Dallas, TX 75250.
Upon receipt of the notification, EPA will notify the facility of its specific facility identification number that must be used on all correspondence with the Agency.
Lease (or lease block) operators shall notify the Regional Administrator within 60 days after the permanent termination of discharges from their facilities. Lease (or lease block) operators shall notify the Regional Administrator within 30 days of any transfer of ownership.
Permittees shall not discharge nor shall they cause or allow the discharge of pollutants regulated under this permit except in compliance with its limitations and terms. Operators of facilities generating pollutants regulated under this permit shall take reasonable positive steps to assure said pollutants are not unlawfully discharged to waters of the United States by third parties and shall maintain documentation of those steps for no less than three years.
Effluent limitations of this permit include:
1. DRILLING FLUID—No discharge.
2. DRILL CUTTINGS—No Discharge.
3. PRODUCED WATER—No Discharge.
4. PRODUCED SAND—No Discharge.
5. DEWATERING EFFLUENT—No Discharge.
No discharge of free oil as measured by the static sheen test.
Oil and grease—15 mg/l daily maximum.
Total suspended solids (TSS)—50 mg/l daily maximum.
Total dissolved solids (TDS)—3000 mg/l daily maximum.
COD—200 mg/l daily maximum.
pH—6.0 to 9.0 Standard Units.
Chlorides—500 mg/l daily maximum (discharges to inland areas) 1000 mg/l daily maximum (discharges to tidally influenced watercourses).
Hazardous metals—The discharge must not contain concentrations of the substances classified as “hazardous metals” in excess of the levels allowed by Texas Administrative Code (TAC) 319.21.
6. DECK DRAINAGE—No Discharge of free oil, as determined by the presence of a film or sheen upon or a discoloration of the surface of the receiving water (visual sheen).
Monitoring shall be once per day, when discharging, during conditions when an observation of a sheen is possible and when the facility is manned. The number of days a sheen is detected must be recorded.
7. FORMATION TEST FLUIDS—No Discharge, except to bays and estuaries where no chloride standards have been established.
Where discharges are allowed, the limits are:
Free oil—No Discharge as determined by the static sheen test. Monitoring shall be once per day.
pH—6.0 to 9.0 Standard Units. A grab sample must be taken once per discharge event.
8. WELL TREATMENT, COMPLETION AND WORKOVER FLUIDS—No Discharge
9. SANITARY WASTE—
No floating solids.
BOD5—45 mg/l daily maximum. Monitoring shall be once per quarter using grab samples.
TSS—45 mg/l daily maximum. Monitoring shall be once per quarter using grab samples.
Fecal coliform—200/100 ml. Monitoring shall be once per week using grab samples.
10. DOMESTIC WASTE—No discharge of floating solids or garbage or foam.
11. MISCELLANEOUS DISCHARGES—
For miscellaneous discharges, the discharge of free oil is prohibited as determined by a visual sheen on the surface of the receiving water. Discharge is authorized only at times when visual sheen observation is possible. Discharge may occur at any time if the operator uses the static sheen method for detecting free oil. Monitoring shall be once per day, when discharging.
12. OTHER DISCHARGE CONDITIONS—
a.
Rubbish, Trash and Other Refuse—The discharge of any solid material not authorized in the permit (as described above) is prohibited.
b.
Surfactants, Dispersants and Detergents—The discharge of surfactants, dispersants, and detergents used to wash working areas shall be minimized except as necessary to comply with applicable State and Federal safety requirements.
In accordance with the provisions of 40 CFR 122.41,
The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Act and is grounds for enforcement action, for terminating coverage under this permit, or for requiring a permittee to apply for and obtain an individual NPDES permit.
a. Notwithstanding Part II.A.4, if any toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under section 307(a) of the Act for a toxic pollutant which is present in the discharge and that standard or prohibition is more stringent than any limitation on the pollutant in this permit, this permit shall be modified or revoked and reissued to conform to the toxic effluent standard or prohibition.
b. The permittee shall comply with effluent standards or prohibitions established under section 307(a) of the Act for toxic pollutants within the time provided in the regulations that established those standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.
This permit may be modified, revoked and reissued, or terminated for cause in accordance with 40 CFR 122.62-122.64. The filing of a request for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition.
This permit does not convey any property rights of any sort, or any exclusive privilege.
The permittee shall furnish to the Director, within a reasonable time, any information which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit.
Except as provided in permit conditions on “Bypassing” and “Upsets,” nothing in this permit shall be construed to relieve the permittee from civil or criminal penalties for noncompliance. Any false or materially misleading representation or concealment of information required to be reported by the provisions of the permit, the Act, or applicable regulations, which avoids or effectively defeats the regulatory purpose of the Permit may subject the Permittee to criminal enforcement pursuant to 18 U.S.C. 1001.
Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under section 311 of the Act.
Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to any applicable State law or regulation under authority preserved by section 510 of the Act.
The provisions of this permit are severable, and if any provision of this permit or the application of any provision of this permit to any circumstance is held invalid, the application of such provision to other circumstances, and the remainder of
It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. The permittee is responsible for maintaining adequate safeguards to prevent the discharge of untreated or inadequately treated wastes during electrical power failure either by means of alternate power sources, standby generators or retention of inadequately treated effluent.
The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.
a. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by permittee as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants and will achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of this permit.
b. The permittee shall provide an adequate operating staff which is duly qualified to carry out operation, maintenance and testing functions required to insure compliance with the conditions of this permit.
The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of Parts II.B.4.b. and 4.c.
(1) Anticipated Bypass.
If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least ten days before the date of the bypass.
(2) Unanticipated Bypass.
The permittee shall, within 24 hours, submit notice of an unanticipated bypass as required in Part II.D.7.
(1) Bypass is prohibited, and the Director may take enforcement action against a permittee for bypass, unless:
(a) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(b) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and,
(c) The permittee submitted notices as required by Part II.B.4.b.
(2) The Director may allow an anticipated bypass after considering its adverse effects, if the Director determines that it will meet the three conditions listed at Part II.B.4.c(1).
An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of Part II.B.5.b. are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.
A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
(1) An upset occurred and that the permittee can identify the cause(s) of the upset;
(2) The permitted facility was at the time being properly operated;
(3) The permittee submitted notice of the upset as required by Part II.D.7; and,
(4) The permittee complied with any remedial measures required by Part II.B.2.
In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.
Unless otherwise authorized, solids, sewage sludges, filter backwash, or other pollutants removed in the course of treatment or waste water control shall be disposed of in a manner such as to prevent any pollutant from such materials from entering navigable waters, and in accordance with other applicable laws or regulations.
The permittee shall allow the Director, or an authorized representative, upon the presentation of credentials and other documents as may be required by the law to:
a. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;
b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;
c. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices or operations regulated or required under this permit; and
d. Sample or monitor at reasonable times, for the purpose of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location.
Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.
The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report, or application. This period may be extended by request of the Director at any time.
Records of monitoring information shall include:
a. The date, exact place, and time of sampling or measurements;
b. The individual(s) who performed the sampling or measurements;
c. The date(s) and time(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
a. Monitoring must be conducted according to test procedures approved under 40 CFR part 136, unless other test procedures have been specified in this permit or approved by the Regional Administrator.
b. The permittee shall calibrate and perform maintenance procedures on all monitoring and analytical instruments at intervals frequent enough to insure accuracy of measurements and shall maintain appropriate records of such activities.
c. An adequate analytical quality control program, including the analyses of sufficient standards, spikes, and duplicate samples to insure the accuracy of all required analytical results shall be maintained by the permittee or designated commercial laboratory.
The permittee shall give notice to the Director as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:
a. The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in 40 CFR 122.29(b); or,
b. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements listed at Part II.D.10.a.
The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.
Coverage under these permits is not transferable to any person except after notice to the Director.
Monitoring results obtained during the previous 12 months for all discharges at a facility shall be summarized and reported to EPA and the appropriate State agency on the 28th day of the month following the end of the twelve month period on Discharge Monitoring Report (DMR) Form EPA No. 3320-1 in accordance with the “General Instructions” provided on the form. The permittee shall submit the original DMR signed and certified as required by Part II.D.11 and all other reports required by Part II.D. to the EPA at the address below.
If the permittee monitors any pollutant more frequently than required by this permit, using test procedures approved under 40 CFR part 136 or as specified in this permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the Discharge Monitoring Report (DMR). Such increased monitoring frequency shall also be indicated on the DMR.
Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Director in the permit.
a. The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally to the EPA Region 6 24-hour voice mail box telephone number 214-665-6593 within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall be provided within 5 days of the time the permittee becomes aware of the circumstances. The report shall contain the following information:
(1) A description of the noncompliance and its cause;
(2) The period of noncompliance including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and,
(3) Steps being taken to reduce, eliminate, and prevent recurrence of the noncomplying discharge.
b. The following shall be included as information which must be reported within 24 hours:
(1) Any unanticipated bypass which exceeds any effluent limitation in the permit;
(2) Any upset which exceeds any effluent limitation in the permit; and,
(3) Violation of a maximum daily discharge limitation for any pollutants listed by the Director in Part II of the permit to be reported within 24 hours.
c. The Director may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
The permittee shall report all instances of noncompliance not reported under Parts II.D.4 and D.7 and Part I.C at the time monitoring reports are submitted. The reports shall contain the information listed at Part II.D.7.
Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information.
The permittee shall notify the Director as soon as it knows or has reason to believe:
a. That any activity has occurred or will occur which would result in the discharge, on a routine or frequent basis, of any toxic pollutant listed at 40 CFR part 122, appendix D, Tables II and III (excluding Total Phenols) which is not limited in the permit, if that discharge will exceed the highest of the following “notification levels”:
(1) One hundred micrograms per liter (100 ug/L);
(2) Two hundred micrograms per liter (200 ug/L) for acrolein and acrylonitrile; five hundred micrograms per liter (500 ug/L) for 2,4-dinitro-phenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 mg/L) for antimony;
(3) Five (5) times the maximum concentration value reported for that pollutant in the permit application; or
(4) The level established by the Director.
b. That any activity has occurred or will occur which would result in any
(1) Five hundred micrograms per liter (500 ug/L);
(2) One milligram per liter (1 mg/L) for antimony;
(3) Ten (10) times the maximum concentration value reported for that pollutant in the permit application; or
(4) The level established by the Director.
All applications, reports, or information submitted to the Director shall be signed and certified.
a. All permit applications shall be signed as follows:
(1) For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:
(a) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision making functions for the corporation; or,
(b) The manager of one or more manufacturing, production, or operating facilities, provided, the manager is authorized to make management decisions which govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.
(2) For a partnership or sole proprietorship—by a general partner or the proprietor, respectively.
b. All reports required by the permit and other information requested by the Director shall be signed by a person described above or by a duly authorized representative of that person. A person is a duly authorized representative only if:
(1) The authorization is made in writing by a person described above;
(2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or an individual occupying a named position; and,
(3) The written authorization is submitted to the Director.
c. Certification.
Any person signing a document under this section shall make the following certification:
I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
Except for applications, effluent data, permits, and other data specified in 40 CFR 122.7, any information submitted pursuant to this permit may be claimed as confidential by the submitter. If no claim is made at the time of submission, information may be made available to the public without further notice.
The Act provides that any person who negligently violates permit conditions implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or both.
The Act provides that any person who knowingly violates permit conditions implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or both.
The Act provides that any person who knowingly violates permit conditions implementing sections 301, 302, 303, 306, 307, 308, 318, or 405 of the Act and who knows at that time that he is placing another person in imminent danger of death or serious bodily injury is subject to a fine of not more than $250,000, or by imprisonment for not more than 15 years, or both.
The Act provides that any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under the Act or who knowingly falsifies, tampers with, or renders inaccurate, any monitoring device or method required to be maintained under the Act, shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or by both. (See section 309.c.4 of the Clean Water Act)
The Act provides that any person who violates a permit condition implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a civil penalty, as specified in 40 CFR 19.4, for each violation.
The Act provides that any person who violates a permit condition implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to an administrative penalty, as specified in 40 CFR 19.4, for each violation.
All definitions contained in section 502 of the Act shall apply to this permit and are incorporated herein by reference. Unless otherwise specified in this permit, additional definitions of words or phrases used in this permit are as follows:
1. ACT means the Clean Water Act (33 U.S.C. 1251
2. ADMINISTRATOR means the Administrator of the U.S. Environmental Protection Agency.
3. BLOWOUT PREVENTER FLUID is used to actuate the hydraulic equipment on the blowout preventer.
4. BOD5 means five day biochemical oxygen demand.
5. BYPASS means the intentional diversion of waste streams from any portion of a treatment facility.
6. COD means chemical oxygen demand.
7. DAILY MAX discharge limitation means the highest allowable “daily discharge” during the calendar month.
8. DISTILLATION AND REVERSE OSMOSIS BRINE is wastewater associated with the process of creating fresh water from seawater.
9. DIATOMACEOUS EARTH FILTER MEDIA is filter media used to filter seawater or other authorized completion fluids and subsequently washed from the filter.
10. DIRECTOR means the U.S. Environmental Protection Agency Regional Administrator or an authorized representative.
11. DOMESTIC WASTE is materials discharged from sinks, showers, laundries, safety showers, eyewash stations, hand-wash stations, fish cleaning stations, and galleys located within facilities subject to this permit.
12. ENVIRONMENTAL PROTECTION AGENCY means the U.S. Environmental Protection Agency.
13. FACILITY (as defined in 40 CFR 122.2) means any NPDES “point source” or any other facility or activity that is subject to regulation under the NPDES program.
14. FORMATION TEST FLUIDS are the discharge that would occur if hydrocarbons are located during exploratory drilling and tested for formation pressure and content.
15. GRAB SAMPLE means an individual sample collected in less than 15 minutes.
16. “MGD” means million gallons per day.
17. “mg/L” means milligrams per liter or parts per million (ppm).
18. MUDS, CUTTINGS AND CEMENT AT THE SEA FLOOR are discharges which occur at the sea floor prior to installation of the marine riser and during marine riser disconnect and well abandonment and plugging operations.
19. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements, under sections 307, 318, 402, and 405 of the Act.
20. SEVERE PROPERTY DAMAGE means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.
21. STATIC SHEEN is defined in the static sheen test in appendix 1 to 40 CFR part 435, subpart A.
22. UNCONTAMINATED WATER is freshwater or seawater which is returned to the receiving water without the addition of any chemicals. Included are (1) Discharges of excess water that permit the continuous operation of fire control and utility lift pumps, (2) excess water from pressure maintenance and secondary recovery projects,(3) water released during the training and testing of personnel in fire protection, (4) water used to pressure test piping, (5) once-through, non-contact cooling water, (6) potable water released during transfer and tank emptying operations and (7) condensate from air conditioning units, (8) seawater cooling overboard discharge, (9) chain locker effluent, and (10) firemain system discharge .
23. UPSET means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
24. VISUAL SHEEN means a “silvery” or “metallic” sheen, gloss, or increased reflectivity, visual color, or iridescence on the water surface.
Environmental Protection Agency (EPA).
Notice of public comment period extension availability.
This notice announces the extension availability of the public comment period of the
Comments must be submitted for the
Comments on the published notices should be sent to Ellen Caldwell, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733. For further information, contact Ellen Caldwell at (214) 665-7513. The administrative record file for these TMDLs and the determinations that TMDLs are not needed are available for public inspection at this address as well. Documents from the administrative record file may be viewed at
Ellen Caldwell at (214) 665-7513.
In 1996, two Louisiana environmental groups, the Sierra Club and Louisiana Environmental Action Network (plaintiffs), filed a lawsuit in Federal Court against the EPA, styled
EPA will review all data and information submitted during the extended public comment period and revise the TMDLs and determinations that TMDLs are not needed where appropriate. EPA will then forward the TMDLs to the Court and the Louisiana Department of Environmental Quality (LDEQ). LDEQ will incorporate the TMDLs into its current water quality management plan. EPA also will revise the Louisiana 303(d) list as appropriate.
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is given that the Commission, on November 5, 2001, pursuant to sections 11 and 19 of the Shipping Act of 1984, served an Order to Show Cause on AAA Nordstar Line, Inc. (“AAA Nordstar”), a Delaware corporation incorporated in 1991 which has operated an ocean transportation intermediary (“OTI”) pursuant to FMC license No. 012234 since August 2000. According to a review of records maintained by the Commission's Bureau of Consumer Complaints and Licensing (“BCCL”), AAA Nordstar maintains principal offices at 1571 Irving Street in Rahway, New Jersey. BCCL records identify the principals of the firm as Anil V. Rane, its President and Qualifying Individual, and Maria E. Fabros, its Vice President and Secretary.
It has come to the attention of the Commission that Anil Rane and Maria Fabros also serve as officers and/or shareholders of Great Eastern Shipping, Inc. (“Great Eastern Shipping”), an unlicensed entity engaged in the transportation of military household goods pursuant to contracts with the U.S. Military Traffic Management Command (“MTMC”). It further appears that Great Eastern Shipping was then sharing office space with AAA Nordstar in Rahway, NJ and possibly at other locations, and that Great Eastern Shipping has held itself out to the public as serving as the agent of AAA Nordstar.
On July 26, 2001, judgment was rendered against Anil Rane in the United States District Court for the District of New Jersey, pursuant to Mr. Rane's plea of guilty to two federal counts alleging mail fraud and conspiracy to commit mail fraud. On September 14, 2001, judgment was rendered against Maria Fabros in the United States District Court, pursuant to Mrs. Fabros' plea of guilty to two counts of mail fraud and conspiracy to commit mail fraud. Sentencing documents relating to the above judgments assert that, from September 1998 through June 2000, co-conspirators Anil Rane and Maria Fabros, acting through Great Eastern Shipping, were awarded more than 350 single-shipment contracts for ocean transportation of cargo through the Department of Defense. It was asserted that defendants Anil Rane and Maria Fabros routinely overbilled MTMC and also falsified documents to make it appear that Great Eastern Shipping was using U.S. flag vessels when the transportation was, in fact, performed by foreign-registered vessels, contrary to U.S. shipping laws and the applicable MTMC shipping contracts. Each defendant was sentenced to jail time and extended court supervision upon subsequent release. Pursuant to a separate settlement agreement, defendants agreed to make financial restitution to the government in the amount of $4,323,673.79.
The crimes of mail fraud and conspiracy to commit mail fraud in connection with Great Eastern Shipping's business of handling and transporting military household goods on behalf of the Department of Defense, admitted in the pleas of guilty entered by Mr. Anil Rane and Mrs. Maria Fabros, constitute acts of moral turpitude reflecting directly upon the licensee's continued fitness to conduct business as an OTI. This is true inasmuch as the offending officials, and perhaps others having ties to Great Eastern Shipping, have served and may continue to serve as employees, officers, directors and shareholders of the corporate licensee, or as the agents for same through the means or device of Great Eastern Shipping. It further appears that, in applying for and conducting business under authority of its OTI license, AAA Nordstar Inc. and its principals made materially false or misleading statements to the Commission, and subsequently failed to correct such omissions or otherwise advise the Commission of changes in material facts relating to its operations
The order directs AAA Nordstar Inc. to show cause, why its OTI license, FMC No. 012234, should not be revoked inasmuch as the officers, directors or other principals, employees or agents of licensee have been found to have violated provisions of the 1984 Act or other shipping statutes or regulations related to carrying on the business of an ocean transportation intermediary, and that such licensee is otherwise not qualified to render intermediary services.
The full text of the Order may be viewed on the Commission's home page at
Any person may file a petition for leave to intervene in accordance with 46 CFR 502.72 and the provisions of the Order to Show Cause.
Notice is hereby given that the following applicants have been filed with the Federal Maritime Commission an application for licenses as Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR 515).
Persons knowing of any reason why the following applicant should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, effective on the corresponding date shown below:
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint that accompanies the consent agreement and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before December 8, 2001.
Comments should be directed to: FTC/Office of the Secretary, Room 159, 600 Pennsylvania Ave., NW., Washington, DC 20580.
Jonathan Cowen or Joni Lupovitz, FTC/S-4302, 600 Pennsylvania Ave., NW., Washington, DC 20580. (202) 326-2533 or 326-3273.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and section 2.34 of the Commission's rules of practice (16 CFR 2.34), notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 8, 2001), on the World Wide Web, at “
Public comment is invited. Comments should be directed to: FTC/Office of the Secretary, Room 159, 600 Pennsylvania Ave., NW., Washington, DC 20580. Two paper copies of each comment should be filed, and should be accompanied, if possible, by a 3
The Federal Trade Commission has accepted, subject to final approval, an agreement for entry of a consent order from Esrim Ve Sheva Holding Corp., a corporation sometimes doing business as Gadget Universe, and its CEO, Alexander Elnekaveh, individually and as an officer of the corporation (referred to collectively as “respondents”). The agreement would settle a complaint by the Federal Trade Commission that respondents engaged in deceptive acts or practices in violation of section 5(a) of the Federal Trade Commission Act.
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
This matter concerns advertising representations made about Super FuelMAX, an automotive fuel-line magnet. The administrative complaint alleges that respondents violated the FTC Act by disseminating advertisements that made unsubstantiated performance claims about Super FuelMAX: The Complaint alleges that respondents represented that Super Fuel Max: (1) Causes fuel molecules to line up in straight columns and rows; (2) improves fuel burn through magnetic resonance; (3) reduces fuel consumption; (4) reduces fuel consumption by 27% or up to 27%; (5) reduces harmful emissions or pollutants; and (6) reduces harmful emissions or pollutants by 42% or up to 40%. The Complaint further alleges that respondents represented that they had a reasonable basis for making these claims, but in fact did not possess competent evidence supporting them. Additionally, the Complaint challenges, as false, claims that tests performed at a certified U.S. Environmental Protection Agency prove that: (a) Increases mileage by 27%; and (b) reduces harmful pollutants by 42%.
The Complaint also alleges that respondents falsely represented that a testimonial from respondent Alexander Elnekaveh reflected: (a) Elnekaveh's actual findings and experience with the product; and (b) the typical or ordinary experience of members of the public who use the product.
The proposed consent order contains provisions designed to prevent respondents from engaging in similar acts and practices in the future. Part I of the proposed consent order prohibits respondents from making unsubstantiated claims in connection with any fuel-line magnet or any purported fuel-saving or emission-reducing product for use with a motor vehicle, including claims about the effect of such product on fuel molecules and that such product improves fuel burn; reduces fuel consumption or reduces fuel consumption by any number, percentage, or rate; reduces emissions or pollutants or reduces emissions or pollutants by any number, percentage, or rate; or about the benefits, performance, or efficacy of such product. The evidence required to substantiate such claims must be competent and reliable evidence, which, when appropriate, must be competent and reliable scientific evidence.
Part II of the proposed consent order prohbits respondents from misrepresenting that any user testimonial or endorsement of the product reflects the actual and current opinions, findings, beliefs, or experiences of the user.
Part III of the proposed consent order prohibits respondents from representing that the experience represented by any user testimonial or endorsement of the product represents the typical or ordinary experience of members of the public who use the product, unless the representation is true and, at the time it is made, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation; or respondents disclose what the generally expected results would be for users of the product, or that consumers should not expect to experience similar results.
Part IV of the proposed consent order prohibits respondents from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research.
The remainder of the proposed consent order also contains provisions regarding record-keeping, distribution of the order, notification of changes in corporate status, notification of changes in employment of the individual respondent, the filing of a compliance report, and termination of the order.
The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and the proposed order or to modify their terms in any way.
By direction of the Commission.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
Surveillance for Bloodstream and Vascular Access Infections in Outpatient Hemodialysis Centers (0920-0442)—Renewal—National Center for Infectious Diseases (NCID), NCID Centers for Disease Control and Prevention (CDC), is proposing to renew a study of bloodstream infections, vascular access infections, hospitalization, and antimicrobial starts at U.S. outpatient hemodialysis centers. Although bloodstream and vascular access infections are common in hemodialysis patients, there was previously no system to record and track these complications.
Participation in the proposed project is voluntary. Currently about 80-90 centers report data each month. We estimate that about 100 of the approximately 4,500 U.S. outpatient hemodialysis centers will participate in the coming years. Participating centers may collect data continuously, or may discontinue participation at any time; we estimate that the average center will participate for nine months. Each month, participating centers will record the number of hemodialysis patients they treat and maintain a log of all hospitalizations and intravenous (IV) antimicrobial starts. For each hospitalization or IV antimicrobial start, further information (
Centers that participate in the Internet-based reporting system may also analyze their own data and print out reports as desired. Rates of bloodstream infection, vascular access infection, and antimicrobial use per 1000 patient-days will be calculated. Also, the percentage of antimicrobial starts for which a blood culture is performed will be calculated. Through use of these data, dialysis centers will be able to track rates of key infectious complications of hemodialysis. This will facilitate quality control improvements to reduce the incidence of infections, and clinical practice guidelines to improve use of antimicrobials. The total cost to the respondents is $126,000.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Class II Special Controls Guidance Document: Indwelling Blood Gas Analyzers; Final Guidance for Industry and FDA.” This guidance document describes the controls FDA believes will provide reasonable assurance of the safety and effectiveness of three anesthesiology devices. Elsewhere in this issue of the
Submit written or electronic comments on the guidance at any time. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies on a 3.5′′ diskette of the guidance document entitled “Class II Special Controls Guidance Document: Indwelling Blood Gas Analyzers; Final Guidance for Industry and FDA” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send two self-addressed adhesive labels to assist that office in processing your request, or fax your request to 301-443-8818. See the
Submit written comments concerning this guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Comments should be identified with the docket number found in brackets in the heading of this document. Submit electronic comments to http://www.fda.gov/dockets/ecomments.
Christy Foreman, Center for Devices and Radiological Health (HFZ-450), Food and Drug Administration, 9200
This guidance document was developed as a special controls guidance to support the reclassification of three anesthesiology devices from class III (premarket approval) to class II (special controls). The three devices are:
• Indwelling blood carbon dioxide partial pressure (Pco
• Indwelling blood hydrogen ion concentration (pH) analyzer (21 CFR 868.1170), and
• Indwelling blood oxygen partial pressure (Po
The guidance document combines and supersedes the guidances entitled “Guidance for Electrical Safety, Electromagnetic Compatibility and Mechanical Testing for Indwelling Blood Gas Analyzer Premarket Notification Submissions” and “Guidance for Indwelling Blood Gas Analyzer 510(k) Submissions” which, in turn, incorporated the special controls listed separately in the March 15, 1999 (64 FR 12774), proposal to reclassify these devices. In the
FDA received one comment on the document entitled “Guidance for Indwelling Blood Gas Analyzer 510(k) Submissions” that was proposed as a special control for the devices. The comment, submitted by Diametrics Medical Ltd., disagreed that all clinical studies should be designated “significant risk” and be conducted under an investigational device exemption (IDE).
FDA agrees with the comment and has modified the guidance. With the exception of devices employing new technology, studies of the device are nonsignificant risk. These nonsignificant risk studies are exempt from IDE requirements in accordance with § 812.2(c)(2) (21 CFR 812.2(c)(2)), but must be performed in accordance with parts 50 and 56 (21 CFR parts 50 and 56). However, if the device employs new technology (i.e., technology different from that used in a legally marketed indwelling blood gas analyzers), FDA has determined that studies of this device are significant risk, as defined in 21 CFR 812.3(m)(4) and, therefore, do not qualify for the abbreviated requirements of § 812.2(b). In addition to the requirement of having an FDA-approved IDE, sponsors of such trials must comply with the regulations governing institutional review boards (part 56) and informed consent (part 50).
Designation of this guidance as a special control means that manufacturers attempting to establish that their device is substantially equivalent to a predicate indwelling blood gas analyzer should demonstrate that the proposed device complies with either the specific recommendations of this guidance or some alternate control that provides equivalent assurance of safety and effectiveness.
This guidance document represents the agency's current thinking concerning indwelling blood gas analyzers. 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 applicable statute and regulations.
The agency has adopted good guidance practices (GGPs) and published the final rule, which set forth the agency's regulations for the development, issuance, and use of guidance documents (21 CFR 10.115). This guidance document is issued as a level 2 guidance in accordance with the GGP regulations.
In order to receive “Class II Special Controls Guidance Document: Indwelling Blood Gas Analyzers; Final Guidance for Industry and FDA” via your fax machine, call the CDRH Facts-On-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. Press 1 to enter the system. At the second voice prompt, press 1 to order a document. Enter the document number (1126) followed by the pound sign (#). Follow the remaining voice prompts to complete your request.
Persons interested in obtaining a copy of the guidance may also do so using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes the civil money penalty guidance documents package, device safety alerts,
Interested persons may submit to the Dockets Management Branch (address above) written or electronic comments regarding this guidance at any time. Submit two copies of any comments, except that individuals may submit one copy. Comments should be identified with the docket number found in brackets in the heading of this document. The guidance document and received comments may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Office of the Chief Information Officer, HUD.
Notice.
The propose information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, and extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0424) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed uses; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0313) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
9 a.m. to 5 p.m. EST, December 5, 2001.
Main Auditorium, National Geographic Society, 1145 17th Street, NW., Washington, DC.
The Department of the Interior, as co-chair with the Department of Commerce, on behalf of the Coral Reef Task Force announces a public meeting of the Coral Reef Task Force. We will accept comments on the discussion documents until November 30, 2001.
Agenda and Discussion Documents. Documents to be discussed include a Final Charter and Final Oversight Policy. These documents and the agenda are available from Susan White at (202) 208-6211, or on the web at http://coralreef.gov/ . Public comments were previously solicited on the draft Oversight document from November 26, 1999 to January 3, 2000.
Comments regarding these matters should be sent to Susan White, Office of
The public is invited to comment on the following application(s) for a permit to conduct certain activities with endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973,
The applicant request a permit to import biological samples from African elephants (
The applicant request a permit to import four captive born African wild dogs (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to export and re-import tigers (
The applicant requests a permit to import five male and seven female captive-born lesser mouse lemurs (
The public is invited to comment on the following application(s) for a permit to conduct certain activities with marine mammals. The application(s) was submitted to satisfy requirements of the Marine Mammal Protection Act of 1972,
Written data, comments, or requests for copies of these complete applications or requests for a public hearing on these applications should be submitted to the Director (address below) and must be received within 30 days of the date of this notice. Anyone requesting a hearing should give specific reasons why a hearing would be appropriate. The holding of such a hearing is at the discretion of the Director.
The applicant requests a permit to import a polar bear (
The U.S. Fish and Wildlife Service has information collection approval from OMB through March 31, 2004, OMB Control Number 1018-0093. Federal Agencies may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a current valid OMB control number.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203, telephone 703/358-2104 or fax 703/358-2281.
Bureau of Land Management, Interior.
Notice of restriction order for BLM lands on Blackwell Island, Kootenai County, Idaho, Order No. ID-080-29.
By order, all public land at Blackwell Island Coeur d'Alene, Idaho is temporarily closed to all public use for the duration of site improvement construction activities. The affected area is described as all public land north of U. S. Highway 95 within the city limits of Coeur d'Alene in section 14: lots 4 and 5, T. 50N., R. 4W., B.M. A map depicting the closed area is available for public inspection at the Bureau of Land Management, Coeur d'Alene Field Office, 1808 North Third Street, Coeur d'Alene, Idaho. The closure becomes effective immediately and shall remain in effect until construction activities are completed and this order is rescinded.
The authority for establishing this restriction is Title 43, Code of Federal Regulations, 8364.1
This restriction does not apply to:
(1) Any federal, state or local government officer or member of an organized rescue or fire fighting force while in the performance of an official duty.
(2) Any Bureau of Land Management employee, agent, contractor, or cooperator while in the performance of an official duty.
(3) Any contractor, subcontractor or delivery person while in the performance of an approved site construction activity.
(4) Any person or group expressly authorized by an Authorized Officer to use or occupy the subject public land through the issuance of a permit or other use authorization instrument.
This temporary closure is necessary as a public safety measure and to avoid public interference with construction activities.
Violation of this order is punishable by a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months.
Terry Kincaid, (208) 769-5031.
Bureau of Land Management, Interior.
In accordance with the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
The purpose of this Notice is to invite suggestions and the submittal of relevant information for the proposed IAP/EIS. Potential issues include, but are not limited to, wildlife resources protection (terrestrial and aquatic); oil and gas leasing and development (pursuant to 43 CFR Part 3130); subsistence resources and activities and possible impacts on subsistence from various management alternatives; access, recreation, and visual resources; threatened and endangered species; and historic; cultural, soil, water, and vegetation resources. Potential management actions and activities which may have environmental and subsistence impacts for the area include mineral material extraction; oil and gas exploration and development; wilderness; recreation; commercial development; recommendations for wilderness designations; modifications of existing Special Areas; and identification of any new areas for additional resource protection. Information, comments, and nominations on specific issues to be addressed in the plan are sought from all interested parties. This early planning and consultation step is important for ensuring that all interests and concerns are communicated to the Department of the Interior for future decisions in land use, planning, and management.
The area subject to this Notice is composed of those BLM-administered lands, subject to valid existing rights, in the northwestern portion of NPR-A. The northwestern portion of NPR-A is described as: Beginning on the western boundary NPR-A on the east—west township line between T.8 N., R.40 W., and T.9 N., R.39 W., Umiat Meridan (UM.); Thence proceed easterly along the township line to the northeast corner of T.8 N., R.26 W., UM.; Thence proceed southerly along the township line to the southeast corner of T.7 N., R.26 W., UM.; Thence proceed easterly along the township line to the northeastern corner of T.6 N., R.25 W., UM.; Thence proceed southerly along the township line to the southeast corner of T.5 N., R.25 W., UM.; Thence proceed easterly along the township line to the northeast corner of T.4 N., R.24 W., UM.; Thence proceed southerly along the township line to the southeast corner of T.1 N., R.24 W., UM.; Thence proceed easterly along the township line to the northeast corner of T.1 S., R.24 W., UM.; Thence proceed southerly along the township line to the southeast corner of T.4 S., R.24 W., UM.; Thence proceed easterly along the township line to a point where the left bank of the Colville River meets the southern township line of T.4 S., R.15 W., UM.; Thence proceed in a generally easterly direction following the left bank of the Colville River to a point where the Colville River intercepts the eastern boundary of T.3 S., R.6 W., UM.; Thence proceed northerly following the township lines to the northeast corner of T.2 N., R.6 W., UM.; Thence proceed westerly following the township line to the right bank of the Ikpikpuk River on the south township line of T.3 N., R.12 W., UM.; Thence proceed northerly along the right bank of the Ikpikpuk River to the northern boundary of NPR-A; Thence follow the boundary of NPR-A in a general westerly and then southerly direction to the point of beginning of this description. This planning area consists of approximately 9,980,000 acres of which approximately 9,437,000 are federal and approximately 543,000 acres are in private ownership. A large scale map of the plan area (which also serves as the Call map) showing boundaries of the area by township is available from the Alaska State Office, BLM, 222 West 7th Avenue, Anchorage, AK 99501, telephone (907) 271-5546.
BLM seeks information and comments on issues relating to the future land use, planning, and management of the northwest portion of NPR-A. Also requested is information and comments on resources, such as wilderness, wildlife and subsistence resources, as well as current and potential future activities on these lands, including possible development of the area's oil and gas potential. The agency is interested in learning what areas are of particular value for various species and uses, and what measures should be considered to protect resources and uses from potentially impacting activities. Comments are also sought on any potential conflicts with approved coastal management plans (CMPs) and other land use plans that may result from possible future activities in the area. These comments should identify specific policies of concern as listed in CMPs or other plans, the nature of the conflicts foreseen, and steps that BLM could take to avoid or mitigate the potential conflicts. Comments may be in terms of broad areas or focused on particular townships of concern. Comments are sought on activities and measures to protect surface resources within the plan area, including fish and wildlife, historical and scenic values. Comments are sought on subsistence uses and needs within the plan area and possible impacts on subsistence from other uses of the area. Comments should include recommendations for particular
Pursuant to 43 CFR 3131.1 and 3131.2, relevant information related to possible oil and gas leasing is requested for the plan area. Oil and gas companies are specifically requested to nominate areas within the plan area that they would like to have considered for oil and gas leasing. Nominations must be depicted on the Call map by outlining the area(s) of interest along township lines. Nominators are asked to submit a list of townships nominated to facilitate correct interpretation of their nominations on the Call map. Although the identities of those submitting nominations for oil and gas leasing become a matter of public record, the individual nominations will be held confidential consistent with applicable law. Nominators also are requested to rank townships nominated for oil and gas leasing according to priority of interest [(e.g., priority 1 (high), 2 (medium), or 3 (low)]. Townships nominated that do not indicate priorities will be considered priority 3. Nominators are encouraged to be specific in indicating townships by priority. Blanket priorities on large areas are not useful in the analysis of industry interest. The telephone number and name of a person to contact in the nominator's organization for additional information should be included in the response. The regulations at 43 CFR part 3130 limit the size of an oil and gas lease tract within the NPR-A boundaries to no more than 60,000 acres (43 CFR 3130.4-1). Although nominations are to be submitted along township lines, comments are also being sought on the preferred size of tracts for leasing in this area, not to exceed 60,000 acres.
Responses to this request for information and comments, and call for nominations must be received no later than 45 days following publication of this document in the Federal Register. Nominations must be submitted in envelopes labeled “Nominations Related to the NPR-A IAP/EIS” to protect the confidentiality of the nominations. The original Call map with nominations must be submitted to the NPR-A Planning Team Leader, Bureau of Land Management, 222 West 7th Avenue #13, Anchorage, AK 99513-7599. Information, comments, and nominations submitted in responses to this publication will assist in early scoping and later development of alternatives for the IAP/EIS and will help identify areas for potential activities, including oil and gas development and resource protection.
Approximate dates for actions and decisions in the planning process for this proposal are:
All meetings will begin at 7:00 PM. Meeting locations will be announced later.
Curt Wilson, (907) 271-5546 or
Bureau of Land Management, Interior.
Combined Resource Advisory Council Meeting locations and times.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972 (FACA), the Department of the Interior, Bureau of Land Management (BLM) Council meetings will be held as indicated below. Topics for discussion will be a presentation and discussion of accomplishments during 2001 and the outlook for 2002 of the BLM in Nevada; opening and closeout reports of the three Resource Advisory Councils (RACs); discussion of acquisitions proposed to be funded by the Southern Nevada Public Land Management Act of 1998; breakout meetings of the “pods'; breakout meetings of the three RACs; setting of schedules for meetings of the individual RACs for the coming year, and other issues members of the councils may raise.
All meetings are open to the public. During the two noon luncheons, members of the public may join the group for lunch, at their own expense. The public may present written comments to the three-RAC group or the individual RACs. The public comment period for the council meeting will be at 3 p.m. on Thursday, November 8. Individuals who plan to attend and need further information about the meeting or need special assistance such as sign language interpretation or other reasonable accommodations, should contact Robert Stewart at the Nevada State Office, BLM, 1340 Financial Blvd., Reno, telephone (775) 861-6586.
Robert Stewart, Public Information Specialist, BLM Nevada State Office, 1340 Financial Blvd., Reno, Nevada, telephone (775) 861-6586.
Bureau of Land Management, Interior.
Notice of realty action: Direct sale of public lands in Klamath County, Oregon (OR 53841).
The following land has been found suitable and is classified for direct sale under section 203 and 209 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1713 and 43 U.S.C. 1719, and section 7 of the Taylor Grazing (43 U.S.C. 315f). The land will be sold at no less than the fair market value of $10,200 .00. The land will not be offered for sale until at least 60 days after this notice.
The above described land is hereby segregated from appropriation under the public land laws, including the mining laws, but not from sale under the above cited statutes, for 270 days or until title transfer is completed or the segregation is terminated by publication in the
This land is difficult and uneconomic to manage as part of the public lands and is not suitable for management by another Federal agency. No significant resource values will be affected by this disposal. The sale is consistent with BLM's planning for the land involved and the public interest will be served by the sale.
Purchasers must be U.S. citizens, 18 years of age or older, a state or state instrumentality authorized to hold property, or a corporation authorized to own real estate in the state in which the land is located.
The lands are being offered to Kennedy Land Company, LLC using the direct sale procedures authorized under 43 CFR 2743.3-3. Direct sale is appropriate because there is no public access to the public lands and the public lands are surrounded by lands owned by the sale proponent.
The terms, conditions, and reservations applicable to this sale are as follows:
1. A right-of-way for ditches and canals will be reserved to the United States in under 43 U.S.C. 945.
2. All oil and gas and geothermal resources in the land will be reserved to the United States in accordance with Section 209 of the Federal Land Policy and Management Act of 1976.
3. The mineral interests being offered for conveyance have no known mineral value. The acceptance of a direct sale offer will constitute an application for conveyance of the mineral estate, with the exception of the oil and gas and geothermal interests which will be reserved to the United States in accordance with Section 209 of the Federal Land Policy and Management Act of 1976.
4. Patents will be issued subject to all valid existing rights and reservations of record.
If land identified in this notice is not sold it will be offered competitively on a continuing basis until sold.
Detailed information concerning the sale, including the reservations, sale procedures, and planning and environmental documents, is available at the Klamath Falls Field Office 2795 Anderson Ave. Building 25 Klamath Falls, OR 97603.
For a period of 45 days from the date of publication of this notice in the
Bureau of Land Management, Interior.
Notice of intent to prepare an amendment to the Headwaters Resource Management Plan (RMP) and an associated Environmental Assessment (EA).
This document provides notice that the Bureau of Land Management (BLM) intends to prepare an amendment to the Headwaters RMP and an associated EA. This process will develop a Travel Management Strategy that will identify a designated road and trail system to accommodate motorized and non-motorized recreation opportunities on approximately 28,000 acres in the Headwaters planning area. These lands are located east of Butte and northwest of Whitehall, in Jefferson County, Montana. The scoping comment period will commence with the publication of this notice. Formal scoping will end 30 days after publication of this notice. Comments should be received on or before the end of the scoping period at the address listed below. There has been extensive public involvement for this project over the past several years. Comments made during this process do not need to be re-submitted.
For further information, contact Steve Hartmann, 406-533-7671, or Ruth Miller, 406-533-7645, Butte Field Office. Send written comments to Whitetail-Pipestone EA, Butte Field Office, 106 North Parkmont, Butte,
In 1995, the U.S. Forest Service and BLM issued a Notice of Intent to Prepare an EIS for the Whitetail-Pipestone analysis area. In June 1998, the BLM implemented an Emergency Closure Order restricting motorized use to existing roads and trails until a Decision is issued for the Whitetail/Pipestone area. The purpose for this closure was to prevent further user-created trails and prevent damage occurring to cultural sites and riparian areas, and to prevent erosion and the spread of noxious weeds.
In 2000, the Forest Service withdrew from the project due to budget reasons; the majority of the analysis area (84 percent) was Forest Service System lands. The BLM decided to proceed with an EA after the Western Montana Resource Advisory Council (RAC) recommended the BLM continue with the project.
Many roads and trails in the analysis area are user-created through repeated use for many years by miners, loggers, ranchers, or for recreation purposes. The proposed action would define a road and trail system and identify a method to prioritize roads and trails for maintenance, decommissioning, and new construction. Preliminary issues and management concerns identified to date are: (1) To bring recreation management into compliance with the 1984 BLM Headwaters Resource Management Plan; (2) to manage cultural properties in accordance with the National Historic Preservation Act of 1966, as amended, the Archaeological Resources Protection Act of 1979 and other appropriate Federal laws; (3) to address the changes in recreation activities during the last 10 years and to address the current and anticipated travel demands on public land in the project area; and (4) to manage recreation use while protecting cultural resources, water quality, soils, vegetation, wildlife and fisheries habitats, riparian areas, and other environmental components.
Bureau of Land Management, Interior.
Availability of proposed planning criteria and notice of public meeting.
The U.S. Department of the Interior's Bureau of Land Management (BLM) provides formal notice that, pursuant to 43 CFR 1610.2(f)(2) and 1610.4-2, the proposed planning criteria related to the Hollister Resource Management Plan Amendment are available for public review and comment. Comments will be accepted until December 31, 2001. This notice also announces a public meeting to take public comment on the proposed planning criteria for the planning process, review the draft opportunity and constraints portion of the multi-jurisdictional land-use planning effort, and discuss the project description for the plan's environmental impact documentation process. The public meeting will be held on Saturday, November 17, 2001, in Santa Cruz, California.
Comments will be accepted until December 31, 2001, and the public meeting will be held November 17, 2001, 10 a.m. to 2 p.m., Santa Cruz, CA.
Comments on the proposed planning criteria should be sent to the Field Manager, USDI Bureau of Land Management, 20 Hamilton Court, Hollister, CA 95023, ATTN: Coast Dairies Planning Project.
Rick Hanks, 831-630-5036.
The BLM is participating in a multi-jurisdictional land-use planning effort with the California Department of Parks and Recreation (DPR) and the Trust for Public Land (TPL), a California non-profit public corporation. The planning effort is being conducted by the TPL for the Coast Dairies Property located in northern Santa Cruz County, California. As part of this planning effort, BLM is preparing an amendment to the Hollister Resource Management Plan (RMP). The RMP amendment will be conducted in order to assess the feasibility of transferring part or all of the property to BLM, or BLM and DPR, for joint management between BLM and DPR, and to include the implementation of the final planning decision, if appropriate, under the Hollister RMP. This planning effort will include the preparation of a companion environmental impact analysis.
BLM planning regulations 43 CFR 1610.2(f)(2) and 1610.4-2 require preparation of planning criteria to guide development of all resource management plans or revisions. Planning criteria are the ground rules that guide and direct the development of the plan. They determine how the planning team approaches the development of alternatives and ultimately, selection of a Preferred Alternative. Planning criteria are based on standards prescribed by applicable laws and regulations; agency guidance; the result of consultation and coordination with the public, other Federal, State and local agencies and governmental entities, and Indian tribes; analysis of information pertinent to the planning area; and professional judgment. After public input analysis, they become proposed criteria, and can be added to or changed as the issues are addressed or new information is presented.
• The Plan will establish guidance upon which the BLM will rely in managing the Coast Dairies Property cooperatively with the California Department of Parks and Recreation (DPR).
• The Plan will recognize the Coast Dairies Property as a unique natural and cultural landscape and coastline, and will give priority to actions that complement or enhance its natural and pastoral qualities.
• The planning process will encourage public participation and a collaborative process that strives to incorporate community, visitor, and other entities' needs and values while protecting the resources of the Coast Dairies Property.
• The Plan will be completed in compliance with Federal Land Policy and Management Act and all other applicable laws.
• The Plan will include an Environmental Impact Statement that will comply with National Environmental Policy Act standards and an Environmental Impact Report the will comply with the California Environmental Quality Act.
• The Plan will emphasize protection and enhancement of the biological and open space values afforded by the resources, the size, and the connectivity of the Coast Dairies Property while at the same time providing new and diverse recreational opportunities compatible with the management of existing uses and the protection of natural and cultural resources.
• Plan decisions will give priority to the protection and restoration of key resources such as stream, riparian, and watershed habitats and coastal prairies.
• The lifestyles and concerns of area residents will be recognized in the Plan.
• The Plan will recognize valid existing land use commitments within the Coast Dairies Property and review how valid existing uses are verified. The Plan may allow for other economic uses of the land, provided they are consistent with the overriding biological and open space conservation needs and objectives.
• Plan decisions will use the best available science and an adaptive management approach, i.e., continual monitoring of the Property's resources as the basis for decisions related to the land's uses.
• The planning process will protect Native American cultural resources and traditional uses.
• The Plan will address transportation and access, and will identify where better access is warranted, where access should remain as is, and where decreased access is appropriate to protect resources and manage visitation.
• Decisions in the plan will strive to be compatible with the existing plans and policies of adjacent local, State, and Federal agencies as long as the decisions are consistent with the purpose, policies, and programs of Federal laws and regulations applicable to public lands.
• The Plan will carry forward the concept of “seamless management” of the Coast Dairies Property between BLM, State Parks, TPL, and cooperating partners.
• The process will recognize that other Federal agencies, State and local governments have jurisdiction over resources and uses within the planning area (e. g. coastal zone), and will collaborate with these entities to develop complementary management decisions.
• The Plan will create valuable opportunities for education in the field of integrating traditional economic and recreational activities, including sustainable coastal agriculture, with programs designed to protect native biodiversity and other natural landscape values.
The planning criteria are developed under the major planning issues of which the plan is intended to resolve. In accordance with 43 CFR 1610.4-1, the BLM planning process is issue-driven and BLM regulations equate land use planning with problem solving and issue resolution. A
A number of issues have been raised about the long-term use and protection of Property. Preliminary planning issues and management concerns have surfaced during an initial series of facilitated meetings focused on issues and concerns related to the long-term management of the Coast Dairies Property.
We expect that the major BLM issues to be addressed in the Plan will be the following:
• How will the Coast Dairies' natural and cultural resources and unique landscape values be protected?
• How will the existing uses be managed on the Coast Dairies Property?
• How will new uses be managed on the Coast Dairies Property?
• What facilities and infrastructure are needed to provide visitor services and administration of the Coast Dairies Property?
• Does the Coast Dairies Property warrant any special designation(s)?
• How will the management of the Coast Dairies Property be integrated with State Parks and the various other partners and their plans and planning processes?
43 U.S.C. 1711-1712.
Bureau of Land Management, Bureau of Indian Affairs, Interior.
On February 22, 1945, the Secretary of the Interior issued an Order restoring to the Red Lake Band of Chippewa Indians of Minnesota (“Tribe”) certain lands that the Tribe had previously ceded to the United States for use by non-Indians. The lands restored to the Tribe by the 1945 Order are lands that were continuously held in trust by the United States since the cessions, that were never sold or otherwise disposed of, and for which the Tribe was never paid. This notice provides a partial list of the lands restored to the Tribe by the 1945 Order.
The Nelson Act of January 14, 1889, ch. 24, 25 Stat. 642, created and authorized a Federal commission to negotiate a cession of lands in northern Minnesota from the Red Lake Band of Chippewa Indians of Minnesota (“Tribe”) to the United States. By agreement dated July 8, 1889, 2.9 million acres of land known as “Royce 706” were ceded by the Tribe to the United States for the benefit of the Tribe. The Tribe retained a much smaller area known as “Royce 707.”
On March 10, 1902, another agreement was negotiated between the Tribe and the United States for the cession of an additional 256,152 acres of land in the western portion of Royce 707. This agreement was approved by Congress under the Act of February 20, 1904, ch. 161, 33 Stat. 46. The Tribe's present-day reservation is composed of land remaining after the 1889 and 1902 cessions. Consistent with the provisions of the Nelson Act, the lands the Tribe
The Indian Reorganization Act of 1934 (“IRA”), 25 U.S.C. 461
On February 22, 1945, exercising this authority granted by the IRA, the Secretary of the Interior issued an Order of Restoration (“1945 Order”) 10 FR 2448 (1945). The 1945 Order “Restored to tribal ownership all those lands of the Red Lake Indian Reservation which were ceded by the Indians under [the Nelson Act and the Act of February 20, 1904] and which were opened for sale or entry but for which the Indians have not been paid and which now are or hereafter may be classified as un-disposed of .” 10 FR at 2449. See also Act of December 4, 1942, ch. 673, 56 Stat. 1039 (“All right, title, and interest of the Minnesota Chippewa Tribe in and to the so-called Red Lake Indian ceded lands, including any administrative reserves, is hereby declared extinguished and title thereto vested in the Red Lake Band of Chippewa Indians.”).
On May 28, 1945, the Acting Commissioner of the General Land Office forwarded to the Commissioner of the Office of Indian Affairs a list of lands that satisfied the criteria of the 1945 Order and could be returned to the Band. On April 29, 1946, and January 9, 1947, amendments to the list of lands were made. The list of May 28, 1945, and the amendments of April 29, 1946, and January 9, 1947 (collectively, the “1945 List”) totaled approximately 157,499 acres of noncontiguous lands. The 1945 List was to have been published in the
From 1945 until 1988, the Department attempted to resolve many of the vexing title and legal description problems with the lands on the 1945 List. On December 22, 1988, the Acting State Director of the Eastern States Office, Bureau of Land Management (“BLM”), forwarded to the Bureau of Indian Affairs a comprehensive listing of lands totaling approximately 186,533 acres (“1988 List”) that the BLM had determined qualified for restoration to the Band under the 1945 Order. Many of the lands on the 1945 List were on the 1988 List. However, shortly after the 1988 List was completed, several additional title and legal description problems were discovered and the 1988 List was never published in the
In December 1997, the Department initiated a review of the lands on the 1945 and 1988 Lists. On February 2, 1999, the Department published in the
The Department has determined through a review of BLM records that the following lands that were ceded by the Tribe to the United States in 1889 and 1902, that were held in trust by the United States subject to sale for the benefit of the Tribe, and that were not disposed of by the United States, were restored to the Tribe by the 1945 Order. This list does not represent a final list of all those lands restored to tribal ownership under the 1945 Order. Descriptions of any additional lands that were restored by the 1945 Order may be published as they are confirmed.
Containing 34,578.58 acres.
Gayle F. Gordon, State Director, Eastern States Office, or Walt Rewinski, Deputy State Director, Resources Planning, Use and Protection, Eastern States Office, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153.
The plats of survey of the following described land will be officially filed in the Colorado State Office, Bureau of Land Management, Lakewood, Colorado, effective 10:00 am., September 28, 2001. All inquiries should be sent to the Colorado State Office, Bureau of Land Management, 2850 Youngfield Street, Lakewood, Colorado 80215-7093.
The plat (in three sheets) representing the dependent resurvey of a portion of the subdivisional lines, certain mineral claims, and the subdivision of sections 24 and 25, T 3 N., R. 73 W., Sixth Principal Meridian, Group 1299, Colorado, was accepted July 17, 2001.
The plat representing the dependent resurvey of a portion of the subdivisional lines, a corrective dependent resurvey of a portion of the subdivisional lines, and the subdivision of section 11, T. 8 S., R. 69 W., Sixth Principal Meridian, Group 1267, Colorado, was accepted August 13, 2001.
The plat representing the entire record of the dependent resurvey and metes-and-bounds survey in section 2, T. 5 N., R. 71 W., Sixth Principal Meridian, Group 1283, Colorado, was accepted September 27, 2001.
These surveys were requested by the Forest Service for administrative purposes.
The plat representing the dependent resurvey of a portion of the Eight Standard Parallel North (south boundary), portions of the north boundary, the subdivisional lines, and the subdivision of certain sections, T. 33 N., R. 4 W., New Mexico Principal Meridian, Group 1281, Colorado, was accepted September 13, 2001.
This survey was requested by the Bureau of Indian Affairs for administrative purposes.
The plat representing the entire record of the limited corrective dependent resurvey designed to reflect a new tie to a recently recovered 1919 court ordered survey, T. 1 N., R. 64 W., T. 1 N., R. 64 W., Sixth Principal Meridian, Group 629, Colorado, was accepted August 6, 2001.
The plat representing the dependent resurvey of a portion of the subdivisional lines, and the subdivision of sections 26 and 27, T. 13 S., R. 73 W., Sixth Principal Meridian, Group 1280, Colorado, was accepted August 6, 2001.
The plat representing the dependent resurvey of a portion of the subdivisional lines, and the subdivision of section 3, T. 40 N., R. 6 E., New Mexico Principal Meridian, Group 1284, Colorado, was accepted August 7, 2001.
The plat representing the dependent resurvey of a portion of the Tenth Standard Parallel North, a portion of the subdivisional lines, and the subdivision of section 34, T. 41 N., R. 6 E., New Mexico Principal Meridian, Group 1284, Colorado, was accepted August 7, 2001.
The plat representing the entire record of the corrective dependent resurvey of certain mineral surveys, T. 3 S., R. 72 W., Sixth Principal Meridian, Group 680, Colorado, was accepted August 13, 2001.
The plat representing the entire record of the retracement of certain mineral surveys, the informative traverse of the approximate centerline of Colorado State Highway No. 72, a.k.a. the Peak to Peak Highway, the survey of the boundary of new Lot 54, and a supplemental plat of lot 57, all in the SW1/4 of section 12, T. 1 N., R. 73 W., Sixth Principal Meridian, Group 875, Colorado, was accepted August 13, 2001.
The plat representing the corrective dependent resurvey of a portion of the subdivisional lines, T. 1 S., R. 73 W., Sixth Principal Meridian, Group 1298, Colorado, was accepted August 13, 2001.
The plat representing the limited corrective dependent resurvey of a portion of the subdivisional lines and a
The plat representing the dependent resurvey of portions of the east boundary, the subdivisional lines, a portion of Tract 65, and the subdivision of a portion of Tract 65, and a subdivision of sections 24 and 25, Fractional T. 48 N., R. 5 W., New Mexico Principal Meridian, Group 1243, was accepted September 13, 2001.
The supplemental plat creating new lots in the NW
The plat representing the dependent resurvey of portions of the south and east boundaries and the subdivisional lines, and the subdivision of certain sections in T. 2 S., R. 94 W., Sixth Principal Meridian, Colorado, Group 1244, was accepted September 27, 2001.
The plat representing the dependent resurvey of portions of the east boundary and the subdivisional lines, and the subdivision of certain sections in T. 3 S., R. 94 W., Sixth Principal Meridian, Colorado, Group 1244, was accepted September 27, 2001.
These surveys and supplemental plat were requested by the Bureau of Land Management for administrative purposes.
The plat of the dependent resurvey of a portion of the east boundary, a portion of the south boundary, a portion of the subdivisional lines, a portion of the adjusted record meanders of the left bank of the Illinois River and the survey of the Kampsville Lock and Dam acquisition boundary, in Township 10 North, Range 14 West of the 3rd Principal Meridian, Illinois will be officially filed in Eastern States, Springfield, Virginia at 7:30 a.m., on December 17, 2001.
The survey was requested by the U.S. Army Corps of Engineers.
All inquiries or protests concerning the technical aspects of the survey must be sent to the Chief Cadastral Surveyor, Eastern States, Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153, prior to 7:30 a.m., December 17, 2001.
Copies of the plat will be made available upon request and prepayment of the appropriate fee.
On the basis of the record
The Commission also determines, pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)), that an industry in the United States is materially injured by reason of imports from China, India, Indonesia, Kazakhstan, Netherlands, Romania, Taiwan, Thailand, and Ukraine of hot rolled steel products, provided for in the HTS subheadings listed above, that have been found by the Department of Commerce to be sold in the United States at less than fair value (LTFV).
The Commission instituted these investigations effective November 13, 2000, following receipt of a petition filed with the Commission and Commerce on behalf of Bethlehem Steel Corp.; Gallatin Steel Co.; IPSCO Steel, Inc.; LTV Steel Co., Inc., National Steel Corp.; Nucor Corp.; Steel Dynamics, Inc.; U.S. Steel Group of USX Corp.; Weirton Steel Corp; and the labor union representing the organized workers at Weirton Steel Corp. known as the Independent Steelworkers Union. The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of hot rolled steel products from China, India, Indonesia, Kazakhstan, the Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine were being subsidized and/or sold at LTFV within the meaning of sections 703(b) and 733(b) of the Act (19 U.S.C. 1671b(b) and 1673b(b)). Notice of the scheduling of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on November 13, 2001. The views of the Commission are contained in USITC Publication 3468 (November 2001),
By order of the Commission.
Notice is hereby given that on October 9, 2001, a proposed consent decree in
The consent decrees settles claims against management agents of several residential apartment buildings in Chicago, Illinois, which were brought on behalf of the Department of Housing and Urban Development and the Environmental Protection Agency under the Residential Lead-Based Paint Hazard Reduction Act 42 U.S.C. 4851
Under both consent decrees, defendants have agreed to provide the required notice and disclosures, to perform inspections at the buildings for the presence of lead-based paint, and to perform lead-based paint abatement. In addition, under each decree, each defendant will pay a penalty of $25,000 to be divided among the United States, the State of Illinois, Cook County, and the City of Chicago. Lastly, each of the consent decrees calls for the performance of Child Health Improvement Projects (“CHIPs”), which are projects proposed by HUD to address issues of childhood lead poisoning in Chicago. Wolin-Levin, Inc., will contribute $100,000 as a CHIP to the City of Chicago to be used for additional lead-based paint abatement activities in Chicago, primarily replacement of windows. East Lake Management and Development Corp. will contribute $77,000 as a CHIP to community-based health centers to perform blood lead level screening of children and create educational programs in low income areas in South Chicago and Cook County. The defendants manage over 225 buildings with over 10,000 residential units.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decrees. Comments should be addressed to the Assistant Attorney General of the Environment and Natural Resources Division, Department of Justice, Washington, DC 20530, and should refer to
The proposed consent decree may be examined at the Department of Housing and Urban Development, Office of Lead Hazard Control, attention: Matthew E. Ammon, 490 L'Enfant Plaza SW, Room 3206, Washington, DC 20410, (202) 755-1785; at the office of the United States Attorney for the Northern District of Illinois, 219 S. Dearborn Street, 5th Floor, Chicago, Illinois 60604, and at U.S. EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604. A copy of the proposed consent decree may also be obtained by mail from the Department of Justice Consent Decree Library, PO Box 7611, Washington, DC 20044. In requesting a copy please refer to the reference case and enclose a check in the amount of $12.25 (25 cents per page reproduction costs), payable to the Consent Decree Library, for the consent decree in
Under 28 CFR 50.7, notice is hereby given that on November 6, 2001, a proposed Settlement Agreement and Consent Decree (“Decree”) in
Pursuant to the proposed Decree, defendants Aztec Minerals Corporation, South Mountain Minerals Corporation, and Gray Eagle Mining Corporation will pay $192,943 to the United States and State of Colorado and transfer certain properties to the United States to resolve the claims of the governments.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to, United States and State of Colorado v. Robert Friedland, Civil No. 96-N-1213, and D.J. Ref. #90-11-3-1133B.
The Decree may be examined at the office of the U.S. Department of Justice, Environmental Enforcement Section, 999 18th Street, Suite 945, North Tower, Denver, Colorado; at U.S. EPA Region 8, Office of Regional Counsel, 999 18th Street, Suite 300, South Tower, Denver Colorado. A copy of the Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611. In requesting a copy, please enclose a check in the amount of $6.00 (25 cents per page reproduction cost) payable to the Consent Decree Library.
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that on October 12, 2001, the United States, on behalf of the United States Environmental Protection Agency (“EPA”) lodged with the United States District Court for the District of Nebraska a Consent Decree resolving the United States' claims against defendant the IBP, Inc. in this action. This Consent Decree, together with the Partial Consent Decree for Interim Injunctive Relief entered in 2000, will fully resolve the United States' Complaint filed on January 12, 2000 in the District of Nebraska, alleging violations by IBP, Inc. [sic] (“IBP”) of the Clean Air Act, 42 U.S.C. 7401
Under the Consent Decree, IBP will pay $4.1 million in civil penalties, and also will spend approximately $10 million in improvements to resolve its violations at the Dakota City facility and for additional projects to further reduce its discharge of pollutants to the air and water. Specifically, IBP has agreed to construct additional wastewater treatment systems at the complex to dramatically reduce its discharges of ammonia to the Missouri River. The systems to be installed by IBP exceed those required to meet the requirements of IBP's current discharge permit, issued in 1995, and are designed to allow the company to meet the anticipated stricter requirements of a new permit to be issued by EPA under the Clean Water Act. IBP further agrees not to contest EPA's authority to issue that permit. IBP also will expand a water treatment project designed to strip its incoming well water of sulfates and ordered under the prior Partial Consent Decree, thereby further reducing the plant's generation of hydrogen sulfide. The State of Nebraska is joining the case as a co-plaintiff on the CAA claims and will share $1.85 million of the penalty, which will be directed to the local school system.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice, Washington, DC 20530, and should refer to
The proposed Consent Decree may be examined at the Office of the United States Attorney, District of Nebraska, 1600 Dodge Street, Suite 1400, Omaha, Nebraska 68102-1506; the Region 7 Office of the Environmental Protection Agency, 901 N. 5th St., Kansas City, Kansas 66101. A copy of the proposed Consent Decree may be obtained by mail from the Consent Decree Library, PO Box 7611, United States Department of Justice, Washington, DC 20044-7611. In requesting a copy, please enclose a check in the amount of $26.50 (25 cents per page reproduction cost) payable to the Consent Decree Library.
Under 28 CFR 50.7, notice is hereby given that on October 16, 2001, a proposed consent decree in
In this action, the United States is seeking injunctive relief and response costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 and should refer to
The proposed consent decree may be examined at the Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19016, and at U.S. Environmental Protection Agency Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. A copy of the consent decree may also be obtained by mail from the Consent Decree Library, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611. In requesting a copy, please enclose a check in the amount of $23.00 (25 cents per page reproduction cost) payable to the U.S. Treasury.
In accordance with 28 CFR 50.7, notice is hereby given that on September 26, 2001, a Consent Decree was lodged with the United States District Court for the District of Massachusetts in
The Department of Justice will receive comments relating to the proposed Consent Decree for a period of thirty (30) days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, PO Box 7611, Washington, DC 20044, and should refer to
The proposed consent decree may be examined at the office of the United States Attorney, Suite 310, 1550 Main Street, Springfield, Massachusetts, and at the Region I office of the Environmental Protection Agency, One Congress Street, Suite 1100, Boston, Massachusetts 02114. A copy of the proposed consent decree may also be obtained by mail from the Department of Justice Consent Decree Library, PO Box 7611, Washington, DC 20044. In requesting a copy, please enclose a check (there is a 25 cent per page reproduction cost) in the amount of $7.75 payable to the “Consent Decree Library.”
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that a proposed consent decree in
The proposed partial consent decree pertains to the NCR Superfund Site (“Site”), located near Millsboro, Delaware. The United States has sued two defendants pursuant to section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9607, to recover past and interim response costs incurred at the Site. The two defendants have agreed to a settlement memorialized in the consent decree. In the settlement, the defendants agree to pay $769,000 for reimbursement of past response costs and $29,500 for interim response costs expended by the Environmental Protection Agency in its oversight of the cleanup at the Site. In addition, the defendants agree to reimburse $3,769.99 to the state environmental agency Delaware Department of Natural Resources and Environmental Control (“DNREC”).
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice, Washington, DC 20530, and should refer to
The proposed consent decree may be examined at the office of the United States Attorney, District of Delaware, 1201 N. Market Street, Wilmington, DE; the Region III Office of the Environmental Protection Agency, 1650 Arch St., Philadelphia, PA 19103. A copy of the proposed consent decree may be obtained by mail from the Consent Decree Library, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611. In requesting a copy, please enclose a check in the amount of $5.75 (25 cents per page reproduction cost) payable to the Consent Decree Library.
Notice is hereby given that on October 4, 2001, a proposed consent decree in
The consent decree settles claims against management agents and owners of several residential apartment buildings in Chicago, Illinois, which were brought on behalf of the Department of Housing and Urban Development and the Environmental Protection Agency under the Residential Lead-Based Paint Hazard Reduction Act 42 U.S.C. § 4851
Under the consent decree, defendants have agreed to provide the required notice and disclosures, to perform inspections at the buildings for the presence of lead-based paint, to perform lead-based paint abatement, and to pay the United States and the State of Illinois administrative penalties in the amount of $40,000. The defendants manage and/or own 25 buildings with over 650 residential units.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decrees. Comments should be addressed to the Assistant Attorney General of the Environmental and Natural Resources Division, Department of Justice, Washington, DC 20530, and should refer to
The proposed consent decree may be examined at the Department of Housing and Urban Development, Office of Lead Hazard Control, attention: Matthew E. Ammon, 490 L'Enfant Plaza SW., Room 3206, Washington, DC 20410, (202) 755-1785; at the office of the United States Attorney for the Northern District of Illinois, 219 S. Dearborn Street, 5th Floor, Chicago, Illinois 60604, and at U.S. EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604. A copy of the proposed consent decree may also be obtained by mail from the Department of Justice Consent Decree Library, PO Box 7611, Washington, DC 20044. In requesting a copy please refer to the referenced case and enclose a check in the amount of $12.50 (25 cents per page reproduction costs), payable to the Consent Decree Library.
Notice of information collection under review; contacts concerning INS practitioner fraud pilot program.
The Department of Justice, Immigration and Naturalization Service has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until January 14, 2002.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan 202-514-3291, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, U.S. Department of Justice, Room 4034, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, 601 D Street, NW., Patrick Henry Building, Suite 1600, Washington, DC 20530.
Notice of information collection under review: Biological Information/Program Eligibility Questionnaire and Practitioner Fraud Pilot Program Initial Interview Form.
The Department of Justice, Immigration and Naturalization Service (INS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 17, 2001. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, 725—17th Street, NW., Room 10235, Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points.
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan 202-514-3291, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, U.S. Department of Justice, Room 4034, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Patrick Henry Building 601 D Street, NW., Suite 1600, Washington, DC 20004.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the following three information collections: (1) Comparability of Current Work to Coal Mine Employment (CM-913), Coal Mine Employment Affidavit (CM-918), Affidavit of Deceased Miner's Condition (CM-1093); (2) LS-265, Certification of Funeral Expenses; and (3) WH-530, Application for Farm Labor Contractor and Farm Labor Contractor Employee Certificate of Registration.
Written comments must be submitted to the office listed in the addressee section below within January 14, 2002.
Ms. Patricia A. Forkel, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0339 (this is not a toll-free number), fax (202) 693-1451, EMail
The Black Lung Benefits Act of 1977, as amended, 30 U.S.C. 901
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks the approval of the extension of this information collection in order to carry out its responsibility to determine eligibility for black lung benefits.
LS-265—Certification of Funeral Expenses
The Office of Workers' Compensation Programs administers the Longshore and Harbor Workers' Compensation Act. The Act provides benefits to workers injured in maritime employment on the navigable waters of the United States or in an adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel. The Act provides that reasonable funeral expenses not to exceed $3,000 shall be paid in all compensable death cases. The LS-265 has been provided for use in submitting the funeral expenses for payment.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks the approval of the extension of this information collection in order to carry out its responsibility to certify the amount of funeral expenses incurred in the case.
WH-530—Application for Farm Labor Contractor and Farm Labor Contractor Employee Certificate of Registration
Section 101(a) of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides that no person shall engage in any farm labor contracting activity unless such person has a certificate of registration from the Secretary of Labor specifying which farm labor contracting activities such person is authorized to perform. Further, section 101(b) of MSPA provides that a farm labor contractor shall not hire, employ, or use any individual to perform farm labor contracting activities unless such individual has a certificate of registration as a farm labor contractor.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks the approval of the extension of this information collection in order to carry out its responsibility to issue, after appropriate investigation and review, a farm labor certificate of registration, including a certificate of registration as an employee of a farm labor contractor, to any person who has filed with the Secretary a written application for a certificate.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
Pursuant to the Government in the Sunshine Act (5 U.S.C. 552(b)), notice is hereby given that the Merit Systems Protection Board is holding a closed meeting on November 14, 2001, at 2 p.m., in the Board's conference room at 1615 M Street, NW., 6th Floor, Washington, DC 20419. In calling the meeting, the Board determined that Board business required its consideration of the agenda item on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matter could be considered by authority of subsections (c)(10) and (c)(2) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(10) and 5 U.S.C.b(c)(2).
Matter to Be Considered:
Briefing of the Board members on issues in the matter of
Shannon McCarthy or Matthew Shannon, Office of the Clerk of the Board, (202) 653-7200.
National Council on Disability (NCD).
This notice sets forth the schedule of the forthcoming meeting/teleconference for NCD's Youth Advisory Committee. Notice of this meeting is required under Section 10(a)(1)(2) of the Federal Advisory Committee Act (Pub. L. 92-463).
This committee is necessary to provide advice and recommendations to NCD on disability issues.
We currently have a membership reflecting our nation's's diversity and representing a variety of disabling conditions from across the United States.
Records will be kept of all Youth Advisory Committee meetings/teleconferences and will be available after the meeting for public inspection of the National Council on Disability.
In a letter dated September 25, 2000, Waste Control Specialists, LLC (WCS) requested an exemption for certain U.S. Nuclear Regulatory Commission (NRC) regulations relative to the possession of special nuclear material (SNM). A license pursuant to 10 CFR part 70 issued by NRC is required for quantities of SNM in excess of the limits in 10 CFR 150.11. WCS is requesting an exemption from licensing under part 70 for possession of greater than the part 150 SNM limits. NRC issued a similar exemption to Envirocare of Utah, Inc. in May 1999.
WCS operates a low level waste (LLW) and mixed waste (MW) storage and treatment facility in Andrews County, Texas. The facility also disposes of hazardous waste. Texas is an NRC Agreement State. This facility is licensed by the State of Texas Department of Health (TDH) under a 10 CFR Part 30 equivalent radioactive materials license (RML). The facility is also licensed by the Texas Natural Resource Conservation Commission (TNRCC) to treat and dispose of hazardous waste. In 1997, WCS began accepting Resource Conservation and Recovery Act (RCRA) and Toxic Substance Control Act (TSCA) wastes for treatment, storage, and disposal. Later that year, WCS received a license from TDH for treatment and storage of MW and LLW. The MW and LLW streams may contain quantities of SNM.
WCS receives wastes by rail and truck. All of the waste received by truck and some of the waste received by rail are in containers. These containers vary in size from 55-gallon drums to 70 cubic yard intermodal containers. Bulk waste received by rail is placed in large (90 cubic yard) roll-off containers. Separate storage and treatment facilities exist for the RCRA and TSCA waste and the MW and LLW. Storage of the MW and LLW occurs in two buildings and an adjacent outside area. WCS treats mixed waste using several technologies including (1) chemical stabilization, (2) shredding, (3) deactivation, (4) neutralization, and (5) macro encapsulation with cement. WCS is also permitted by TDH to perform compaction using a Ramflat compactor. WCS is also considering adding a solvated electron technology (SET) system and macro encapsulation using low density polyethylene. The SET is authorized in the TDH license for pilot testing. The applicable hazardous waste regulations require bench scale treatability studies prior to treating the bulk of the waste.
Pursuant to 10 CFR 70.14, “the Commission may * * * grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and
Section 70.3 of 10 CFR part 70 requires persons who own, acquire, deliver, receive, possess, use, or transfer SNM to obtain a license pursuant to the requirements in 10 CFR part 70. Section 10 CFR 150.10 exempts persons in Agreement States, who possess SNM in quantities not sufficient to form a critical mass, from Commission imposed licensing requirements and regulations. The method for calculating a quantity of SNM not sufficient to form a critical mass is set forth in 10 CFR 150.11. Therefore, WCS is currently limited by NRC regulation to possess SNM in quantities set out in 10 CFR 150.10 and 150.11. The State of Texas has a similar possession limit in the license it issued to WCS. WCS requested the exemption because it expects that the current limits set forth in 10 CFR part 150 will severely impact its ability to compete in the mixed waste treatment market. The exemption proposed to apply concentration-based limits rather than mass-based limits.
The staff believes that the appropriate action is to issue WCS an exemption. Specifically, WCS would be exempted from the requirements of 10 CFR part 70, including the requirements for an NRC license in 10 CFR 70.3, for SNM within the restricted area at WCS's site, provided that:
1. Concentrations of SNM in individual waste containers and/or during processing must not exceed the following values:
When mixtures of these SNM isotopes are present in the waste, the sum-of-the-fractions rule, as illustrated below, should be used.
The measurement uncertainty values in column 3 above represent the maximum one-sigma uncertainty associated with the measurement of the concentration of the particular radionuclide.
The SNM must be homogeneously distributed throughout the waste. If the SNM is not homogeneously distributed, then the limiting concentrations must not be exceeded on average in any contiguous mass of 600 kilograms.
2. Waste must not contain “pure forms” of chemicals containing carbon, fluorine, magnesium, or bismuth in bulk quantities (e.g., a pallet of drums, a B-25 box). By “pure forms,” it is meant that mixtures of the above elements such as magnesium oxide, magnesium carbonate, magnesium fluoride, bismuth oxide, etc. do not contain other elements. The presence of the above materials will be determined and documented by the generator, based on process knowledge or testing.
3. Waste accepted must not contain total quantities of beryllium, hydrogenous material enriched in deuterium, or graphite above one tenth of one percent of the total weight of the waste. The presence of the above materials will be determined and documented by the generator, based on process knowledge, or testing.
4. Waste packages must not contain highly water soluble forms of SNM greater than 350 grams of U-235 or 200 grams of U-233 or 200 grams of Pu. The sum of the fractions rule will apply for mixtures of U-233, U-235, and Pu. When multiple containers are processed in a larger container, the total quantity of soluble SNM shall not exceed these mass limits. Highly soluble forms of SNM include, but are not limited to: uranium sulfate, uranyl acetate, uranyl chloride, uranyl formate, uranyl fluoride, uranyl nitrate, uranyl potassium carbonate, uranyl sulfate, plutonium chloride, plutonium fluoride, and plutonium nitrate. The presence of the above materials will be determined and documented by the generator, based on process knowledge or testing.
5. Processing of mixed waste containing SNM will be limited to chemical stabilization using the following chemicals: ferrous sulfate, ferrous sulfide, portland cement, sodium hypochlorite, sodium tripoly-phosphate, Metaplex II (attapulgite-type clay), hexaderyl mescaptan, lime, sodium hydroxide, Metaplex III, hydrogen peroxide, sodium metabisulfate, sodium sulfide, and sodium hydrosulfide.
Prior to shipment of waste, WCS shall require generators to provide a written certification containing the following information for each waste stream:
a.
b.
c.
d.
WCS shall review the above information and, if adequate, approve in writing this pre-shipment waste characterization and assurance plan before permitting the shipment of a waste stream. This will include statements that WCS has a written copy of all the information required above, that the characterization information is adequate and consistent with the waste description, and that the information is sufficient to demonstrate compliance with Conditions 1 through 4. Where generator process knowledge is used to demonstrate compliance with Conditions 1, 2, 3, or 4, WCS shall review this information and determine when testing is required to provide additional information in assuring compliance with the Conditions. WCS shall retain this information as required by the State of Texas to permit independent review.
At the time waste is received, WCS shall require generators of SNM waste to provide a written certification with each waste manifest that states that the SNM concentrations reported on the manifest do not exceed the limits in Condition 1, that the measurement uncertainty does not exceed the uncertainty value in Condition 1, and that the waste meets Conditions 2 through 4.
WCS shall require generators to sample and determine the SNM concentration for each waste stream at the following frequency: (a) If the concentrations are above one tenth the SNM limits (Condition 1), once per 600 kg, (b) if the concentrations are below one tenth and greater than one hundredth of the SNM limits, once per 6,000 kg, and (c) if the concentrations are below one hundredth of the SNM limits, once per 60,000 kg.
If the waste is determined to be not homogeneous (i.e., maximum, which cannot exceed the limits in Condition 1, and minimum testing values performed by the generator are greater than five times the average value), the generator shall sample and determine the SNM concentration once per 600 kg thereafter, regardless of SNM concentration. In this case, samples shall be a composite consisting of four uniformly sampled aliquots.
The certifications required under these conditions shall be made in writing and include the statement that the signer of the certification understands that this information is required to meet the requirements of the U.S. Nuclear Regulatory Commission and must be complete and accurate in all material respects.
7. WCS shall sample and determine the SNM concentration for each waste stream at the following frequency: (a) If the concentrations are above one tenth the SNM limits (Condition 1), once per 1,500 kg for the first shipment and every 6,000 kg thereafter, (b) if the concentrations are below one tenth and greater than one hundredth of the SNM limits, once per 20,000 kg for the first shipment and every 60,000 kg thereafter, and (c) if the concentrations are below one hundredth of the SNM limits, once per 600,000 kg. This confirmatory testing is not required for waste to be disposed of at DOE's WIPP facility.
If the waste is determined to be not homogeneous (i.e., maximum and minimum testing values performed by the generator are greater than five times the average value), WCS shall sample and determine the SNM concentration once per 1,500 kg for the first shipment and every 6,000 kg thereafter, regardless of SNM concentration. In this case, samples shall be a composite consisting of four uniformly sampled aliquots.
8. WCS shall notify the NRC, Region IV office within 24 hours if any of the above Conditions are violated. A written notification of the event must be provided within 7 days.
9. WCS shall obtain NRC approval prior to changing any activities associated with the above Conditions.
The licensing requirements in 10 CFR part 70 apply to persons possessing greater than critical mass quantities (as defined in 10 CFR 150.11). The principal emphasis of part 70 is criticality safety and safeguarding SNM against diversion or sabotage. Staff considers that criticality safety can be maintained by relying on concentration limits, under the conditions specified above. Safeguarding SNM against diversion or sabotage is not considered a significant issue because of the diffuse form of the SNM in waste meeting the above conditions. These concentration limits are considered an alternative definition of quantities not sufficient to form a critical mass to the weight limits in 10 CFR 150.11, thereby assuring the same level of protection.
The Commission concludes that this proposed exemption will have no significant radiological or nonradiological environmental impacts. Accordingly, the Commission has determined, pursuant to 10 CFR 70.14, that the exemption of above activities at the WCS facility is authorized by law, will not endanger life or property or the common defense and security and is otherwise in the public interest. Accordingly, by this Order, the Commission hereby grants this exemption subject to the above conditions. The exemption will become effective after the State of Texas has incorporated the above conditions into WCS's RML.
Pursuant to the requirements in 10 CFR part 51, the Commission has published an EA for the proposed action wherein it has determined that the granting of this exemption will have no significant impacts on the quality of the human environment. Copies of the EA and SER are available for public inspection at the Commission's Public Document Room, located at One White Flint North, Room 0-1F21, 11555 Rockville Pike, Rockville, MD 20852.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Thermal-Hydraulic Phenomena will hold a meeting on November 28, 2001, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
Portions of the meeting may be closed to public attendance to discuss Electric Power Research Institute proprietary information per 5 U.S.C. 552b(c)(4).
The agenda for the subject meeting shall be as follows:
The Subcommittee will: (1) Continue review of the NRC Office of Nuclear Regulatory Research activities pertaining to thermal-hydraulic phenomena in support of the ACRS annual report to the Commission on the NRC Safety Research Program, and (2) discuss a proposal by the licensees of the Point Beach and Beaver Valley plants to perform more-realistic analysis for containment design-basis accidents using the MAAP code. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Oral statements may be presented by members of the public with the
During the initial portion of the meeting, the Subcommittee, along with any of its consultants who may be present, may exchange preliminary views regarding matters to be considered during the balance of the meeting.
The Subcommittee will then hear presentations by and hold discussions with representatives of the NRC staff, Fauske and Associates, Inc., and other interested persons regarding this review.
Further information regarding topics to be discussed, the scheduling of sessions open to the public, whether the meeting has been canceled or rescheduled, and the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefor, can be obtained by contacting the cognizant ACRS staff engineer, Mr. Paul A. Boehnert (telephone 301-415-8065) between 7:30 a.m. and 5 p.m. (EST). Persons planning to attend this meeting are urged to contact the above named individual one or two working days prior to the meeting to be advised of any potential changes to the agenda, etc., that may have occurred.
Pension Benefit Guaranty Corporation.
Notice of interest rates and assumptions.
This notice informs the public of the interest rates and assumptions to be used under certain Pension Benefit Guaranty Corporation regulations. These rates and assumptions are published elsewhere (or are derivable from rates published elsewhere), but are collected and published in this notice for the convenience of the public. Interest rates are also published on the PBGC's web site (
The required interest rate for determining the variable-rate premium under part 4006 applies to premium payment years beginning in November 2001. The interest assumptions for performing multiemployer plan valuations following mass withdrawal under part 4281 apply to valuation dates occurring in December 2001.
Harold J. Ashner, Assistant General Counsel, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
Section 4006(a)(3)(E)(iii)(II) of the Employee Retirement Income Security Act of 1974 (ERISA) and § 4006.4(b)(1) of the PBGC's regulation on Premium Rates (29 CFR part 4006) prescribe use of an assumed interest rate (the “required interest rate”) in determining a single-employer plan's variable-rate premium. The required interest rate is the “applicable percentage” (currently 85 percent) of the annual yield on 30-year Treasury securities for the month preceding the beginning of the plan year for which premiums are being paid (the “premium payment year”). The yield figure is reported in Federal Reserve Statistical Releases G.13 and H.15.
The required interest rate to be used in determining variable-rate premiums for premium payment years beginning in November 2001 is 4.52 percent (i.e., 85 percent of the 5.32 percent yield figure for October 2001).
The following table lists the required interest rates to be used in determining variable-rate premiums for premium payment years beginning between December 2000 and November 2001.
The PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281) prescribes the use of interest assumptions under the PBGC's regulation on Allocation of Assets in Single-employer Plans (29 CFR part 4044). The interest assumptions applicable to valuation dates in December 2001 under part 4044 are contained in an amendment to part 4044 published elsewhere in today's
Postal Service.
Notice of final plan.
The Postal Service has already completed the first phase of a plan to remove insecure postage meters from use with the decertification of mechanical postage meters. The second phase of the plan, the retirement of manually reset electronic meters, is now underway in accordance with the notice published in the
This plan is effective November 15, 2001.
Wayne Wilkerson by fax at (703) 292-4073.
In 1995, the Postal Service, in cooperation with all authorized postage meter manufacturers, began a phaseout of all mechanical postage meters because of identified cases of indiscernible tampering and misuse. Postal Service revenues were proven to be at serious risk. The completion of this effort, which resulted in the withdrawal of 776,000 mechanical meters from service, completed phase I of the Plan for Secure Postage Meter Technology. Phase II of the plan, the retirement of electronic meters that are manually set by Postal Service employees, is now being implemented. Phases III and IV of the plan are described in the current notice.
The proposed plan for phases III and IV, describing the retirement of meters with nondigital or letterpress indicia, was published for comment in the
The Postal Service gave thorough consideration to the comments, modified the proposed plan as appropriate, and now announces the adoption of the final plan. It is the Postal Service's intent to make this an orderly process that minimizes impacts on meter users and the meter manufacturers. Publication of the final plan for phases III and IV gives both postage meter manufacturers and postage meter users ample time to make timely and intelligent decisions on the selection of postage meters and associated mailing equipment.
The Postal Service's evaluation of the comments follows. The final plan, as revised, follows the discussion of comments. The comments are organized to reflect common topics addressed by the commenters.
Manufacturers questioned the timetable for withdrawal of letterpress meters, suggested various alternatives, and requested a “date certain” by which meters already placed with customers must be removed from service.
The Postal Service reviewed the various suggestions and revised the withdrawal timetable to ensure that all users will have appropriate technology available to meet their mail processing needs. The plan adds dates for customer notification to ensure ample time for customers to make timely and intelligent decisions on replacement meters and adds a date by which meters already placed with customers must be removed from service.
Meter manufacturers and the mailing industry association expressed concern that the early retirement of meters using letterpress technology would prevent them from receiving adequate return on their investments. The comments noted that the proposal must be sensitive to the requirements of users of high-volume/high-speed meters and the unique relationship these mailers have with the Postal Service, since these users tend to make longer-term determinations regarding postage and metering technology needs.
The retirement plan schedule gives customers 5 years from the date of notification to the date that nonenhanced, letterpress (phase III) meters already placed must be removed from service. Any newly placed phase III meter placed in accordance with the schedule may remain in service for at least 4 years before it must be removed. Users of enhanced letterpress (phase IV) meters have 5
One industry association asked for information to support the Postal Service claim of increased security benefits from postage meters that have a timeout feature and use digital indicia, and for information on the actual risk to Postal Service revenue from meters that print indicia using letterpress technology, with or without a timeout feature.
The presence of a feature that disables letterpress meter operations when certain preprogrammed criteria are met increases its security but does not compensate for the insecurity inherent in letterpress technology. The printing die used for letterpress indicia is open to tampering in ways that the process used to print digital indicia is not. Digital printing technology also enables the printing of unique indicia, which permits the Postal Service to establish enhanced processes to identify counterfeit indicia.
One postage meter manufacturer was concerned about inadequate, misleading, or confusing communications to meter users, and suggested that phases III and IV be combined to avoid possible confusion that might arise from having multiple retirement dates.
The retirement schedule for phase III meters will differ from that for phase IV meters. The Postal Service is working to ensure the integrity of the meter retirement process with expeditious, accurate, and informative communications to postage meter users, Postal Service employees, and postage meter manufacturers, and it expects manufacturers to provide accurate, clear, and timely information to their customers.
One manufacturer suggested that the plan be sensitive to the needs of those mailers with multiple meters with different lease expiration dates.
The plan provides for one date by which all nonenhanced letterpress meters must be withdrawn from service, and one date by which all enhanced letterpress meters must be withdrawn from service.
One industry association expressed concern with the increased cost of printing digital postage indicia compared with the cost of preparing mail using letterpress metering technology, as well as increased equipment costs, especially the need for new mailing equipment if the new digital meter is incompatible with the mailer's existing mailing equipment.
The Postal Service recognizes that there may be a slight increase in cost initially but believes this increase in cost will diminish as competition increases. Any additional costs for users are determined on a manufacturer-by-manufacturer basis and not by the Postal Service. Customers have choices in a competitive meter marketplace if they are not satisfied with the costs of a given manufacturer's technology. Individual
Some meter manufacturers questioned whether specific meter models would be classified as nonenhanced (phase III) or enhanced (phase IV) based on the presence of a feature that disables meter operations when certain preprogrammed criteria are met.
These issues involve company proprietary information. The Postal Service responded directly to the manufacturers concerned.
One manufacturer asked about the enforcement of the retirement plan for letterpress meters.
After the date by which a meter must be withdrawn from service, the Postal Service, in coordination with the meter manufacturers, will prevent postage resets, and manufacturers will be required to take possession of the meter.
Phases III and IV of the Postal Service proposed Plan for Secure Postage Meter Technology affect nondigital, or letterpress, meters that are remotely reset under the Computerized Meter Resetting System (CMRS). If such a meter has a feature that automatically disables the meter if it is not reset within a specified time period or when certain preprogrammed criteria are met, it is called an enhanced meter. Phase III of the proposed plan requires that the users of nonenhanced CMRS letterpress meters are notified of the schedule for the retirement of their meters by December 31, 2001. The placement of nonenhanced CMRS letterpress meters must cease by December 31, 2002, and these meters must be off the market by December 31, 2006. Phase IV of the proposed plan requires that the customers of enhanced CMRS letterpress meters are notified of the schedule for the retirement of their meters by June 30, 2003. The placement of enhanced CMRS letterpress meters must cease by June 30, 2004, and these meters must be off the market by December 31, 2008.
Postal Service.
Advance notice of amendment to an existing system of records.
The Postal Service proposes to amend Postal Service Privacy Act System of Records 120.090, Personnel Records—Medical Records. The proposed amendments reflect the collection, maintenance, and storage of candidate medical assessment records for Postal Service employment. The system is a Web-based application with a secure user-friendly interface that allows nontechnical medical staff to collect, maintain, and store post-offer candidate medical assessment records. The system will ensure Human Resources staff has ready access to ability-to-work information about these candidates. This notice amends the system location, categories of individuals covered by the system, categories of records in the system, storage, retrievability, safeguards, and retention and disposal sections to reflect the new process for collection, maintenance, and storage of medical assessment records. Other minor changes are included to bring the notice into conformity with current practices.
This proposal will become effective without further notice on December 17, 2001, unless comments received on or before that date result in a contrary determination.
Mail or deliver written comments to the Records Office, U.S. Postal Service, Room 5821, 475 L'Enfant Plaza, SW., Washington, DC 20260-5202. You can view or make copies of all written comments between 8 a.m. and 4 p.m., Monday through Friday, at the same address.
Susie Travers, Records Office, 202-268-3362.
The electronic Medical Assessment Program (eMAP) is a Web-based application that streamlines the manual process of collecting, analyzing, maintaining, and storing medical data on candidates who have been offered employment with the Postal Service.
Authorized Human Resources personnel with the appropriate access authorization will use the eMAP application to enter the candidate information into the centralized eMAP database, creating a candidate record. Authorized Human Resources personnel will then contact the candidate to schedule the assessment at an authorized Medical Assessment Program (MAP) site. Authorized medical personnel at MAP sites will use the eMAP application to display a list of candidates required to appear at the assigned MAP site office for a medical assessment. When the candidate appears at the MAP site office, the candidate's identity will be verified and he or she will be given the Medical History Questionnaire and answer sheet for completion. The answer sheet will be an optical mark recognition (OMR) form that the candidate can easily use to indicate his or her responses to the questionnaire by shading in the appropriate oval on the form. When the candidate completes the questionnaire, the authorized MAP site medical personnel will scan the form using an OMR scanner. The candidate's responses will be recorded automatically by the eMAP application, and the results will be immediately displayed to the authorized MAP site medical personnel for verification of a successful scan. The results from a successful scan will be stored in a permanent centralized eMAP database that will use a unique encrypted code for candidate identification. The eMAP application will generate and record timestamp information as the candidate proceeds through the medical assessment process and will produce printed letters as needed. Authorized eMAP users will be able to generate standard, predefined printed reports at the MAP site, district, area, and national levels. Authorized application users will be allowed to easily add, annotate, or inactivate candidate assessment records. Candidate inactivated records will remain in the database. A copy of each candidate's medical information will be printed and retained in the medical office. Candidate medical information includes the medical history questionnaire; answer sheet containing the candidate's responses; copy of job application, job description and functional requirements; and supporting medical information acquired in the process of reaching a medical determination of ability to work. If the candidate is hired, the candidate's medical information is retained in the employee medical file (EMF).
Candidate and response data obtained from sites currently using the existing Medical History Questionnaire with the stand-alone application (MAQ or MAP version 1) will be imported into the eMAP database, one time only, using a utility that automates the process with minimal user interaction. After the
The proposed amendments are not expected to diminish individual privacy rights. Only authorized users who have an official need-to-know in the performance of their job functions will be allowed access to the application or will have the ability to review the medical information. Access to computer data will be restricted through the use of computer password security and data encryption. Printed copies of questionnaires and medical information will be stored in locked file cabinets with restricted access.
Pursuant to 5 U.S.C. 552a(e)11, interested persons are invited to submit written data, views, or arguments on this proposal. A report of the amendments has been sent to the Congress and to the Office of Management and Budget for their evaluation. It is proposed that the system description be amended as follows:
Personnel Records—Medical Records, 120.090.
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Postal Service medical facilities and designee offices, Postal Service Corporate Health and Fitness Center (L'Enfant Plaza location only), and Postal Service personnel offices (rosters of examinees scheduled for medical assessment only).
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Present and former Postal Service employees and individuals who have been offered employment but failed the medical examination before being placed on the rolls, or who declined the offer; and any Headquarters employees who participate in the Corporate Health and Fitness Program.
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Name, address, job title, Social Security number, installation, illness, supervisor's and physician's reports (on Authorizations for Medical Attention); relevant medical history and medical assessments including physical examinations, treatment received at the health unit, occupational injuries or illnesses, substance abuse information, findings, diagnosis and treatment, doctors' statements and recommendations, records of immunizations, and medical findings related to employee's exposure to toxic substances. In addition, Headquarters employees who participate in the Corporate Health and Fitness Program will voluntarily provide data about their lifestyle, exercise schedule, smoking habits, knowledge about personal health, personal and family medical history, nutrition, stress levels, and other data relevant to making a health risk appraisal. Records of participant employees' individualized schedules and progress may be kept.
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Preprinted forms, paper files (Official Medical Folders), and magnetic tapes or disks (candidate medical assessments); preprinted forms, paper files, and hard copy computer storage (Corporate Health and Fitness Center records) are stored in limited access areas with appropriate physical and environmental controls to ensure the confidentiality and physical integrity of the information.
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Employee name, Social Security number, and location.
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Printed copies of medical records are kept in locked file cabinets with controlled physical access, restricted to individuals who need to know the information in performance of their job functions. Access to computer data is restricted to authorized personnel with a need to know the information in the performance of their job functions and is protected through computer password controls and data encryption. Access to automated Corporate Health and Fitness Center records is restricted by password protection to medical screening personnel and health and fitness specialists under contract to operate the Corporate Health and Fitness Program facility at Headquarters.
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a. Employee Medical Folder (EMF)—Medical records considered permanent are maintained until the employee is separated from the Postal Service, and then the records are sent to the National Personnel Records Center for storage or to the federal agency that now employs the individual. The records are kept for 30 years from the date the employee separates from federal service. Security and privacy of the EMF is safeguarded by the processes and procedures described in Postal Service Management Instruction EL-860-98-2, Employee Medical Records. Computer data is archived from the active database to a history database after 3 years and retained in the history database indefinitely.
b. Candidate medical information of failed eligibles (and those who cleared but ultimately declined the offer)—Candidate medical information, which includes the medical history questionnaire, answer sheet containing the candidate's responses, copy of job application, job description and functional requirements, and supporting medical information acquired in the process of reaching a medical determination of ability to work is retained in the medical office and destroyed by shredding after 2 years. Computer data are archived from the active database to a history database after 3 years and retained in the history database indefinitely.
c. Authorization for Medical Attention (Form 3956)—The form is destroyed after 2 years.
d. Corporate Health and Fitness Center records—The record is retained by the contractor operating the Health and Fitness Center until termination of the contract, at which time the record must be returned to the Postal Service.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Amex proposes to increase to 250 contracts the maximum permissible number of equity and index option contracts in an order executable through its automatic execution system, AUTO-EX. The text of the proposed rule change is available at the Office of the Secretary, Amex and at the Commission.
In its filing the Commission, the Amex 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 Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In 1985, the Exchange implemented the AUTO-EX system, which automatically executes public customer market and marketable limit orders in options at the best bid or offer displayed at the time the order is entered into the Amex Order File (“AOF”). There are, however, limitations on the number of option contracts that can be entered into or executed by these systems. AOF, which handles limit orders routed to the specialist's book as well as orders routed to AUTO-EX, was recently increased to allow for the entry of orders of up to 2500 option contracts.
The Exchange now proposes to increase to 250 contracts the maximum permissible number of equity and index options contracts in an order that can be executed through the AUTO-EX system. It is proposed that this increase to 250 contracts in permissible order size for AUTO-EX be implemented on a case-by-case basis for an individual option class or for all option classes when two floor governors or senior floor officials deem such an increase appropriate. Currently, the Amex posts applicable quote size parameters on its web page. The Exchange represents that it has sufficient systems capacity necessary to accommodate implementation of the proposed increased.
The Exchange represents that AUTO-EX has been extremely successful in enhancing execution and operational efficiencies during emergency situations and during other, non-emergency situations for certain option class. The Exchange believes that automatic executions of orders for up to 250 contracts will allow for the quick, efficient execution of public customer orders.
The proposed rule change is consistent with section 6(b)
The Amex 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.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
The Commission invites interested persons 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 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 Amex. All submissions should refer to File No. SR-Amex-2001-94 and should be submitted by December 6, 2001.
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 NASD filed a proposed rule change to amend Rule 4710 to state that if an exchange that trades Nasdaq securities pursuant to unlisted trading privileges (“UTP exchange” elects not to participate in SuperSOES, SuperSOES will not include the UTP exchange's quoation for order processing and execution and purposes. The text oif the proposed rule change is available from the NASD and from the Commission.
In its filing with the Commission, the NASD included statemenets 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 polaces specified in Item III below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to amend NASD Rule 4710 to specify that if a UTP exchange elects not to participate in SuperSOES, SuperSOES will not include the UTP exchange's quotation for order processing and execution purposes. Nasdaq is seeking approval of this rule change as a pilot that would be effective until February 28, 2002.
NNMS refers to Nasdaq's reconfigured Small Order Execution System named SuperSOES. SuperSOES is an automated execution system that allows the entry of orders for up to 999,999 shares. By removing the size and capacity restrictions from its principal automatic execution system, Nasdaq intended for most of the orders executed through Nasdaq's systems to migrate to SuperSOES. Consistent with that approach, and with the exceptions discussed below, access to SelectNet was limited to certain types of non-liability orders that require negotiation with the receiving market participant.
Nasdaq market makers are required to participate in SuperSOES and, therefore, to accept automatic execution against their displayed quotations. However, a subset of Nasdaq market participants, UTP exchanges, as well as Electronic Communications Networks (“ECNs”), continue to have their quotes in Nasdaq accessed through SelectNet and, as such, are not required to accept automatic executions.
This pause serves two purposes. First, it provides a Nasdaq market participant the opportunity to send a SelectNet liability message to the UTP exchange (if that exchange has chosen to participate in SelectNet
If, after 90 seconds, a SuperSOES market participant does not join the current best bid/best offer, and the UTP exchange does not respond to its inbound SelectNet order, SuperSOES returns the orders in the queue and the system shuts down for that security. The system will only resume once the UTP exchange responds to orders delivered to its quote, or moves its quote away from the inside.
UTP exchanges that choose this option would be accessible by telephone as contemplated in the OTC/UTP Plan, or via a mutually agreed-upon alternative bilateral link negotiated by the UTP exchange. Nasdaq states that it welcomes the opportunity to explore the possibility of bilateral linkages, which Nasdaq anticipates could be formed via separate agreement between Nasdaq and the exchange(s).
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act, in that the proposal is designed to facilitate transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. In particular, Nasdaq believes that modifying SuperSOES to trade through quotations of nonautomatic execution UTP exchanges is necessary for the fair and orderly operation of the Nasdaq Stock Market because it helps reduce the potential for order queuing or for system stoppages, when a UTP Exchange's quote is inaccessible through SuperSOES and is alone at the best bid or best offer.
The NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal 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 the filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2001-77 and should be submitted by December 6, 2001.
The Commission finds that the proposal, as amended, is consistent with Section 15A of the Act, and in particular with paragraph (b)(6), which requires that the rules of a national securities asssociated be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
Nasdaq has requested that the Commission grant accelerated approval of the proposed rule change because it believes that the potential for shut down in its automatic execution systems is a serious, imminent concern. Up to four additional national securities exchanges plan to begin trading Nasdaq listed securities in the near future.
The Commission finds good cause pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 13, 2001, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend NYSE Rule 13.30 to: (i) reduce the minimum size of XPress orders and quotes from 25,000 shares to 15,000 shares; and (ii) reduce the time period for designation as an XPress quote from 30 seconds to 15 seconds.
The Commission received two comment letters from the Investment Company Institute (“ICI”) and Junius W. Peake (“Peake”).
In response to the ICI Letter, the NYSE stated that the ICI's suggested changes would “result in automatic execution of large-size orders against contra side interest that is both reflected in the current quotation, and reflected as away from the market limit orders on the limit order book that have never been exposed to the auction market.”
Peake supported the ICI's position, but stated that the ICI “did not go far enough in criticizing the NYSE's system.” In addition, Peake stated, among other things, that “[t]he NYSE's system continues to favor its specialists by giving them time to react to bids and offers sent to them before requiring execution.” Peake also stated that “[m]any institutional investors are reluctant to expose their orders to the Floor, since it provides a golden opportunity for those with advance information to front run investors' orders, either for themselves or for their favored customers.”
In response to the Peake Letter, the NYSE stated that the NYSE's market structure does not favor specialists by allowing them to react to bids and offers before executing them. According to the Exchange, the specialist “must expose all agency orders to the auction, represent them in accordance with the principles of agency law, and may not trade for his or her own account at prices at which he or she holds an executable agency order.” In addition, the Exchange stated that the XPress system addresses the issue of front running by “freezing the contra side of the market from further auction trading once the XPress order is announced.”
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission finds that the proposed rule change is consistent with section 6(b)(5) of the Act
The Commission believes that by reducing the required number of shares for XPress orders and quotes and the minimum display requirement for XPress quotes, the proposed rule change should result in more orders and quotes being XPress eligible, which should help to assure the economically efficient execution of securities transactions and remove impediments to and perfect the mechanism of a free and open market and a national market system. In addition, the Commission believes that the 15 second display requirement should continue to provide brokers and non-XPress orders the opportunity to interact with the quote before it becomes XPress eligible.
The Commission finds that the Exchange has addressed the most significant concerns raised by commenters.
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 amend Exchange Rule 1080, “Philadelphia Stock Exchange Automated Options Market (AUTOM) and Automatic Execution System (AUTO-X),” to increase its automatic execution guarantee for options overlying the QQQ
Below is the text of the proposed rule change. Proposed new language is
(a)-(b) No change.
(c) AUTO-X—AUTO-X is a feature of AUTOM that automatically executes public customer market and marketable limit orders up to the number of contracts permitted by the Exchange for certain strike prices and expiration months in equity options and index options, unless the Options Committee determines otherwise. AUTO-X automatically executes eligible orders using the Exchange disseminated quotation and then automatically routes execution reports to the originating member organization. AUTOM orders not eligible for AUTO-X are executed manually in accordance with Exchange rules. Manual execution may also occur when AUTO-X is not engaged. An order may also be executed partially by AUTO-X and partially manually.
The Options Committee may for any period restrict the use of AUTO-X on the Exchange in any option or series. Currently, orders up to 100 contracts, subject to the approval of the Options Committee, are eligible for AUTO-X.
The Options Committee may, in its discretion, increase the size of orders in one or more classes of multiply-traded equity options eligible for AUTO-X to the extent necessary to match the size of orders in the same options eligible for entry into the automated execution system of any other options exchange, provided that the effectiveness of any such increase shall be conditioned upon its having been filed with the Securities and Exchange Commission pursuant to section 19(b)(3)(A) of the Securities Exchange Act of 1934.
(c)(i)(A)-(E) No change.
(d)-(j) No change.
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 Phlx proposes to increase the maximum order size eligibility for Auto-X in QQQ options from 100 contracts to 250 contracts. Under the rules of the Exchange, through AUTOM,
The Exchange represents that AUTO-X affords prompt and efficient automatic executions at the disseminated quotation price on the Exchange. Therefore, the Exchange believes that increasing automatic execution levels for eligible orders in QQQ options from 100 contracts to 250 contracts should provide the benefits of automatic execution to a larger number of customer orders. Further, the Exchange notes that this increase in the automatic execution levels in QQQ options should enable the Exchange to remain competitive for order flow with other exchanges that trade QQQ options.
The exchange notes that there are many safeguards incorporated into Exchange rules to ensure the appropriate handling of AUTO-X orders. For example, PHLX Rule 1080(f)(iii) states that the specialist is responsible for the remainder of an AUTOM order where a partial execution has occurred. Phlx Rule 1015 governs execution guarantees and requires the
The Wheel is a mechanism that allocates AUTO-X trades among specialists and Registered Options Traders (“ROTs”).
The Exchange also has procedures that permits a specialist to disengage AUTO-X in extraordinary circumstances.
With respect to financial responsibility issues, the Exchange notes that it has a minimum net capital requirement respecting ROTs.
The Exchange believes that automatic execution of orders in QQQ options for up to 250 contracts should provide customers with quicker executions for a larger number of orders by providing automatic rather than manual executions, thereby reducing the number of orders subject to manual processing. The Exchange also believes that increasing the AUTO-X maximum order size in QQQ options should not impose a significant burden on operation or capacity of the AUTOM system and will give the Exchange better means of competing with other options exchanges for order flow.
For the reasons stated above, the Exchange believes 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 inappropriate burden on competition.
No written comments were either solicited or received.
Within 35 days of the date of publication of this notice in the
(A) by order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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-2001-89 and should be submitted by December 6, 2001.
For the Commission, by the Division of Market Regulation, Pursuant to delegated authority.
Department of State.
Notice.
Notice is hereby given that the Department of State has forwarded the attached Notifications of Proposed Export Licenses to the Congress on the dates shown on the attachments pursuant to sections 36(c) and 36(d) and in compliance with section 36(e) of the Arms Export Control Act (22 U.S.C. 2776).
As shown on each of the seventeen letters.
Mr. William J. Lowell, Director, Office of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202 663-2700).
Section 38(e) of the Arms Export Control Act mandates that notifications to the Congress pursuant to sections 36(c) and 36(d) must be published in the
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting herewith certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data, defense services and defense articles for the Enhanced Paveway II and III Computer Control Groups, Guidance Control Groups and associated hardware, containers and test software for end-use by the United Kingdom Ministry of Defence.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting herewith certification of a proposed license for the export of major defense equipment sold under a contract in the amount of $50,000,000 or more.
The transaction described in the attached certification involves the export of the An-Yu Mobile and Fixed Radar System to the Government of Taiwan.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting herewith certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the sale of nineteen AN/ALQ-165 (Lot II) aircraft self-protection jammers, test equipment, spares and associated training to the Republic of Korea Air Force.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(d) of the Arms Export Control Act, I am transmitting herewith certification of a proposed technical assistance agreement for the export of defense services involving the manufacture abroad of significant military equipment.
The transaction contained in the attached certification involves the export of defense services to participate in the design of the Future Royal Navy Aircraft Carrier for the United Kingdom Ministry of Defense.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical information and services for the manufacture of F110/F101/TF39/F404/F404-402/RM12 aircraft engine components in Canada.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data and assistance to Japan for the manufacture of T53 propulsion engine spare parts for use by the Japan Defense Agency.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data and assistance to support the manufacture in Japan of the Combined Effects Munition for the Japanese Self Defense Force.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data and engineering information to Japan for the manufacture of Chukar II and III target drone systems for use by the Japanese Government.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data and technical assistance to support the manufacture in Japan of microwave tubes for the Japanese Government.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data and technical assistance to support the manufacture in Japan of the Firebee I Target System for the Japanese Government.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting herewith certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction described in the attached certification involves the export of technical data and assistance associated with the sale of one NIMIQ-2 Direct Broadcast Satellite System commercial communication satellite to Canada.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the manufacture, maintenance, repair and testing in Japan of the AN/ARR-78(V) Advanced Sonobuoy Communications Link Receiver for installation on P-3C aircraft of the Japanese Government.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36 (c) and (d) of the Arms Export Control Act, I am transmitting herewith certification of a proposed manufacturing license agreement with South Korea.
The transaction described in the attached certification involves the transfer of technical data and assistance in the manufacture of the AN/ARC-232 (V), also known as the RT-1818 UHF/VHF Multi-Band Have Quick II Tactical Airborne Communications Equipment, for end use by the armed forces of South Korea.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36 (c) of the Arms Export Control Act, I am transmitting herewith certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction described in the attached certification involves six launches of commercial communications satellites aboard Delta launch vehicles for the Skybridge program.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the extension through 2011 of the F-15 component manufacturing licensing agreement with Israel.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the sale of fifty installed and nine spare F100-PW-229 engines, spare parts, ten-year warranty, support equipment and engine test equipment to the Government of Israel, Ministry of Defense.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the export of defense services and technical data for the manufacture in the United Kingdom of the Vehicle Intercommunications System.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
U.S. Department of State.
Notice.
November 1, 2001.
Vickie Alexander, Program Administrator, U.S.-Egypt Science and Technology Grants Program, U.S. Embassy, Cairo/ECPO, Unit 64900, Box 6, APO AE 09839-4900; phone: 011-(20-2) 797-2925; fax: 011-(20-2) 797-3150; E-mail:
This program is established under 22 U.S.C. 2656d and the Agreement for Scientific and Technological Cooperation between the Government of the United States of America and the Government of the Arab Republic of Egypt.
A solicitation for this program will begin November 1, 2001. This program will provide modest grants for successfully competitive proposals for development visits by Junior American Scientists to Egypt; and Junior Egyptian Scientists to the United States. Applicants must be scientists who have received their PhD within the past ten years. Proposals considered for funding must be postmarked by December 13, 2001. All proposals, which fully meet the submission requirements, will be considered; however, special consideration will be given to proposals in the areas of Biotechnology, Standards and Metrology, Environmental Technologies, Energy, Manufacturing Technologies and Information Technology. More information on these priorities and copies of the Program Announcement/Application may be obtained request.
Office of the United States Trade Representative.
Notice of a partially opened meeting.
The Industry Sector Advisory Committee on Services (ISAC-13) will hold a meeting on November 20, 2001, from 9 a.m. to 12 p.m. The meeting will be opened to the public from 9 a.m. to 9:45 a.m. and closed to the public from 9:45 a.m. to 12 p.m.
The meeting is scheduled for November 20, 2001, unless otherwise notified.
The meeting will be held in Conference Room 6057, of the Minority Business Development Agency (MBDA), located at 14th and Constitution Avenue, NW., Washington, DC.
Jennifer Moll (principal contact), at (202) 482-1316, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230 or myself on (202) 395-6120.
During the opened portion of the meeting the agenda topics to be addressed will be:
• Report on November 2001 WTO Ministerial in Doha
• U.S.-Chile Free Trade Agreement (FTA) Negotiations Overview
• Review of ISAC Membership Process
The following Agreements were filed with the Department of Transportation under provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the applications.
Docket Number: OST-2001-10887.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice of Research Activity.
The U.S. Department of Transportation (DOT) is seeking partners who have the potential of providing electronically controlled braking systems (ECBS) that can be used in an electronically controlled braking system test track evaluation. This notice describes criteria and tests that will be applied to each candidate system as part of the determination of fitness for inclusion in this evaluation. Manufacturers of systems that meet these criteria are invited to submit a description of their system and instructions on operation of the system to DOT.
Each system must satisfy the following criteria: (1) It must be designed to work in conjunction with standard, air-actuated drum brake mechanisms (
Any system that meets the above criteria may be included in a DOT-sponsored test track study to evaluate the validity and reliability of its capability to electronically control braking systems on commercial motor vehicles. This planned test track evaluation was previously developed by a working group of brake experts formed by the Society of Automotive Engineers (SAE) under Federal Motor Carrier Safety Administration (FMCSA) Contract No. DTMC75-01-P-00022 as part of the Intelligent Vehicle Initiative. Various ECBS will be evaluated by SAE at the Transportation Research Center, Inc., located in East Liberty, Ohio. Various Class 7 and 8 heavy duty tractors and commercial trailers will be used in this evaluation of the validity and reliability of these systems' capability to electronically control braking systems on commercial motor vehicles under a cooperative agreement with the Federal Highway Administration (FHWA) Contract No. DTFH61-96-X-00015, Amendment No. 18.
The offeror understands that the system, if selected to participate in the test track evaluation, will be tested as provided. The analysis that is derived from this test track work will be made publicly available; however, the system will not be identified by manufacturer. The offeror shall in no way interfere with the procedures or personnel involved in conducting or managing the study.
Furthermore, (1) previous studies and research involving the device may be disclosed and provided to the Federal Government to assist in evaluating the “fitness” of the system for evaluation; (2) selection to participate in the test track study will NOT constitute an endorsement of the device by the Federal Government; and (3) involvement does not constitute a promise of any future relationship with the Federal Government.
The systems will be tested in an outdoor test track environment. A test matrix will be used to assess various configurations of ECBS-equipped vehicles as ECBS can be provided in various formats. The ECBS systems will be tested on a range of different Class 7 and 8 trucks, tractors, and commercial semitrailers equipped with new, burnished foundation brakes. To provide a baseline for comparison, vehicles will be tested first with conventional pneumatically controlled brake systems (PCBS) in accordance with FMVSS No. 121. This testing will include stopping distance and static brake timing tests. Vehicles will then be modified to incorporate ECBS, and the tests will be repeated. The tests with ECBS will evaluate a broad range of possible failure modes in order to assess partial system performance and compliance with the emergency stopping requirements of FMVSS No. 121.
As part of the testing program, the stopping performance of combination vehicles (
The test results will be shared with the manufacturers of these systems. DOT is only interested in testing systems that are operationally ready.
Submit system descriptions on or before December 17, 2001.
All proposals should refer to Docket No. NHTSA-2001-10196 and should be submitted to Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. Docket hours are from 9 a.m. to 5 p.m. Monday through Friday. If you wish to receive confirmation of your written comments, please include a self-addressed, stamped postcard.
Proposals may also be sent by electronic submission. The electronic submission procedure is described in the Docket Management section of DOT's web site:
Jim Britell, Mail Code NRD-13, Office of Vehicle Safety Research, NHTSA, 400 Seventh Street, SW., Washington DC 20590-0001, telephone (202) 366-5678.
DOT has created a program titled the Intelligent Vehicle Initiative (IVI). The goal of the IVI program is to increase safety on the Nation's highways through the acceleration of the deployment of on-vehicle safety devices. One of the primary focus areas of the IVI is commercial motor vehicle stability.
Electronically controlled braking is viewed as a technology that can provide shorter stopping distances (improved timing), improved dynamic brake force distribution, improved combination vehicle brake balance, self-diagnosis, and continuous brake monitoring. Because of the complexity of this technology (ranging from shorter stopping distances to improved vehicle brake diagnostics) and the various systems involved, it was suggested by the Truck Manufacturers Association at a public hearing sponsored by the National Transportation Safety Board in Nashville, Tennessee, August 31 through September 2, 1999, on Advanced Safety Technologies Applicable to Commercial Vehicles, that industry and Government work together in the preliminary track and operational testing of these braking systems. Additionally, electronically controlled brakes are an enabling technology whose benefits could extend to, and enhance, a number of vehicle braking and dynamic control system issues.
Numerous factors play a contributing role in causing heavy-duty tractor/trailer and passenger car crashes. Inadequate braking performance is a significant cause of commercial and vehicle crashes. The existing brake systems have performance limits. To more effectively address the brake-related issue of crashes (1) due to brake failures or defective brakes, (2) due to maladjusted and/or overheated brakes, and (3) where the heavy-duty vehicle is unable to stop in time, it is obvious to brake experts that some kind of adaptive electronic control system will be required. In 1993, brake manufacturer Bosch and truck manufacturer Scania introduced the first production-like brake by wire system for tractors/trucks and trailer/semitrailers. This technology is more commonly called Electronically Controlled Braking System (ECBS) for commercial vehicles. Other brake manufacturers and truck manufacturers have developed similar, although not identical, systems. Due to a lack of standardization of the tractor/trailer interface, production has been mostly limited to straight trucks and tractors. The next generation of electronic braking systems is well under way, taking advantage of the Controller Area Network technology, a joint development of Bosch and Intel of a data bus especially suited for the requirements in heavy duty vehicles.
DOT, NHTSA has addressed brake-induced instability by requiring ABS on newly manufactured tractors and trailers (FMVSS No. 121). The basic function of ABS is to monitor wheel speed and modulate the air pressure in the brake chambers in a manner to prevent wheel lock during severe braking. The successful introduction and acceptance of ABS by industry was only accomplished after many years of track testing and an extensive 4-year field operational test. The planned test track evaluation of ECBS solicited by this notice will be accomplished under a cooperative agreement between the FHWA and SAE. This evaluation is intended as a precursor to an on-the-road field operational test, which will include a motor carrier fleet in revenue generating service.
Submit proposed system descriptions in English, including the Docket Number (NHTSA-2001-10196), to DOT's Public Docket Management Room at the previously listed address. The submission should include the following:
1. A description of the system, along with operating instructions.
2. The submission should be no more than five pages in length.
3. Any existing evidence of objective validity or reliability is encouraged to be submitted. This information DOES NOT count toward the 5-page length limit.
4. Three copies of your submission.
5. Your name, address, phone number, and E-mail address.
6. DO NOT submit your system at this time.
7. Applications, once submitted, become the property of DOT.
Flats Industrial Railroad Company (FIR) and Norfolk Southern Railway Company (NSR) filed a notice of exemption under 49 CFR 1180.2(d)(5) for a joint project involving the relocation of lines of railroad in Cleveland, OH. The relocation pertains to and facilitates NSR's Cloggsville Connection, which is an overhead routing through Cleveland developed by NSR, relating to the acquisition of control over Consolidated Rail Corporation (Conrail) by NSR and CSX Transportation, Inc.
FIR, a Class III carrier, owns a 4-mile rail line acquired from Conrail in 1996 that extends north from Knob to the Flats area of Cleveland, OH.
Under the Cloggsville Connection alternative, imposed by the Board as Environmental Condition No. 26(A) in
With respect to the joint relocation project, FIR and NSR have reached an agreement to accommodate the FIR relocation and the transfer of the underlying right-of-way to NSR, as follows: (1) FIR's rail line extending between milepost 14.0 at Knob, and milepost 11.85 near West 41st Street, a distance of approximately 2.15 miles, will be transferred to NSR, rebuilt and
The proposed joint relocation project will not disrupt service to shippers.
The Board will exercise jurisdiction over the abandonment or construction components of a relocation project, and require separate approval or exemption, only where the removal of track affects service to shippers or the construction of new track involves expansion into new territory.
As a condition to this exemption, any employees affected by the joint relocation project will be protected by the conditions imposed in
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34108, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on William C. Sippel, Fletcher & Sippel LLC, Two Prudential Plaza, Suite 3125, 180 North Stetson Avenue, Chicago IL 60601-6721, and John V. Edwards, General Attorney, Norfolk Southern Corporation, Three Commercial Place, Norfolk, VA 23510-9241.
Board decisions and notices are available on our web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Fort Worth and Western Railroad Company, Inc. (FWWR), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire and operate rail lines owned by the Union Pacific Railroad Company (UP). FWWR will acquire, by lease, the full and exclusive rights to operate UP's Peach Yard, extending from milepost 611.20 to milepost 611.80 in Fort Worth, TX, excluding main line trackage. In addition, FWWR will acquire non-exclusive incidental trackage rights, solely for the purpose of interchanging traffic, over UP's main lines as follows: (1) Between mileposts 748.00 and 754.41, on the Choctaw Subdivision; (2) between mileposts 608.00 and 612.96, on the Duncan Subdivision, and between mileposts 250.00 and 251.03, on the Fort Worth Subdivision. The total route miles of trackage acquired under lease is 0.60 and under incidental trackage rights are 12.40.
Because the projected revenues of the rail lines to be operated will exceed $5 million, FWWR has certified to the Board that the required notice of its acquisition and operation was posted at the workplace of the employees on the affected lines and a copy of the notice was served on the national offices of the labor unions of the employees on the affected lines on October 25, 2001.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34131, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Paul H. Lamboley, Esq., 1717 N Street, NW., Washington, DC 20036.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 12 to the Treasury Department Circular 570; 2001 Revision, published July 2, 2001 at 66 FR 35024.
Surety Bond Branch at (202) 874-6765.
Notice is hereby given that the Certificate of Authority issued by the Treasury to the above named Company, under the United States Code, Title 31, Sections 9304-9308, to qualify as an acceptable surety on Federal bonds is terminated effective today.
The Company was last listed as an acceptable surety on Federal bonds at 66 FR 35047, July 2, 2001.
With respect to any bonds, including continuous bonds, currently in force with the above listed Company, bond-approving officers should secure new bonds with acceptable sureties in those instances where a significant amount of liability remains outstanding. In addition, in no event, should bonds that are continuous in nature be renewed.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6A04, Hyattsville, MD 20782.
(b) The heads of the Office of Homeland Security and the Domestic Policy Council, or their designated representatives, shall serve as Co-Chairs of the Task Force.
(a) prepare in their homes, neighborhoods, schools, places of worship, workplaces, and public places for the potential consequences of any possible terrorist attacks within the United States; and
(b) volunteer to assist or otherwise support State and local public health and safety officials and others engaged in the effort to prevent, prepare for, and respond to any possible terrorist attacks within the United States.
Environmental Protection Agency (EPA).
Final rule.
This final rulemaking amends the current regulations that implement the statutory ban on nonessential products that release Class I ozone-depleting substances under section 610 of the Clean Air Act, as amended. This final rule does not affect the use of Class II ozone-depleting substances. This rulemaking was developed by EPA based on new and compelling information that was gathered and indicates limited continued use by some sectors of Class I substances in products where the use of those substances today should be considered a “nonessential use of Class I substances in a product” based on the availability and widespread use of alternatives. The products affected by this rulemaking are aerosol products, pressurized dispensers, plastic foam products, and air-conditioning and refrigeration products that contain or are manufactured with Class I substances (
January 14, 2002.
Comments and materials supporting this rulemaking are contained in Public Docket No. A-98-31, Waterside Mall (Ground Floor) Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460 in room M-1500. Dockets may be inspected from 8:00 a.m. until 5:30 p.m., Monday through Friday. A reasonable fee may be charged for copying docket materials.
Cindy Newberg, Stratospheric Program Implementation Branch, Global Programs Division, Office of Atmospheric Programs, Office of Air and Radiation (6205-J), 1200 Pennsylvania Avenue, NW, Washington, DC 20460, (202) 564-9729. The Stratospheric Ozone Information Hotline at 1-800-296-1996 can also be contacted for further information.
The contents of this preamble are listed in the following outline:
Entities potentially regulated by this action are those that wish to sell and/or distribute in interstate commerce aerosols, pressurized dispensers, plastic foam products, refrigerators and air-conditioning equipment that contain chlorofluorocarbons (CFCs). Regulated categories and entities include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your company is regulated by this action, you should carefully examine the applicability criteria contained in section 610 of the Clean Air Amendments of 1990, discussed in regulations codified at 40 CFR part 82, subpart C and published on January 15, 1993 (58
Title VI of the Clean Air Act (the “Act”) divides ozone-depleting chemicals into two distinct classes. Class I is comprised of chlorofluorocarbons (CFCs), halons, carbon tetrachloride and methyl chloroform, methyl bromide and hydrobromofluorocarbons. Class II is comprised of hydrochlorofluorocarbons (HCFCs). (See listing notice January 22, 1991; 56
On June 14, 1999, EPA proposed changes to the Class I Nonessential Products Ban (64
In a separate action, EPA's Significant New Alternatives Policy (SNAP) program, recently made available for public comment new information concerning the use of Class II substances and non-ozone depleting alternatives in
Section 610(b) of the Act directs EPA to identify nonessential products that “release Class I substances into the environment (including any release during manufacture, use, storage, or disposal)” and to “prohibit any person from selling or distributing any such product, or offering any such product for sale or distribution, in interstate commerce.”
Section 610(b)(1) and (2) specify products to be prohibited under this requirement, including “chlorofluorocarbon-propelled plastic party streamers and noise horns” and “chlorofluorocarbon-containing cleaning fluids for noncommercial electronic and photographic equipment.”
Section 610(b)(3) extends the prohibition to other products determined by EPA to release Class I substances and to be nonessential. In determining whether a product is nonessential, EPA is to consider the following criteria: “the purpose or intended use of the product, the technological availability of substitutes for such product and for such Class I substance, safety, health, and other relevant factors.”
The regulatory Class I Ban promulgated by EPA under these statutory provisions currently identifies as nonessential, and therefore subjects to the prohibitions, the following:
(A) plastic party streamers and noise horns propelled by chlorofluorocarbons;
(B) cleaning fluids for electronic and photographic equipment which contain a chlorofluorocarbon, including but not limited to liquid packaging, solvent wipes, solvent sprays, and gas sprays, except for those sold or distributed to a commercial purchaser;
(C) plastic flexible or packaging foam product which is manufactured with or contains a chlorofluorocarbon, including but not limited to:
(D) any aerosol product or other pressurized dispenser which contains a chlorofluorocarbon,
Verification and public notice requirements have been established for distributors of certain products intended exclusively for commercial use.
Through this action, an additional category of banned products will be added and some products will be removed from the exempted list. The preamble to the 1993 rulemaking implementing the Class I Ban established that EPA should in the future reconsider exceptions granted and limitations of the Ban under that rulemaking based on new and compelling information regarding the availability of substitutes for Class I substances. In 1993, EPA limited consideration of banned products to aerosols, pressurized dispensers, and foams. These sectors traditionally used ozone-depleting substances and were subject to the statutory Class II Ban. Since that rulemaking was issued, the phaseout of production and consumption of Class I substances has become effective and the Significant New Alternatives Policy (SNAP) program mandated under section 612 of the Act has been established. The phaseout of newly manufactured Class I substances and the identification of acceptable substitutes provide compelling reasons to reconsider the initial decisions regarding both product-specific exemptions and the decision to limit the Ban's effect to major sectors that traditionally used ozone-depleting substances.
The regulations implementing the Class I Ban provide for EPA to reconsider decisions that were made regarding specific products and product categories. EPA indicated in 1993 that the Agency would reconsider decisions in the future based on developments of products using substitutes to Class I substances. EPA has previously reconsidered specific decisions. In December 1993 (58
Based on development of new substitutes and the characterization of the criteria for nonessentiality discussed below, particularly as applied to the use of Class I substances in products that are themselves not nonessential, on June 14, 1999, (64
As stated above, section 610(b)(3) extends the prohibition on sale of nonessential products to other products determined by EPA to release Class I substances and to be nonessential. In determining whether a product is nonessential, EPA is to consider the following criteria: “the purpose or intended use of the product, the technological availability of substitutes for such product and for such Class I substance, safety, health, and other relevant factors.” The statute requires EPA to consider each criterion but did not outline either a ranking or a methodology for comparing their
This criterion relates to the importance of the product, in terms of benefits to society, specifically whether the product is sufficiently important that the benefits of its continued production outweigh the associated danger from the continued use of a Class I ozone-depleting substance in it, or alternatively, whether the product has little benefit, such that even a lack of available substitutes might not prevent the product from being considered nonessential. The initial Class I final rulemaking included a discussion about the contributions of a product to the quality of life.
The distinction between a “nonessential product” and a “nonessential use of Class I substances in a product” is a relevant criterion. For example, while foam cushioning products for beds and furniture are not “frivolous,” the use of a Class I substance in the manufacturing process for foam cushioning where substitutes are readily available is considered nonessential. The ability of manufacturers to switch from using a Class I substance is a relevant indicator for this criterion. The initial Class I final rule states that “the Agency believes that in sectors where the great majority of manufacturers had already shifted to substitutes, the use of a Class I substance in that product may very well be nonessential.” Consequently, EPA believes it is appropriate under this criterion to examine sectors where most of the market has previously switched out of CFCs.
EPA has previously interpreted this criterion to mean the existence and accessibility of alternative products or alternative chemicals for use in, or in place of, products releasing Class I substances. EPA believes that the phrase “technological availability” includes both currently available substitutes (
The corresponding criterion from the 1978 aerosol ban is the “nonavailability of alternative products.” In its supporting documentation, EPA stated that this was the primary criterion for determining if a product had an “essential use” under the 1978 rule. EPA emphasized, however, that the absence of an available alternative did not alone disqualify a product from being banned as nonessential.
The availability of substitutes is clearly a critical criterion for determining if a product containing a Class I substance is nonessential. In certain cases, a substitute that is technologically feasible, environmentally acceptable and economically viable, but not yet produced and sold in commercial quantities, may meet this criterion with respect to certain products. However, EPA believes that, where substitutes are readily available, the use of Class I substances could be considered nonessential even in a product that is extremely important.
EPA does not necessarily advocate the use of all substitutes that are currently being used in place of CFCs in the products EPA identifies as nonessential. In many cases potential substitutes are subject to other regulatory programs. For example, the SNAP program promulgated under CAA 612 carefully considers the relative health and environmental risks and merits of different substitutes for ozone-depleting substances. Substitutes are listed under that regulatory program as acceptable, unacceptable, or acceptable subject to use restrictions for specific uses. However, within the limited purposes of the nonessential products bans, EPA considers the existence and accessibility of alternative products or alternative chemicals for use in, or in place of, products releasing Class I substances. Any future use of such substitutes must comport with any conditions of the SNAP program, if applicable.
EPA interprets these two criteria to mean the effects on human health and the environment of the products releasing Class I substances or their substitutes. In evaluating these criteria, EPA considered the direct and indirect effects of product use, and the direct and indirect effects of alternatives, such as ozone depletion potential, flammability, toxicity, corrosiveness, energy efficiency, ground-level air hazards, and other environmental factors.
If any safety or health issues prevented a substitute from being used in a given product, EPA then considered that substitute to be “unavailable” at the time for that specific product or use. EPA noted in the initial rulemaking that as new information becomes available on the health and safety effects of possible substitutes, EPA could reevaluate determinations made regarding the nonessentiality of products.
Section 610(e) states that “nothing in this section shall apply to any medical devices as defined in section 601(8).” Section 601(8) defines “medical device” as “any device (as defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)), diagnostic product, drug (as defined in the Federal Food, Drug, and Cosmetic Act), and drug delivery system—(A) if such device, product, drug, or drug delivery system utilizes a Class I or Class II substance for which no safe and effective alternative has been developed and, where necessary, approved by the Commissioner of the Food and Drug Administration (FDA); and (B) if such device, product, drug, or drug delivery system, has, after notice and opportunity for public comment, been approved and determined to be essential by the Commissioner in consultation with the Administrator.”
The FDA is currently reviewing its determinations under 21 CFR 2.125(e). At this time, the FDA lists 12 medical devices for human use as essential uses of CFCs in 21 CFR 2.125(e). These devices consist of certain metered dose inhalers (MDIs), contraceptive vaginal foams, intra-rectal hydrocortisone acetate, polymyxin B sulfate-bacitracin-zinc-neomycin sulfate soluble antibiotic powder without excipient for topical use, and anesthetic drugs for topical use on accessible mucous membranes where a cannula is used for application. For additional information regarding FDA determinations and plans for potential regulatory changes, see 62 FR 10242 (March 6, 1997).
Medical products as determined by FDA and listed as essential at 21 CFR 2.125(e) are exempt from the Class I Ban at 40 CFR part 82, subpart C. This document does not propose any changes to this current exemption. However, other medical-related products not contained in the FDA's list of essential uses (21 CFR 2.125(e)), and therefore not
In drafting the initial rulemaking to prohibit certain products under section 610(b)(3), the Agency considered every major use sector that used Class I substances including: Refrigeration and air-conditioning, solvent use, fire extinguishing, foam blowing, and aerosol use. Based on that review, EPA identified three broadly defined product categories for further evaluation: Aerosol products and pressurized dispensers containing CFCs or halons, plastic flexible and packaging foams, and halon fire extinguishers for residential use.
EPA believed that in each of these sectors two important conditions existed: Substitutes were already available for the product or the Class I substance used or contained in that product; and, either the affected industry had, for the most part, moved out of the use of Class I substances or the market share of products using or containing Class I substances was small and shrinking. In addition, in the case of aerosols and plastic flexible and packaging foams, section 610(d) imposed a self-effectuating ban on the sale or distribution of such products containing or produced with Class II substances after January 1, 1994.
The 1993 rulemaking specifically discussed the other sectors and provided information regarding the Agency's determinations. Refrigeration and air-conditioning, including mobile air-conditioning, represented the largest total use of Class I substances in the United States in 1993. At the time the initial rulemaking was promulgated, substitutes were available for some refrigeration and air-conditioning products. For example, the automotive manufacturers were in the process of switching to HFC-134a for new models rather than CFC-12 in their air-conditioning systems. However, potential substitutes for other refrigeration and air-conditioning uses were still being evaluated.
EPA did not include prohibitions on the use of Class I substances in refrigeration or air-conditioning in the 1993 rulemaking because determinations regarding substitutes for all such uses were not anticipated to be available within the time-frame of that rulemaking. Accordingly, EPA could not conclude that the use of Class I refrigerants in all refrigeration or air-conditioning uses were nonessential at the time of that rulemaking. Furthermore, at that time, EPA had not yet issued final regulations that specifically addressed non-automotive or stationary refrigeration and air-conditioning uses of Class I substances (subsequently promulgated under CAA section 608 and codified at 40 CFR part 82, subpart F). These regulations addressed standards for the recovery and reuse of refrigerants.
Solvent uses of Class I substances, including commercial electronics de-fluxing, precision cleaning, metal cleaning and dry cleaning also represented a significant use in 1993. Industry had already identified potentially available substitutes for nearly all of the thousands of products then manufactured with Class I solvents, and many companies had already phased out the use of CFCs in certain products. EPA did not address solvent use in that rulemaking (accept where the solvent application was within an aerosol or pressurized dispenser) because the sheer number of products and the range of potential substitutes made it impossible for EPA to conclude definitively that substitutes were available for any of these specific uses, and thus that such uses were nonessential, within the short statutory time-frame for the Class I Ban rulemaking. Moreover, EPA believed a ban on such uses would be unnecessary as most manufacturers were phasing out use as particular substitutes became available, in anticipation of the impending production phaseout.
EPA considered the use of Class I substances in fire extinguishing applications in its initial review as well. Halons were widely used in fire extinguishing systems. These fire extinguishing systems include both total flooding systems (such as stationary fire suppression systems in large computer facilities) and streaming systems (such as hand-held fire extinguishers). In evaluating possible nonessential uses of halons in fire fighting, the Agency divided the fire protection sector into six broad end uses: (1) Residential/Consumer Streaming Agents, (2) Commercial/Industrial Streaming Agents, (3) Military Streaming Agents, (4) Total Flooding Agents for Occupied Areas, (5) Total Flooding Agents for Unoccupied Areas, and (6) Explosion Inertion. EPA concluded that substitutes for halons, whether other halocarbons or alternatives such as water, should meet four general criteria to provide a basis for determining that the use of halon in residential fire extinguishers is nonessential. They must be effective fire protection agents, they must have an acceptable environmental impact, they must have a low toxicity, and they must be relatively clean. In addition, they must be commercially available as a halon replacement in the near future. EPA concluded that while satisfactory substitutes were not yet available in most commercial and military applications within the short statutory time-frame of the rulemaking, certain substitutes were already commercially available for hand-held halon fire extinguishers in residential settings. Consequently, the Agency decided to evaluate this application more closely in order to determine whether residential fire extinguishers containing halon should be designated nonessential products, or whether the continued use of halons, despite the imposition of the excise tax and the impending production phaseout, indicated that this application did not meet the criteria for nonessentiality. Ultimately, after reviewing the issue and soliciting comment, the final rulemaking did establish a ban on the use of halon in residential streaming applications. Furthermore, the use of CFCs in fire extinguishing equipment was also restricted.
EPA considered aerosols and pressurized dispensers likely candidates for designation as nonessential products in 1993 because a great deal of information on substitutes for CFCs in these applications already existed. Research on substitutes for CFCs in aerosol applications began in the 1970s in response to the early studies on stratospheric ozone depletion and the 1978 ban on the use of CFCs as aerosol propellants. Consequently, extensive data already existed on possible substitutes for most remaining aerosol uses.
The 1978 aerosol ban prohibited the manufacture of aerosol products using CFCs as propellants. Other uses of CFCs in aerosols (such as solvents, active ingredients, or sole ingredients) were not included in the ban. In addition, certain “essential uses” of CFCs as aerosol propellants were exempted from the ban because no adequate substitutes were available at the time. Consequently, although the use of CFCs in aerosols was reduced dramatically by the 1978 ban, the production of a number of specific aerosol products containing CFCs was still legal including: Metered dose inhalant drugs; medical solvents such as bandage adhesives and adhesive removers; skin chillers for medical purposes; aerosol tire inflators; mold release agents;
New and compelling information has been gathered by EPA that indicates that in some sectors there is limited continued use of Class I substances in products where the use of the substance today should be considered a “nonessential use of Class I substances in a product.” Since the promulgation of the initial regulations under section 610, the SNAP program has been established and now provides information regarding acceptable substitutes for various applications. While the SNAP program does not determine the efficacy of substitute substances as potential replacements for ozone-depleting substances, for most applications there are sources of information regarding the effectiveness of the substitutes, such as laboratory testing and information provided by major users and trade associations. For example, many substitutes have been listed by SNAP as acceptable for various refrigeration applications. Newly manufactured refrigerators in the United States for residential use are employing these available substitutes. As described in this notice, the Agency has determined that the use of a Class I substance in refrigeration applications now meets the definition of nonessentiality and that it is, therefore, reasonable now to promulgate revisions to the regulations that extend the Class I Ban to refrigeration applications. Similarly, substitutes now appear to be available for certain foam, aerosol, and pressurized dispenser uses.
Today's action amends the Class I Ban to meet the Agency's obligations to eliminate the nonessential uses of Class I substances. Specifically, EPA has determined that it is appropriate to reconsider the determinations of nonessentiality for the air-conditioning and refrigeration, foam-blowing, aerosols, and pressurized dispensers product categories. Today's action amends the Class I Ban to include additional nonessential uses of CFCs for these end-use applications.
On December 30, 1993, EPA published a final rulemaking (580 FR 69637) addressing issues related to the statutory prohibition against the sale or distribution, or offer for sale or distribution in interstate commerce of nonessential products containing or manufactured with a Class II substance, imposed by section 610(d) of the Act. Section 610(d)(1) states that after January 1, 1994, “it shall be unlawful for any person to sell or distribute, or offer for sale or distribution, in interstate commerce—(A) any aerosol product or other pressurized dispenser which contains a Class II substance; or (B) any plastic foam product which contains, or is manufactured with, a Class II substance.” Section 610(d)(2) authorizes EPA to grant certain exceptions and section 610(d)(3) creates exclusions from the Class II Ban in certain circumstances.
Section 610(d)(2) authorizes the Administrator to grant exceptions from the Class II Ban for aerosols and other pressurized dispensers where “the use of the aerosol product or pressurized dispenser is determined by the Administrator to be essential as a result of flammability or worker safety concerns,”
Section 610(d)(3) states that the ban of Class II substances in plastic foam products shall not apply to “foam insulation products” or “an integral skin, rigid, or semi-rigid foam utilized to provide for motor vehicle safety in accordance with Federal Motor Vehicle Safety Standards where no adequate substitute substance (other than a Class I or Class II substance) is practicable for effectively meeting such standards.” Unlike the Class I Ban, the Class II Ban was self-executing. Section 610(d) bans the sale of the specified Class II products by its own terms, without any reference to required EPA regulations. However, EPA did issue regulations implementing the Class II Ban in order to better define the products banned under section 610(d) and to grant authorized exceptions under section 610(d)(2). Section 301(a) of the Act gives EPA the authority to promulgate such regulations as are necessary to carry out its functions under the Act, and EPA determined that it was necessary to issue the Class II Ban regulations for those purposes.
The statutory criteria for providing an exemption from the Class II Ban are explicit. For any potential exemption, the use of the aerosol product or pressurized dispenser must be found to be essential based on flammability or worker safety concerns and EPA must find that the only available alternative to use of a Class II substance is use of a Class I substance which could legally be substituted for such Class II substance.
The initial final rulemaking regarding the Class II Ban provided exemptions for:
Since the issuance of the final rule providing exemptions from the statutory Class II Ban, EPA amended the final rule with regard to fire suppression based on compelling information that the Agency received. That amended regulation was issued in the
EPA has received information indicating that it may be appropriate to
EPA is currently reviewing information concerning the above aerosol and foam products and pressurized dispensers, as well as the exemptions from the Class II Ban provided in the December 1993 rulemaking. Since the implementation of the Class II Ban on January 1, 1994, progress has been made to further identify substitutes for various applications. In addition, as stated above, the SNAP program has been established and provides lists of acceptable substitutes for various applications, including applications affected by the Class II Ban. When EPA completes its evaluation of the existing exemptions for HCFCs in pressurized dispensers and aerosol products, as well as the definition of foam insulation product, the Agency may proceed with a notice of proposed rulemaking if the Agency determines that any rule revisions are appropriate.
On June 14, 1999, EPA issued an NPRM proposing changes to the Class I Ban (64 FR 31772). EPA received ten comments regarding this rulemaking. These comments are contained in Air Docket A-98-31. While most of the comments suggested minor changes or clarifications with regard to the proposal, nine of the ten comments generally supported EPA in acting to revise the Class I Ban.
EPA proposed to ban the sale and distribution and offer of sale or distribution in interstate commerce of all foam products (both insulating and non-insulating) that release Class I substances into the environment (including any release during manufacture, use, storage, or disposal). EPA stated in the NPRM its belief that there are acceptable substitutes available for replacing any continued use of Class I substances as blowing agents for foam products. EPA requested comments on revising the Class I Ban to ban the sale and distribution or offer of sale and distribution in interstate commerce of
EPA received two comments that specifically addressed plastic foam products. Both comments address specific types of foam. The first comment, from a manufacturer, stated that they currently have a stockpile of CFC-11 for producing integral skin foam. According to the comment, the company has continued to use small quantities of CFC-11 while conducting research and development of alternative foam systems. The company stated that “it is the only producer of CO
EPA applauds the efforts of this manufacturer in replacing CFCs in its processes. EPA recognizes that foam blowing companies have invested significant time and effort in developing substitute products. However, EPA does not agree with the commenter's reasons to exempt the use of the CFCs that remain on hand. Since the commenter indicates there are alternatives already available for the products that it manufactures, EPA believes this indicates that the continued use of CFC-11 in this plastic foam product meets the definition of nonessential. Therefore, EPA does not believe that the final rule should be modified to exempt the continued production of integral skin foam products with CFC-11. However, EPA recognizes the concerns with existing inventories of manufactured products containing Class I substances that have already been completely manufactured and placed into inventory. Therefore, existing inventories of previously manufactured products are considered below at section IV: Effective Dates.
With regard to the general comment regarding the benefits from this rulemaking, EPA believes that it is obligated under the criteria established by section 610 of the Act to list products that are nonessential. The recovery of the ozone layer and its resulting benefits are based on the cumulative implementation of all the programs established under Title VI of the Act, not one individual rule.
EPA received a comment from the National Aeronautics and Space Administration (NASA) regarding the use of specific plastic foam products for the space shuttle. NASA identified one particular product, BX-250, a foam which is part of the thermal protection system of the Space Shuttle External Tank and which uses CFC-11 as a blowing agent. NASA stated that “although extensive efforts have been made and continue to be made to replace this material, no viable alternative has been identified.” NASA requested that EPA revise the proposed rule to provide an exemption for CFC-blown foam products in applications that are associated with space vehicles. NASA suggested that EPA consider using the same language that EPA has previously adopted under 40 CFR part 63, subpart GG (40 CFR 63.742) for the National Emissions Standards for Hazardous Air Pollutants (NESHAPs) program. NASA provided EPA with additional information concerning its proactive pursuit of potential alternative blowing agents.
Since human space flight safety is of paramount importance to NASA, prior to implementing any new material, that material must undergo a rigorous development and qualification program for which no suitable substitute has yet been identified. NASA requested that EPA consider using the language at 40 CFR 63.742:
Space vehicle means a man-made device, either manned or unmanned, designed for operation beyond earth's atmosphere. This definition includes integral equipment such as models, mock-ups, prototypes, molds, jigs, tooling, hardware jackets, and test coupons. Also included is auxiliary equipment associated with test, transport, and storage, which through contamination can compromise the space vehicle performance.
As stated above, EPA initially provided exemptions for a narrow list of aerosol products and pressurized dispensers that release Class I substances into the environment. EPA proposed to eliminate exemptions for: gauze bandage adhesives & adhesive removers, topical anesthetic and vapocoolant products, lubricants for pharmaceutical tablet manufacture, containers of CFCs used as halogen ion sources in plasma etching, and red pepper bear repellent sprays containing CFC-113 as a solvent. EPA stated in the NPRM that the Agency believes there are substitutes available for these uses of Class I products and therefore these exemptions should be eliminated. Additionally, EPA did not propose any changes to the exemption for medical devices that are determined to be essential by the Food and Drug Administration and are listed at 21 CFR 2.125(e). Also, given the statutory links established between the Class I and Class II Bans for aerosol products and pressurized dispensers, namely the criterion in 610(d) that states that exemptions are available only where the alternative to the use of a Class II substance is the legal use of a Class I substance, EPA did not propose to eliminate exemptions for aerosol products or pressurized dispensers from the Class I Ban that are also exempted from the Class II Ban. However, EPA stated that if the Agency subsequently issues a proposed rulemaking reconsidering exemptions from the Class II Ban, that notice will also include the reconsideration for the remaining aerosol products and pressurized dispensers under the Class I Ban as well. EPA requested comments on the proposed changes to the list of exemptions for aerosol and pressurized dispensers that release Class I substances into the environment, and specifically any data indicating that such uses are still essential.
EPA received three comments that directly concern the proposed changes to the aerosol and pressurized dispensers. All three comments generally support the proposed changes to the Class I Ban. The first comment stated that the proposed changes to the ban were reasonable and agreed that for all of the listed products there are suitable substitutes for the Class I components. The comment stated that the market impact of these regulatory changes would be small.
The second comment, from a trade association, approved of EPA's decision to delay any proposed changes to the exemptions that are linked to the Class II Ban by the statutory language in 610(d). The commenter provided additional information regarding the Class II Ban and its exemptions. The third comment, from a manufacturer of aerosol products and pressurized dispensers, provided information concerning products with exemptions linked to both the Class I and Class II Bans. EPA will consider the information provided by these commenters in the future when the Agency addresses the Class II Ban and the linked Class I and Class II exemptions. Regarding the commenters' statements on the impact of today's action, EPA agrees with the comments and the assessment of the limited impacts of this action.
Therefore, EPA is taking final action to eliminate the Class I exemptions, as proposed; and will consider Class II exemptions at a later date.
Today, there are substitutes identified for a variety of refrigeration and air-conditioning applications. While substitutes continue to be developed and evaluated for these applications, the Agency stated in the June 14, 1999, NPRM that it was confident that there are sufficient technologically available substitutes for the use of Class I substances in all refrigeration and air-conditioning applications as documented in the docket for this rulemaking. EPA further stated that while there may be a limited number of products manufactured abroad and imported into the United States, as well as some potential domestic manufacturing of refrigeration and air-conditioning products containing Class I substances that EPA is not aware of and given the designated criteria for nonessentiality, EPA believed that air-conditioning and refrigeration appliances that contain CFCs meet the criteria for nonessential uses of a Class I substance. Therefore, EPA stated that it now was reasonable to consider broadening the applicability of the Class I Ban to include air-conditioning and refrigeration applications. EPA proposed to amend § 82.66 to add a provision banning the sale and distribution or offer for sale or distribution of air-conditioning and/or refrigeration appliances that contain Class I substances. EPA requested comments on expanding the Class I Ban to include air-conditioning and refrigeration appliances. In particular, EPA requested comments regarding whether there are sufficient technologically available substitutes for the use of Class I substances in all new air-conditioning and refrigeration appliances.
EPA received three comments on air-conditioning and refrigeration applications. The first commenter, a trade association, stated that it generally supported the proposal but noted that it had recommendations regarding implementation. Their support, according to the comment, is based on the knowledge that non-CFC technology for domestic refrigeration is widely disseminated.
The second commenter, a manufacturer, generally supports the efforts of EPA to restrict the manufacture of refrigerators and room air conditioners containing CFCs. The manufacturer stated that this is “a positive move that will hasten the day when CFCs (for which substitutes are available) can be eliminated completely from commerce.” Both these commenters stated that they did not believe that the ban would in any way unfairly treat foreign manufacturers or importers. The association noted that “most, perhaps all, of the firms that are importing these products are also producing and/or selling non-CFC units.” EPA agrees that replacement technology is widely available and
Comments from the manufacturer applauded EPA for not including the servicing of existing products with Class I refrigerants in this rulemaking and stated that banning use of CFCs for servicing would be unfair to consumers who opt for repairing older appliances. EPA agrees with the commenters' statements about not including servicing of existing products, and has not done so in this rulemaking. Under section 608 of the Act, EPA has issued requirements pertaining to the service, maintenance, repair, and disposal of these appliances.
Another commenter noted that while EPA clearly states that this proposed addition of air-conditioning and refrigeration appliances covers the sale and distribution of new products, it is unclear with regards to used products (64 FR 31778). The commenter believes this is so since regulatory language at § 82.66 did not provide specific reference to new products but rather bans classes of products. The commenter alleges that the language “any air-conditioning or refrigeration appliance which contains a Class I substance used as a refrigerant” could imply that all are banned, not just new. EPA disagrees with this commenter's interpretation. The Agency stated previously, and with regard to all products covered under the Class I and Class II Bans, that the effectiveness of these regulations is limited to all sales and distribution in interstate commerce up to and including the sale to the ultimate end user, but that the ban does not extend to a resale of the products after a period of use. EPA previously stated on December 30, 1993, that the resale of used products means a sale, by a person after a period of use other than demonstration use. The Agency recognizes that more than one consumer often derives utility from owning and using certain durable goods and therefore stated (58 FR 69643) that:
Therefore, EPA believes that the language at § 82.66 has been properly constructed and is consistent with EPA's past approach under the 610 ban. EPA believes that the interpretation of interstate commerce remains as including the entire chain of sale and distribution from the manufacturer of a new product to its ultimate consumer but does not extend to any resale by that initial ultimate consumer to additional consumers after some period of use has occurred.
EPA received a comment from the Department of the Navy on behalf of the Department of Defense (DoD) that generally supported the proposed regulations as drafted. However, the Navy asked to clarify whether their interpretation of the term “appliance,” consistent with section 601 of the Act and previously promulgated at 40 CFR part 82, subpart F was also the definition used with regard to this action. Section 601 of the Act states that an appliance is used for “household or commercial purposes.” Therefore, EPA has previously stated in regulations implementing Section 608 of the Act that the definition of “appliance” includes “all air-conditioning and refrigeration equipment except that designed and used exclusively for military applications' (58 FR 28660). EPA continues to agree with this interpretation.
DoD stated that while it has aggressively sought to eliminate Class I ozone-depleting substances from military equipment, in some cases equipment using Class I ozone-depleting substances is still being procured until suitable substitutes are fully qualified and new equipment or equipment modifications are available. For example, the Department of the Navy was scheduled to take delivery of its final CFC-114 shipboard chillers in early 2000. Additional chillers using non-ozone-depleting refrigerants are in the final qualification process and according to the comment, were scheduled for delivery late in 2000. The comment further stated that the existing chillers that use CFC-114 are to be converted to a non-ozone-depleting substance within the next few years. EPA applauds the efforts of DoD to replace the uses of all ODSs. EPA reminds DoD that the section 608 codified language limits the exemption of military appliances to those that are designed and used “exclusively” for military applications. EPA believes DoD will be able to find suitable substitutes for all ODS use in a timely manner.
EPA received two comments regarding metered dose inhalers (MDIs). EPA specifically noted in the preamble to the proposed rule (64 FR 31778) that:
EPA is not proposing any changes to the exemption for medical devices that are determined to be essential by the Food and Drug Administration and are listed at 21 CFR 2.125(e). Products such as metered dose inhalers (MDIs) are listed at 21 CFR 2.125(e). The Class I Ban will continue to provide an exemption for the sale and distribution or offer of sale or distribution in interstate commerce of MDIs that release Class I substances into the environment, as well as any other essential medical device listed at 21 CFR 2.125(e).
The first commenter stated that EPA should not permit the marketing and sales of CFC-containing MDIs that “do not themselves qualify under the Act for essential use allowances under section 604.” The commenter believes that “while the agency has consistently urged the FDA not to approve new CFC-MDIs, the EPA fails to prohibit marketing of new CFC-containing MDIs under section 610 even though it is well within the authority, if not the mandate, of the agency to do so.” EPA notes that the proposed changes in the June 14, 1999, NPRM did not contemplate any changes with regard to the FDA linked exemptions. EPA disagrees with this commenter's interpretations. EPA regularly consults with the FDA to authorize production of limited quantities of Class I substances for use in medical devices, including MDIs, as specified under section 604(d) of the Act. However, EPA defers to FDA on all medical judgments pertaining to approval of new medical products, including MDIs. EPA has neither the authority nor the medical expertise, to consult with FDA on such matters and has never urged the FDA to not approve new CFC-MDIs. EPA continues to believe that the most appropriate means for linking these rules is through cross reference to 21 CFR 2.125(e) where any medical device, including but not limited to MDIs, is listed as essential.
EPA received a second comment regarding MDIs. This commenter stated that to be a medical device under section 601(8) of the Act, a product must be approved and determined to be essential by the FDA Commissioner. The commenter stated that FDA may move the list of essential uses to another section and suggested that EPA “take this opportunity now to amend its section 610 implementing regulations so as to except products deemed essential by FDA under the CAA—rather than refer to 21 CFR 2.125(e).” The commenter recommended that § 82.66(d)(2)(i) should be amended to read: “medical devices determined to be essential by the Food and Drug
EPA proposed a 60-day effective date for this rulemaking, but discussed the possibility of a longer time frame if necessary. EPA received two comments supporting the proposed effective date for the amendments. However, these two comments, as well as an additional comment, raised concerns regarding products that were already manufactured and placed into inventory prior to the effective date. One commenter stated that the effective date for the provisions on air-conditioning and refrigeration products should be based on the date of import for goods that are imported, and based on date of manufacture for goods that are produced domestically. The commenter stated that this was necessary to allow for goods already in inventory to be sold or distributed. However, the commenter states that the general effective date for the rulemaking should be 60 days from the date of publication of the final rule in the
EPA recognizes the concerns with products that have already been manufactured and placed into initial inventory. Given that the ban is on all sales and distribution of all products until the sale to the ultimate end user, EPA has in previous rulemakings promulgated under section 610 of the Act, permitted products that are manufactured and placed into initial inventory by a specific date to be “grandfathered” and thus sold and distributed in interstate inventory. Through this rulemaking, EPA is establishing a provision to permit air-conditioning and refrigeration appliances containing a Class I substance as a refrigerant that are placed into initial inventory by January 14, 2002 to continue to be sold and distributed through sale to the ultimate consumer. As with all provisions of the ban, this provision includes both products manufactured in the United States and those manufactured abroad and subsequently imported into the United States, as well as products manufactured domestically for export.
EPA received a comment raising concerns about existing inventories regarding a specific type of integral skin foam used in commercial aviation that will now be covered by the ban based on today's action. EPA agrees with this commenter's concerns about such previously manufactured products and is adding a similar provision to also grandfather existing inventories of completely manufactured products. These products must be manufactured and placed into initial inventory by January 14, 2002 to qualify for the grandfathering provision.
To ensure consistent interpretation regarding what is meant by initial inventory, EPA is restating in this FRM the interpretation provided in the preamble to the December 30, 1993 FRM. EPA stated that initial inventory means “that the original product has completed all of its manufacturing processes and is ready for sale by the manufacturer (e.g., the foam is manufactured).” The Agency further clarified that “that product may be subsequently incorporated into another product by a different manufacturer after purchase.” To continue selling products after the effective date of the provisions, the manufacturer or distributor “must be able to show, upon request by EPA, that the product was in fact manufactured, and thus placed into initial inventory.” EPA stated that shipping forms, lot numbers, manufacturer date stamps or codes, invoices, or the like are normally kept records that could be maintained from the time the product was put into initial inventory as proof of the date a product was placed into initial inventory (58 FR 69661).
To facilitate consistent understanding, through this action, EPA is adding to its list of definitions, a definition of “initial inventories” as defined above. Products that are manufactured and placed into initial inventories by January 14, 2002 may continue to be sold and distributed in interstate commerce, not withstanding the 610 ban.
Through this action, EPA is today amending the current regulations that implement the statutory ban on nonessential products. EPA is replacing the previous list of banned plastic foam products with a more encompassing prohibition that exempts only one particular foam product used to provide thermal protection to external tanks for space vehicles. EPA is also amending the list of banned products to include any air-conditioning or refrigeration appliances that contain a Class I substance used as a refrigerant. In addition, EPA is adding definitions of space vehicles and initial inventories to the definitions section of the regulation and is exempting air-conditioning and refrigeration products, as well as integral skin foam used in the commercial aviation industry, when such products are fully manufactured and placed into initial inventory by a specific date.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether this regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
It has been determined by OMB and EPA that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review under the Executive Order.
After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities, and that it is therefore not necessary to prepare a regulatory flexibility analysis for this final rule. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to
This final rule will not have a significant economic impact on a substantial number of small entities for the following reasons. First, as discussed elsewhere in this preamble, acceptable substitutes for CFCs are widely available and currently used by domestic manufacturers for the applications covered by this rule. Second, the rule affects the use of CFCs only. Except for a limited number of essential uses (e.g., Metered Dose Inhalers), production and importation of CFCs has been prohibited in the United States since January 1, 1996. Since production ceased, inventories have been dwindling. The information the Agency has reviewed, indicates that CFCs are primarily being used to service existing equipment such as older automobile air conditioners. EPA believes it very unlikely that there is any significant use of CFCs in manufacturing new products affected by this rulemaking by any businesses, large or small. In addition, EPA's contacts with manufacturers and organizations representing these manufacturers supports the view that there is little if any ongoing manufacturing of products using Class I substance. In developing information for this and other rulemakings, except where noted in the response to comments in today's action, EPA did not encounter any manufacturers large or small that are continuing to use Class I substances in their products. Moreover, in the few exception cases (see preamble III. Summary and Response to Comments), EPA was able to accommodate most of the commenters' concerns, notably by including provisions to “grandfather” existing inventories of products already manufactured and placed in initial inventories, allowing these existing inventories to be sold. The findings in the development of this rulemaking and others are in keeping with EPA's view that non-Class-I substitutes are widely used and available, and that the transition away from Class I substances for the affected products is essentially complete.
Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”) (signed into law on March 22, 1995) requires that the Agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Section 203 requires the Agency to establish a plan for obtaining input from and informing, educating, and advising any small governments that may be significantly or uniquely affected by the rule. Section 204 requires the Agency to develop a process to allow elected state, local, and tribal government officials to provide input in the development of any action containing a significant Federal intergovernmental mandate. Under section 205 of the Unfunded Mandates Act, the Agency must identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a budgetary impact statement must be prepared. The Agency must select from those alternatives the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule, unless the Agency explains why this alternative is not selected or the selection of this alternative is inconsistent with law.
Because this final rule is estimated to result in the expenditure by State, local, and tribal governments or the private sector of less than $100 million in any one year, the Agency has not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most cost-effective, or least burdensome alternative. Because small governments will not be significantly or uniquely affected by this rule, the Agency is not required to develop a plan with regard to small governments. Finally, because this FRM does not contain a significant intergovernmental mandate, the Agency is not required to develop a process to obtain input from elected state, local, and tribal officials.
This action requires no information collection subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and therefore no information collection request will be submitted to OMB for review.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This final rule does not have federalism implications within the meaning of Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule alters the applicability of the Class I Ban to certain ozone depleting substances but does not impose any enforceable duties on the states or local governments. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
The National Technology Transfer and Advancement Act of 1995 (NTTAA), section 12(d), Public Law 104-113, requires federal agencies and departments to use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. If use of such technical standards is inconsistent with applicable law or otherwise impractical, a federal agency or department may elect to use technical standards that are not developed or adopted by voluntary consensus standards bodies if the head of the agency or department transmits to the Office of Management and Budget an explanation of the reasons for using such standards.
This final rule does not mandate the use of any technical standards; accordingly, the NTTAA does not apply to this rule.
This final rule is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action as defined in Executive Order 12866 and because it does not involve decisions on environmental health risks or safety risks that may disproportionately affect children.
On January 1, 2001, Executive Order 13084 superseded by Executive Order 13175. However, this rule was developed during the period when Executive Order 13084 was still in force, and so tribal considerations were addressed under Executive Order 13084. Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Under section 307(b)(1) of the Clean Air Act, EPA hereby finds that these regulations are of national applicability. Accordingly, judicial review of this action is available only by the filing of a petition for review of this action in the United States Circuit Court of Appeals for the District of Columbia Circuit within 60 days of publication. Under section 307(b)(2) of the Act, the requirements that are the subject of today's rule may not be challenged later in judicial proceedings brought to enforce these requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Chemicals, Exports, Government procurement, Imports, Labeling, Reporting and recordkeeping requirements.
42 U.S.C. 7414, 7601, 7671-7671q.
Initial Inventory means that the original product has completed all of its manufacturing processes and is ready for sale by the manufacturer. Products in initial inventory may be subsequently incorporated into another product by a different manufacturer after purchase. To continue selling products after the effective date of the provisions, the manufacturer or distributor must be able to show, upon request by EPA, that the product was in fact manufactured, and thus placed into initial inventory prior to the effective date. Shipping forms, lot numbers, manufacturer date stamps or codes, invoices, or the like are normally kept records that could be maintained from the time the product was put into initial inventory and may be used to demonstrate when a product was placed in initial inventory.
Space Vehicles means a man-made device, either manned or unmanned, designed for operation beyond earth's atmosphere. This definition includes integral equipment such as models, mock-ups, prototypes, molds, jigs, tooling, hardware jackets, and test coupons. Also included is auxiliary equipment associated with test, transport, and storage, which through contamination can compromise the space vehicle performance.
(h) Any person may sell or distribute, or offer to sell or distribute, in interstate commerce, at any time, any air-conditioning or refrigeration products specified as nonessential in § 82.66(e) that are manufactured and placed into initial inventory by January 14, 2002.
(i) Any person may sell or distribute, or offer to sell or distribute, in interstate commerce, at any time, any integral skin foam products manufactured with a Class I substance for use in commercial aviation and specified as nonessential in § 82.66(c) that are manufactured and placed into initial inventory by January 14, 2002.
The additions and revisions read as follows:
(c) Any plastic foam product which is manufactured with or contains a Class I substance; except any plastic foam product blown with CFC-11, but which contains no other Class I substances and where this product is used to provide thermal protection to external tanks for space vehicles;
(d) * * *
(e) Any air-conditioning or refrigeration appliance as defined in CAA 601(l) that contains a Class I substance used as a refrigerant.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for
We solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation and our approaches for handling any future habitat conservation plans. We may revise this proposal prior to final designation to incorporate or address new information received during the comment period.
We will accept comments until January 14, 2002. Public hearing requests must be received by December 31, 2001.
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
Connie Rutherford, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, telephone 805/644-1766; facsimile 805/644-3958.
Seed production in
The disc achenes usually fall from the receptacle to the ground below the parent plant, while the ray achenes are enclosed in a sticky glandular phyllary (leaf-like structure) which aides dispersal by attaching to animals. Those animals likely to assist in seed dispersal include, but are not limited to, mule deer (
The
The extent of seed bank reserves is variable from population to population. At the Twin Lakes population in Santa Cruz, the seed bank density averaged 240 seeds per square meter (m
Management activities can affect the balance between the number of standing plants and the extent of seed bank reserves. Burning, mowing, and scraping habitat for
Habitat for
In the Santa Cruz area,
In Santa Cruz County, where most of the remaining native occurrences of
Because the soils where
Today, the Santa Cruz tarplant is associated most frequently with grasses such as non-native wild oat (
The distribution of
Along Monterey Bay in Santa Cruz and Monterey Counties, approximately 13 populations are extant. According to CNDDB, an additional nine populations along the Monterey Bay have been extirpated by development, most recently in 1993 when a population in Watsonville (Anna Street site) was destroyed during construction of office buildings and a parking lot (CDFG 1993 and 1995a). Other populations have been in decline or have recently disappeared due to changes in grassland management that favor species which compete with
The remaining six native populations occur around the city of Watsonville. Four of these are bounded generally by Corralitos Creek, Harkins Slough, Watsonville Slough, and the city of Watsonville; they may represent remnants of a larger population. These four populations, with their number of standing plants and year of the most recent survey are: Watsonville Airport, 4 million (2000); Harkins Slough, 15,000
The other eight existing populations of
Several agencies have taken the initiative to undertake efforts to enhance habitat for
Several proposed development projects will impact habitat for
As has been observed at the Watsonville Airport, human activities, such as mowing and cattle grazing can favor the abundance of
Based on the presence of other fragments of remaining coastal terrace prairie habitat, we believe that other populations of
Non-native species that have invaded and threaten habitat supporting native populations of
Federal action on this plant began when the Secretary of the Smithsonian Institution, as directed by section 12 of the Act, prepared a report on those native U.S. plants considered to be endangered, threatened, or extinct in the United States. This report (House Doc. No. 94-51), was presented to Congress on January 9, 1975, and included
In 1978, amendments to the Act required that all proposals over two years old be withdrawn. A one-year grace period was given to those proposed rules already more than two years old. Later, on December 10, 1979, we published a notice (44 FR 70796) of the withdrawal of the portion of the June 16, 1976, proposed rule that had not been made final, along with four other proposed rules that had expired. We published an updated notice of review (NOR) for plants on December 15, 1980 (45 FR 82480). This notice included
On February 15, 1983, we published a notice (48 FR 6752) of our prior finding that the listing of
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. At the time
On June 17, 1999, our failure to issue final rules for listing
Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.
In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (
When we determine critical habitat at the time of listing, as required under section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas that are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat using the best information available to us.
Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species.
Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species Act, published in the
Habitat is often dynamic, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.
As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the survival and recovery of
Much of what is known about the specific physical and biological requirements of
In accordance with section 3(5)(A)(I) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: space for individual and population growth, and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
Based on our knowledge to date, the primary constituent elements for
(1) Soils associated with coastal terraces prairies, including the Watsonville, Tierra, Elkhorn, Santa Inez, and Pinto series.
(2) Plant communities that support associated species, including native grasses such as
(3) Physical processes, particularly soils and hydrologic processes, that maintain the soil structure and hydrology that produce the seasonally saturated soils characteristic of
We identified critical habitat areas essential for the conservation of
The long-term survival and recovery of
In our delineation of the critical habitat units, we believe it is important to propose all areas that are currently support native populations of
With regard to the experimental seeded populations of
Even though we do not have sufficient information at this time to propose sites other than where populations are currently known to occur, this does not signal that habitat outside the designation is unimportant or may not be required for recovery of the species. Areas that support newly discovered populations in the future, but are outside the proposed critical habitat designation, will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act, as determined on the basis of the best available information at the time an action is being proposed.
The proposed critical habitat units were delineated by creating data layers in a geographic information system (GIS) format of the areas of known occurrences of
In selecting areas of proposed critical habitat we made an effort to avoid developed areas, such as housing developments, that are unlikely to contain the primary constituent elements or otherwise contribute to the conservation of
The proposed critical habitat areas described below constitute our best assessment at this time of the areas needed for the conservation and recovery of
A brief description of each critical habitat unit is given below:
Unit A consists of grassland habitat on sloping alluvial deposits from old marine terraces within Wildcat Regional Park in Contra Costa County. This entire unit of approximately 61 ha (150 ac) is on lands managed by the East Bay Regional Park District (EBRPD). Management activities at this site include controlled grazing, removal of invasive artichoke thistle, and annual population monitoring (EBRPD 1992 and 2001). Of the 22 sites that were used as sites to introduce
Unit B consists of grasslands on a relatively flat coastal terrace prairie on the west side of Graham Hill Road, approximately 1 mile north of the city of Santa Cruz in Santa Cruz County. This entire unit of approximately 12 ha (30 ac) is on privately owned lands. The unit includes a 7 ha (17 ac) area that has been set aside for conservation of coastal prairie habitat and
Unit C consists of grasslands on a relatively flat coastal terrace prairie within De Laveaga Park just north of the city of Santa Cruz in Santa Cruz County. This entire unit of approximately 3 ha (7 ac) is on State lands managed by the California Army National Guard (CANG) and supported by Federal funds from the National Guard Bureau. CANG does not anticipate undertaking any new activities on this parcel, and is currently developing a management plan for
Unit D consists of grasslands on a relatively flat coastal terrace prairie within an open space preserve just north of Woods Lagoon in the City of Santa Cruz. This entire unit of approximately 26 ha (65 ac) is on lands owned and managed by the City of Santa Cruz. It is bounded on the west, east, and north sides by existing development and on the south side by the Santa Cruz Harbor. Huge population fluctuations have occurred on this site, ranging from 100,000 individuals in the late 1980s when the site was being grazed by cattle, to only a few hundred individuals 4 or 5 years later. The City entered into an MOU with CDFG in 1997 to manage
Unit E consists of grasslands on relatively flat coastal terrace prairie just north of Schwan Lagoon within the City of Santa Cruz. This entire unit of approximately 10 ha (26 ac) is on lands owned by the California Department of Parks and Recreation (CDPR) within Twin Lakes State Park. It is bounded on the west, north, and east sides by existing development, and on the south side by Schwan Lagoon. Since 1997, CDPR has been actively managing
Unit F consists of sloping alluvial deposits and adjacent relatively flat coastal terrace prairie that straddles the Arana Gulch and Rodeo Gulch drainages north of the community of Soquel in Santa Cruz County. It is bounded on the north, east and south sides by existing development; the western side is bounded by lands that have not been developed. This entire unit of approximately 11 ha (27 ac) is on privately owned lands. This unit includes a parcel that has recently been proposed for a housing development known as Santa Cruz Gardens Subdivision Unit 12 (Denise Duffy and Associates 2001); this parcel was previously set aside in a “temporary open space easement” as mitigation for destroying a portion of the
Unit G consists of grasslands on sloping alluvial deposits and adjacent relatively flat coastal terrace prairie that straddles Rodeo Gulch and Soquel Creek drainages north of the community of Soquel in Santa Cruz County. It is bounded on the north, east, and south sides by existing development; the western side is bounded by lands that have not been developed. Approximately 22 ha (55 ac) of this 40 ha (100 ac) unit is within Anna Jean Cummings Regional Park (also known as O'Neill Ranch), which is managed by the County of Santa Cruz, and the remaining portion is privately owned. On the park lands, the population has been fenced, and portions of the habitat for the plant is being mowed and raked in accordance with a management plan (Ecosystems West 1999; Joe Rigney, consultant, pers. comm. 2001). The County of Santa Cruz approved a housing development for the privately owned parcel (known as Tan, but now called Seacrest) in 1997. The development included an approximately 4 ha (10 ac) parcel to be set aside for conservation and a plan to manage the habitat for
Unit H consists of grasslands on gently sloping alluvial deposits derived from a coastal terrace that straddles the Bates Creek and Porter Gulch drainages north of the community of Soquel in Santa Cruz County. It is bounded on all sides by undeveloped lands. This entire unit of approximately 14 ha (35 ac) is on privately owned lands. The population of
Unit I consists of a complex of grasslands and low-lying drainages on alluvial fans and marine terraces west of the city of Watsonville in Santa Cruz County. The northern and eastern boundaries reach toward the Corralitos Creek drainage except where it runs up against existing development. The southeastern and southern boundary is formed by the Pajaro River drainage. The western boundary is formed by the Harkins Slough drainage and then generally follows Buena Vista Drive north until it intersects with the northern perimeter of the Watsonville Airport (Airport). This unit excludes paved areas of the Airport, but includes the unpaved portions surrounding the runways. This approximately 662 ha (1,634 ac) unit is partly owned by the City of Watsonville (the Airport) (approximately 135 ha (330 ac)); a small portion is under easement to the California Department of Transportation (approximately 8 ha (20 ac)); a portion is designated as a Reserve by the CDFG (approximately 16 ha (40 ac)); and the remaining portion is privately owned (approximately 504 ha (1,245 ac)). This unit overlaps in part with an area that is targeted for regional conservation planning by the CDFG. Through its Conceptual Area Protection Plan process, CDFG, along with other Federal, State, and local agencies and organizations, are is identifying opportunities to preserve sensitive species and habitats, including the Harkins Slough and Watsonville Slough wetlands and adjacent habitats (J. DeWald,
Unit J consists of open patches of grassland interspersed with golf course greens, cattle pastures, croplands, and orchards. This entire unit of approximately 450 ha (1,110 ac) consists of privately owned lands. It is the unit for which the least amount of information is available, particularly with respect to the extent of existing land uses in the area that support the primary constituent elements. The Spring Hills population of
Unit K consists of sloping terrain on the edges of a coastal terrace, just south of the Pajaro River in northern Monterey County. The population of
The approximate areas of proposed critical habitat by land ownership are shown in Table 1. Lands proposed are under private, county, State, and Federal jurisdiction.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of proposed critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, permit, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist Federal agencies in eliminating conflicts that may be caused by their proposed action(s). The conservation measures in a conference report are advisory. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation we would ensure that the permitted actions do not destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat, or adversely modify or destroy proposed critical habitat.
We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).
Activities on private, State, county, or lands under local jurisdictions requiring a permit from a Federal agency, such as a permit from the Corps under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding (e.g., National Guard Bureau or FAA funding), will continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on non-Federal and private lands that are not federally funded, authorized, or permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to evaluate briefly and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that appreciably reduce the value of critical habitat for both the survival and recovery of
To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the species is present in the area of the proposed action. When the species is present in an area, designation of critical habitat for
Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat for
(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain the coastal terrace prairie habitat. Such activities adverse to
(2) Activities that appreciably degrade or destroy coastal terrace prairie habitat, including but not limited to livestock grazing, clearing, discing, introducing or encouraging the spread of nonnative species, and heavy recreational use. As noted earlier in the rule, some form of grazing may be helpful if it maintains open habitat and decreases competition from other species.
Designation of critical habitat could affect the following agencies and/or actions: development on private lands requiring permits from Federal agencies, such as 404 permits from the U.S. Army Corps of Engineers or permits from other Federal agencies such as Housing and Urban Development, California Army National Guard activities funded by the National Guard Bureau on their lands or lands under their jurisdiction, activities of the Federal Aviation Authority on their lands or lands under their jurisdiction, the release or authorization of release of biological control agents by the U.S. Department of Agriculture, regulation of activities affecting point source pollution discharges into waters of the United States by the Environmental Protection Agency under section 402 of the Clean Water Act, construction of communication sites licensed by the Federal Communications Commission, watershed management activities of the Natural Resource Conservation Service, and authorization of Federal grants or loans. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure a permit to take according to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process. Several other species that are listed under the Act occur in the same general areas as
If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (see
Currently, no habitat conservation plans (HCPs) exist that include
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation;
(2) Specific information on the amount and distribution of
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;
(5) Economic and other values associated with designating critical habitat for
(6) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods: (1) You may submit written comments and information to the Field Supervisor at the address
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 us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the
We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.
The Act provides for one or more public hearing on this proposal, if requested. Requests for public hearings must be made within 45 days of the date of publication of this proposal within the
Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the proposed rule in the
Send a copy of any comments that concern how we could make this rule easier to understand to the office identified in the
In accordance with Executive Order (EO) 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below.
(a) In the economic analysis, we will determine whether this rule will have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government.
Accordingly, in areas where the species is present, we do not expect the designation of critical habitat to have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. The designation of areas as critical habitat where section 7 consultations would not have occurred but for the critical habitat designation, may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding that are not attributable to the species listing. We will evaluate any impact through our economic analysis (under section 4 of the Act: see Economic Analysis section of this rule) Non-federal persons who do not have a Federal sponsorship of their actions are not restricted by the designation of critical habitat.
(b) This rule is not expected to create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of
(c) This proposed rule, if made final, is not expected to significantly impact entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and, as discussed above, we do not anticipate that the adverse modification prohibition resulting from critical habitat designation will have any incremental effects in areas where the species is present on any Federal entitlement, grant, or loan programs. We will evaluate any impact of designating areas where Section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis.
(d) OMB has determined that this rule may raise novel legal or policy issues and, as a result, this rule has undergone OMB review.
Under the Regulatory Flexibility Act (5 U.S.C. 601
Small entities include small organizations, such as independent non-profit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule as well as the types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.
To determine if the rule would affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (e.g., housing development, grazing, oil and gas production, timber harvesting, etc.). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. In some circumstances, especially with proposed critical habitat designations of very limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the numbers of small entities potentially affected, we also consider whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation.
Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation. In areas where the species is present, Federal agencies are already required to consult with us under section 7 of the Act on activities that they fund, permit, or implement that may affect
Even if the duty to avoid adverse modification does not trigger additional regulatory impacts in areas where the species is present, designation of critical habitat could result in an additional economic burden on small entities due to the requirement to reinitiate consultation for ongoing Federal activities. However, we have only completed a single informal conference on
When the species is clearly not present, designation of critical habitat could trigger additional review of Federal activities under section 7 of the Act. Because
Outside the existing developed areas, the projected land uses for the majority of the proposed critical habitat consist of recreation, military storage, housing development, agriculture, cattle grazing, conservation lands for natural resource values, and possible airport expansion. Of the 11 critical habitat units identified in this proposed rule, 9 consist of fewer than 10 parcels each, and 6 of these are only 3 parcels or fewer. Future development is not likely in six of these nine units because they are primarily park lands or lands dedicated to conservation. Future development has already been permitted in the remaining three of these nine units; in these cases, we are coordinating with the appropriate State, County, and City agencies. We do not anticipate that this designation of critical habitat, if finalized, will result in any additional regulatory impacts on development projects already permitted in these units, and we are not aware of any Federal activities in these units that would require consultation or reinitiation of already-completed consultations for ongoing projects. As these three units are small (35 acres or less), it is unlikely that additional development beyond that already permitted could occur here.
The two remaining units are significantly larger in acreage and therefore encompass a more diverse array of possible future land uses. At the current time, the 1,110-acre Casserly unit consists of lands primarily designated for non-commercial agriculture, and includes hobby farms, rural residences, cattle grazing, and small animal husbandry. It also includes two golf courses. Lands within this unit may be developed in the future, although we are not aware of any plans for development at this time. The 1,635-acre Watsonville unit primarily consists of lands zoned for commercial agriculture, including row crops as well as cattle grazing. The remaining portion of the unit is within the city limits of the City of Watsonville. We are aware of several possible future projects in this unit, including airport expansion, a high school development, FHWA highway projects (such as rebuilding bridges or widening freeways), and housing development. Future development projects in this area will also be affected by coastal zone permitting and other State and local planning and zoning requirements.
Several of these projects may have Federal involvement; including the airport expansion that is being funded and permitted by the FAA; a high school development that may recommend section 404 authorizations from the ACOE and an incidental take permit, pursuant to section 10(a)(1)(B) of the Act, from the Service; housing developments that may require 404 authorizations; and watershed and restoration management projects sponsored by NRCS. The requirement in section 7(a)(2) to avoid jeopardizing listed species and destroying or adversely modifying designated critical habitat may result in Federal agencies requiring certain modifications to proposed projects.
In general, two different mechanisms in section 7 consultations could lead to additional regulatory requirements. First, if we conclude, in a biological opinion, that a proposed action is likely to jeopardize the continued existence of a species or adversely modify its critical habitat, we can offer “reasonable and prudent alternatives.” Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid jeopardizing the continued existence of listed species or resulting in adverse modification of critical habitat. A Federal agency and an applicant may elect to implement a reasonable and prudent alternative associated with a biological opinion that has found jeopardy or adverse modification of critical habitat. An agency or applicant could alternatively choose to seek an exemption from the requirements of the Act or proceed without implementing the reasonable and prudent alternative. However, unless an exemption were obtained, the Federal agency or applicant would be at risk of violating section 7(a)(2) of the Act if it chose to proceed without implementing the reasonable and prudent alternatives. Secondly, if we find that a proposed action is not likely to jeopardize the continued existence of a listed animal species, we may identify reasonable and prudent measures designed to minimize the amount or extent of take and require the Federal agency or applicant to implement such measures through non-discretionary terms and conditions. However, the Act does not prohibit the take of listed plant species or require terms and conditions to minimize adverse effects to critical habitat. We may also identify discretionary conservation recommendations designed to minimize or avoid the adverse effects of a proposed action on listed species or critical habitat, help implement recovery plans, or to develop information that could contribute to the recovery of the species.
Based on our experience with section 7 consultations for all listed species, virtually all projects-including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations-can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. As we have a very limited consultation history for
As required under section 4(b)(2) of the Act, we will conduct an analysis of the potential economic impacts of this proposed critical habitat designation, and will make that analysis available for public review and comment before finalizing this designation. However, court deadlines require us to publish this proposed rule before the economic analysis can be completed. In the absence of this economic analysis, we have reviewed our previously published analyses of the likely economic impacts of designating critical habitat for similar plant species found in similar areas, especially
In summary, we have considered whether this proposed rule would result in a significant economic effect on a substantial number of small entities. It would not affect a substantial number of small entities. The entire designation involves fewer than 180 parcels; many of these parcels are located in units where likely future land uses are not expected to result in Federal involvement or section 7 consultations. Six of the 11 critical habitat units consist of park lands or lands dedicated to conservation, and future development is already permitted in 3 small units, with additional Federal involvement unlikely. Even in the other units, Federal involvement— and thus section 7 consultations, the only trigger for economic impact under this rule—would be limited to a subset of the area proposed; land use in one of these units is largely devoted to non-commercial agriculture, where there is unlikely to be any Federal involvement. In one unit, Federal activities could include Corps of Engineers permits, permits we may issue under section 10(a)(1)(B) of the Act, FAA funding and permitting of airport improvements, and voluntary watershed management and restoration projects funded by NRCS. This rule would result in required project modifications only when proposed Federal activities would adversely modify critical habitat. While this may occur, it is not expected frequently enough to affect a substantial number of small entities. Even when it does occur, we do not expect it to result in a significant economic impact, as the measures included in reasonable and prudent alternatives must be economically feasible and consistent with the proposed action. We anticipate that the kinds of reasonable and prudent alternatives we would provide can usually be implemented at very low cost. Therefore, we are certifying that the proposed designation of critical habitat for
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
(a) This rule, as proposed, will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorization. Any such activity will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat.
(b) This rule, as proposed, will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.
In accordance with Executive Order 12630, this proposed rule does not have significant takings implications, and a takings implication assessment is not required. This rule would not take private property. As discussed above, the designation of critical habitat affects only Federal agency actions; it does not provide additional protection for the species on non-Federal lands or regarding actions that lack any Federal involvement. Furthermore, the Act provides mechanisms, through section 7 consultation, to resolve apparent conflicts between proposed Federal actions, including Federal funding or permitting of actions on private land, and the conservation of the species, including avoiding the destruction or adverse modification of designated critical habitat. The species was listed on March 20, 2000. We fully expect that, through section 7 consultation, such projects can be implemented consistent with the conservation of the species; therefore, this rule would not result in a takings.
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of this critical habitat designation, with appropriate State resource agencies in California. Where the species is present, the designation of critical habitat imposes no additional restrictions to those currently in place, and therefore, has little incremental impact on State and local governments and their activities. The designations may have some benefit to these governments in that the areas essential to the conservation of these species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are identified. While this
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
We have determined we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. We published a notice outlining our reason for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a Government-to-Government basis. We have determined that there are no Tribal lands essential for the conservation of
A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (see
The author of this proposed rule is Constance Rutherford (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. In § 17.12(h) revise the entry for
(h) * * *
3. In § 17.96, as proposed to be amended at 65 FR 66865, November 7, 2000, add critical habitat for the Santa Cruz tarplant (
(b) * * *
(1) Critical habitat units are depicted for Contra Costa, Santa Cruz, and Monterey counties, California, on the maps below.
(2) The primary constituent elements of critical habitat for
(i) Soils associated with coastal terraces prairies, including the Watsonville, Tierra, Elkhorn, Santa Inez, and Pinto series.
(ii) Plant communities that support associated species, including native grasses such as
(iii) Physical processes, particularly soils and hydrologic processes, that maintain the soil structure and hydrology that produce the seasonally
(3) Critical habitat does not include existing features and structures, such as buildings, roads, aqueducts, railroads, airport runways and buildings, other paved areas, lawns, and other urban landscaped areas not containing one or more of the primary constituent elements.
(4) Critical Habitat Map Units.
(i) Data layers defining map units were created on a base of USGS 7.5′ quadrangles obtained from the State of California's Stephen P. Teale Data Center. Proposed critical habitat units were then mapped using Universal Transverse Mercator (UTM) coordinates.
(ii) Map 1—Index map follows:
(5)
(ii) Map 2-Unit A follows:
(ii) Map 3-Unit B follows:
(7)
(ii) Map 4—Unit C follows:
(8)
(9)
(10)
(11)
(12)
(i)
(ii)
(13)
(14)
(ii) Map 7—Unit H follows:
(15)
(ii)
(iii)
(iv) Map 8—Unit I follows:
(16)
(ii) Map 9—Unit J follows:
(17)
(ii) Map 10—Unit K follows:
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for
We solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal prior to final designation to incorporate or address new information received during the comment period.
We will accept comments until January 14, 2002. Public hearing requests must be received by December 31, 2001.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
2. You may also send comments by electronic mail (e-mail) to
3. You may hand-deliver comments to our Ventura Fish and Wildlife Office at the address given above.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Connie Rutherford or Tim Thomas, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile 805/644-3958).
In general, thistle taxa with heads similar to
Alice Eastwood first collected this species in 1906 and gave the location as “La Graciosa.” The town of Orcutt is likely built near the site of an old community named La Graciosa, and historic maps show the area dotted with extensive wetlands many of which no longer exist (Hendrickson 1990). However, Clifton Smith (1976) suggested that the name derived from marshes at the mouth of San Antonio Creek, named Laguna Graciosa, where the Anza expedition camped in the late 1700s. Smith's theory is plausible, since a recent occurrence of the thistle is found at the headwaters of San Antonio Creek, at Cañada de las Flores, 15 miles inland. Nevertheless, the theory that the probable type locality is near Orcutt is more accepted because maps available at the time Eastwood made her collection do not show the name Graciosa at the mouth of San Antonio Creek (Hendrickson 1990).
The Santa Maria River Valley is a broad floodplain that is bounded by Orcutt Creek along its southwestern edge, and by the Santa Maria River along its northeastern edge. Between the present-day city of Santa Maria and the coast 12 miles to the west, the valley floor is dotted with small settlements and a few oil fields, but the vast majority of the land has been converted to agriculture. A member of the Gaspar de Portola expedition to Monterey in 1769 notes that the expedition had problems getting through the Santa Maria valley because of all the marshes (Companys 1983 in Hendrickson 1990). As has been typical along the central coast of California, however, many of the valley's wetlands were drained or filled to maximize agricultural production; old maps show lakes such as Lake Guadalupe which no longer exist.
Historical collections also indicate that
One population of
The prevailing coastal winds are from the northwest, and active dune and swale systems are aligned with these winds. Deflation areas (swale areas between two parallel dunes) behind the foredunes are often at or near the water table, creating wetlands and back-dune lakes.
Soils where
There are approximately 17 known locations for
On-going threats to this species include groundwater pumping, oil field development, oil field remediation, and competition from aggressive native and non-native plants (Hendrickson 1990, California Department of Fish and Game (CDFG) 1992, 65 FR 14888). The coastal dune habitats are highly disturbed and have been invaded by non-native plant species. Invasive weeds such as
The soils associated with
The four known locations of
Two of the known locations of
Fire management practices, invasive non-native plant species, low seed productivity, and naturally occurring catastrophic events pose significant threats to the long-term survival of this species. None of the colonies are actively protected.
Until several years ago, populations of
Soil characteristics have been studied most extensively near the Gaviota population. There, the plant is restricted to Conception and Milpitas-Positas soils, which consist of acidic, fine, sandy loams (All American Pipeline Company (AAPC) 1990). A subsurface clay layer 2.5 to 90 cm (1 to 36 in) deep may serve as a reservoir of soil moisture in an area otherwise characterized by summer drought (Howald 1989). However,
The narrow coastal terrace at Gaviota is bisected lengthwise by Highway 101, a railroad, and several pipelines. Most of the habitat for
At least two decommissioning efforts will be undertaken in the near future in areas where the tarplant has been found within the last three years. These include the decommissioning of Texaco's Hollister Ranch facility pipelines that stretch from Gaviota west to Saint Augustine, and Unocal's facilities at Government Point just east of Point Conception. The County will be working with CDFG, the Service, and the California Coastal Commission to ensure appropriate measures are taken to conserve the tarplant as well as other federally listed wildlife species that occur in these areas.
Federal action on these plants began as a result of section 12 of the Act (16 U.S.C. 1531
On June 16, 1976, we published a proposal in the
We published an updated Notice of Review (NOR) for plants on December 15, 1980 (45 FR 82480). This notice included
The NOR for plants was again revised on September 27, 1985 (50 FR 39526). In this notice,
A proposed rule to list
Section 4(a)(3) of the Act, as amended, and our implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. At the time
On June 17, 1999, our failure to issue final rules for listing
Critical habitat is defined in section 3(5)(A) of the Act as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Areas outside the geographic area currently occupied by the species shall be designated as critical habitat only when a designation limited to its present range would be inadequate to ensure the conservation of the species.
Conservation is defined in section 3(3) of the Act as the use of all methods and procedures which are necessary to
In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).
When we designate critical habitat at the time of listing, as required under Section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.
Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species.
Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species' (50 CFR 424.12(e)). Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that the unoccupied areas are essential for the conservation needs. In this case, the best scientific and commercial data has demonstrated that some unoccupied areas are essential for the conservation of the species, and accordingly, we have included within this designation some areas currently unoccupied by the species.
Our Policy on Information Standards Under the Endangered Species Act, published in the
As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the conservation of
Because
Certain areas, such as the Gaviota Coast, have been the target of broader planning efforts because the presence of
The stretch of coast between Pismo Dunes State Preserve and Point Sal has recently been the focus of a regional conservation planning effort spearheaded by The Nature Conservancy (TNC) (TNC n.d.). They consider this area, referred to as the Guadalupe-Nipomo Dunes, to be one of only four out of the thirteen dune areas in California that remain relatively natural and undisturbed. Their vision document includes a four-point plan that calls for: (1) Protection of specific parcels that support floodplain habitat, the Unocal Guadalupe Oil Field, the dune scrub lands east of the State Vehicular Recreation Area, and areas where dune margins interface with agricultural and ranching lands. This area overlaps in large part with one of the proposed critical habitat units in this rule. Other measures call for: (2) ensuring the health of the dune ecosystem through eradication of non-native species, restoration of damaged areas, management of sensitive resources, and maintaining ecologic processes such as sand movement; (3) enhancement of visitor services; and (4) community outreach and education programs (TNC n.d.).
Recently, the U.S. Congress directed the National Park Service to initiate a feasibility study for the Gaviota coast to determine whether the area, or a portion of it, is eligible and suitable to be managed as a unit of the National Park System according to specific criteria, including the determination as to
These numerous initiatives and planning efforts all recognize the sensitivity of the coastal habitats and the sensitive resources along this portion of the central California coast. Due to the historic loss of the habitats that supported
Some of the critical habitat units being proposed for
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: space for individual and population growth, and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring; germination or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. All areas proposed as critical habitat for
The proposed critical habitat is designed to provide sufficient habitat to maintain self-sustaining populations of
Based on our knowledge to date, the primary constituent elements of critical habitat for
(1) Moist sandy soils associated with dune swales, margins of dune lakes and marshes, and river margins from the Guadalupe Dune complex along the coast and inland to Cañada de las Flores;
(2) Plant communities that support associated species including, coastal dune, coastal scrub, and wetland communities, particularly where the following associated species are found:
(3) Hydrologic processes, particularly the maintenance of a stable groundwater table that supports the soil moisture regime that appears to be favored by
Based on our knowledge to date, the primary constituent elements of critical habitat for
(1) Soils with a large component of sand and that tend to be acidic;
(2) Plant communities that support associated species, including maritime chaparral, particularly where the following associated species are found:
(3) Habitat directly adjacent upslope and downslope from known populations, as this species appears to spread primarily through vegetative reproduction.
Threats to the habitat of
Based on our knowledge to date, the primary constituent elements of critical habitat for
(1) Sandy soils associated with coastal terraces adjacent to the coast or uplifted marine sediments at interior sites up to 5.6 km (3.5 mi) inland from the coast; and
(2) Plant communities that support associated species, including needlegrass grassland and coastal sage scrub communities, particularly where the following associated species are found: needlegrass species, California sagebrush, coyote bush, sawtooth golden bush, and California buckwheat.
Threats to the habitat of
Special management considerations or protections may be needed to maintain the primary constituent elements for the three taxa within the units being proposed as critical habitat. In some cases, protection of existing habitat and current ecologic processes may be sufficient to ensure that populations of the plants are maintained at those sites, and have the ability to reproduce and disperse in surrounding habitat. In other cases, however, active management may be needed to maintain the primary constituent elements for the three taxa. We have outlined below the most likely kinds of special management and protection that these three taxa may require. Not all of these will apply to each plant taxon.
1. Existing soil conditions may need to be protected by avoiding activities that cause the erosion of soils from areas with slopes; on flat areas, maintaining an intact soil profile may be necessary to maintain edaphic features such as a perched water table atop a clay layer, or a horizon of permeable sandy soils on the surface layer.
2. In near-coastal areas (dunes) the supply and movement of sand along the coast must be maintained to create the mosaic of wetlands, swales, and marshes that are needed for
3. Existing hydrologic conditions may need to be protected by avoiding activities that cause a change in surface or subsurface water flows upon which the plant taxa depend.
4. The quality of water must also be maintained to keep it free from deleterious levels of herbicides or chemical or organic contaminants.
5. The associated plant communities must be maintained to ensure that the habitat needs of pollinators and dispersal agents are maintained. For some grassland areas, it may be important to maintain openings between coastal scrub communities that might otherwise encroach upon grassland patches that support
6. In all plant communities where these taxa occur, invasive, non-native species such as harding grass and veldt grass need to be actively managed. Once these grasses have become established, they cannot be removed without great expenditure of time and effort.
7. Certain areas where these taxa occur may need to be fenced to protect them from accidental or intentional trampling by humans and livestock.
The proposed critical habitat units for
We also considered the status of habitat conservation plan (HCP) efforts in proposing areas as critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take. Although “take” of listed plants is not prohibited by the Act, listed plant species may also be covered in an HCP for wildlife species. Subsection 4(b)(2) of the Act allows us to exclude from critical habitat designation areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. At the time we prepared this proposed rule, there were no approved HCPs covering any of these three species within the areas being proposed for critical habitat.
The Air Force has developed an Integrated Natural Resources Management Plan (INRMP) for VAFB. The INRMP is intended to provide an adaptive management approach to natural resource issues on the base (Tetra Tech, Inc. 1997). Although the INRMP calls for annual monitoring of
Critical habitat includes habitat throughout the species' current ranges in the United States (Santa Barbara and San Luis Obispo counties, California). Lands proposed are under Federal, State, local, and private ownership.
Throughout this designation, in selecting areas of proposed critical habitat, we made an effort to avoid developed areas, such as housing developments, and other areas that are unlikely to contribute to the conservation of
The proposed critical habitat areas described below include all of the primary constituent elements described above and constitute our best assessment at this time of the areas needed for the conservation of each of the three taxa:
Critical habitat being proposed for
A brief description of each critical habitat unit is given below:
The Pismo-Orcutt Unit consists of coastal dunes, swales, and wetlands extending from Grover City south to Mussel Point, just north of Point Sal, and then extends inland across the Santa Maria Valley to the area of Orcutt. This unit includes a portion of the Pismo Dunes State Preserve, Oceano Dunes State Vehicular Recreation Area, the Guadalupe Dunes National Wildlife Refuge, Rancho Guadalupe Dunes Preserve, and privately owned lands. In the vicinity of Orcutt, some of the private lands included in this unit have been designated as open space by the County of Santa Barbara (1998). The coastal portion of this unit contains almost all the known populations of
The Cañada de Las Flores Unit consists of marsh and wetland habitat at the head of La Cañada de las Flores, northwest of the town of Los Alamos. All of the lands in this unit are privately owned. The two known populations of
We are proposing critical habitat for
A brief description of each critical habitat unit is given below:
The Solomon Hills Unit consists of a low hill (locally known as Orcutt Hill) located southeast of the community of Orcutt and west of Highway 1. The unit includes watersheds from the ridgelines downslope to the bottoms of the nearest drainages. It supports scattered Bishop pine and live oak, along with maritime chaparral species, and has been dissected by roads, pads, and pipelines associated with oil well drilling. This entire unit is privately owned. This unit is important because it represents one of only four known locations of
The Vandenberg Unit consists of two subunits, Vandenberg West and Vandenberg East, located approximately 3 km (2 mi) apart on the southern portion of Vandenberg Air Force Base in areas that are zoned as open space (C. Gillespie, VAFB,
The Santa Ynez Mountains Unit consists of an 8-km (5 mi) long segment of the Santa Ynez Mountains between the Cañada del Coho and Arroyo Bullito drainages. Several populations of
We are proposing critical habitat for
A brief description of each critical habitat unit is given below:
Point Sal Unit consists of a portion of coastal blufftop approximately 6 km (4 mi) southeast of Point Sal. It is comprised of serpentine soils and outcrops, and supports coastal grassland vegetation along with species more typically found on outcrops. The entire unit is under the Federal jurisdiction of VAFB in an area that is zoned as open space (C. Gillespie, VAFB,
The Point Arguello Unit consists of a 5-km (3-mi) long stretch of coastal terrace habitat from near Point Pedernales, south to Rocky Point, and east to approximately the 500-foot contour line. This unit is comprised entirely of lands under Federal jurisdiction at VAFB in an area that is zoned as open space (C. Gillespie, VAFB,
The Sudden Peak Unit consists of a 5 km (3 mi) stretch of ridgeline in the western portion of the Santa Ynez Mountains west of Sudden Peak and generally includes grasslands above the 1,200-foot contour line. This unit is comprised in part of lands under Federal jurisdiction of VAFB in an area that is zoned as open space (C. Gillespie, VAFB,
The Santa Ynez Unit consists of a 9.7-km (6-mi) stretch of ridgeline of the Santa Ynez Mountains, ranging from Cañada de las Agujas east to Cañada del Agua Caliente. This unit of 495 ha (1,222 ac) is comprised entirely of privately owned lands. This unit supports two populations of
The Conception-Gaviota Unit consists of a 51.5-km (23-mi) long stretch of habitat along the coast from Point Conception, east to Gaviota, and encompasses 3,688 hectares (9,115 ac). At its widest point, this unit extends inland approximately 3.2 km (2 mi). This unit is comprised of State lands at Gaviota State Beach and lands in the process of being transferred to CDFG for the Gaviota Tarplant Preserve (about 3.5 percent), County of Santa Barbara lands at Jalama County Park (less that 1 percent), and privately owned lands (about 91 percent). This unit supports most of the known populations of
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires Federal agencies to confer with the Service on any actions that are likely to result in the destruction or adverse modification of proposed critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that the actions they fund, authorize, permit, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist Federal agencies in eliminating conflicts that may be caused by their proposed action[s]. The conservation measures in a conference report are advisory. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation we would ensure that the permitted actions do not jeopardize the continued existence of the species or destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that we believe would avoid the likelihood of jeopardizing the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat, or adversely modify or destroy proposed critical habitat.
Federal agencies are to confer with us on any action which is likely to jeopardize the continued existence of any proposed species, or result in the destruction or adverse modification of proposed critical habitat (50 CFR 402.10(a)). We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (
Activities on Federal lands that may affect
Habitat is often dynamic, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) of the Act jeopardy standard and the applicable prohibitions of section 9 of the Act, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.
Section 4(b)(8) of the Act requires us to evaluate briefly and describe within any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that appreciably reduce the value of critical habitat for both the survival and recovery of
To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 of the Act prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species. Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Designation of critical habitat in areas occupied by
Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat for
(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain the coastal dune swale, marsh, and riparian habitat within the range of
Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat for
(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the ability of the chaparral habitat to maintain a mosaic of stands in different age classes, such as maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly-timed; residential and commercial development, including road building and golf course installations; agricultural activities, including orchardry, viticulture, row crops, and livestock grazing; and vegetation manipulation such as brush clearance in the watershed upslope from
(2) Activities that appreciably degrade or destroy native maritime chaparral and oak woodland communities at interior sites, including but not limited to livestock grazing, clearing, discing, introducing or encouraging the spread of nonnative species, and heavy recreational use.
Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat for
(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the ability of the coastal terraces to maintain healthy grassland communities, such as maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly-timed; residential and commercial development, including road building and golf course installations; agricultural activities, including orchardry, viticulture, row crops, and livestock grazing, oil field development, oil contamination remediation, and construction and decommissioning of pipelines and utility corridors.
Designation of critical habitat could affect the following agencies and actions: development on private lands requiring permits from Federal agencies, such as authorization by the Corps pursuant to section 404 of the Clean Water Act, or permits from other Federal agencies; activities of the U.S.
Several other species that are listed under the Act occur in the same general areas as
If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (see
Currently, no habitat conservation plans (HCPs) exist that include
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of including such areas as critical habitat. We cannot exclude areas from critical habitat if the exclusion will result in the extinction of the species. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation;
(2) Specific information on the amount and distribution of
(3) Land use practices and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;
(5) Economic and other values associated with designating critical habitat for
(6) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in
If you wish to comment on this proposed rule, you may submit your comments and materials by any one of several methods (see
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 may withhold from the rulemaking record a respondent's identity, to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule following publication in the
We will consider all comments and information received during the 60-day public comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.
The Act provides for one or more public hearings on this proposal, if requested. Requests for public hearings must be made within 45 days of the date of publication of this proposal in the
Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the proposed rule in the
Please send any comments that concern how we could make this notice easier to understand to the Field Supervisor, Ventura Fish and Wildlife Office (see
In accordance with Executive Order (EO) 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below. We are preparing a draft analysis of this proposed action, which will be available for public comment, to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the
(a) While we will prepare an economic analysis to assist us in considering whether areas should be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities. Therefore, we do not believe a cost benefit and economic analysis pursuant to EO 12866 is required.
The three species for which critical habitat is proposed were listed as endangered on March 20, 2000 (65 FR 14888). Consequently, and as needed, we will conduct formal and informal section 7 consultations with other Federal agencies to ensure that their actions will not jeopardize the continued existence of
The designation of areas as critical habitat where section 7 consultations would not have occurred but for the critical habitat designation (that is, in areas currently unoccupied by the three listed species), may have impacts that are not attributable to the species listing on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding. We will evaluate any impact through our economic analysis (under section 4 of the Act; see Economic Analysis section of this rule). Non-Federal persons who do not have a Federal sponsorship of their actions are not restricted by the designation of critical habitat.
(b) This rule is not expected to create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of
(c) This proposed rule, if made final, is not expected to significantly affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and, as discussed above, we do not anticipate that the adverse modification prohibition resulting from critical habitat designation will have any incremental effects in areas of occupied habitat on any Federal entitlement, grant, or loan programs. We will evaluate any impact of designating areas where section 7 consultation would not have occurred but for the critical habitat designation through our economic analysis.
(d) OMB has determined that this rule may raise novel legal or policy issues and, as a result, this rule has undergone OMB review.
Under the Regulatory Flexibility Act (5 U.S.C. 601
Small entities include small organizations, such as independent non-profit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule as well as the types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.
To determine if the rule would affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (e.g., housing development, grazing, oil and gas production, timber harvesting, etc.). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. In some circumstances, especially with proposed critical habitat designations of very limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the numbers of small entities potentially affected, we also consider whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation.
Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation. In areas where the species is present, Federal agencies are already required to consult with us under section 7 of the Act on activities that they fund, permit, or implement that may affect
Even if the duty to avoid adverse modification does not trigger additional regulatory impacts in areas where the species is present, designation of critical habitat could result in an additional economic burden on small entities due to the requirement to reinitiate consultation for ongoing Federal activities. However, since
When the species is clearly not present, designation of critical habitat could trigger additional review of Federal activities under section 7 of the Act, that would otherwise not be required.
Projected land uses for the majority of the proposed critical habitat consists of farming, cattle grazing, low impact recreation, military activities on VAFB, low density development, set-asides for conservation of natural resources (including Federal lands at Guadalupe-Nipomo Dune National Wildlife Refuge as well as non-federal lands), and continuing use and decommissioning of oil production facilities. On the Federal lands included in this proposed critical habitat designation, the only commercial activity that we are aware of is the leasing of several cattle grazing allotments by the Federal Penitentiary in Lompoc on VAFB lands. However, we do not consider the Penitentiary to be a small entity for this analysis.
On non-federal lands, activities that lack Federal involvement would not be affected by the critical habitat designation. Activities of an economic nature that are likely to occur on non-federal lands in the area encompassed by this proposed designation are primarily farming, cattle grazing, recreation, housing, and oil production. On lands that are in agricultural production the types of activities that might trigger a consultation include water delivery projects that may require section 404 authorizations and watershed management and restoration projects sponsored by NRCS. However the NRCS restoration projects typically are voluntary and the water delivery projects are rare and would only affect a small percentage of the small entities within this proposed critical habitat designation. Some of the lands encompassed in the Can
On lands that are currently or have been under oil production, expansion of operations or decommissioning of facilities may require section 404 authorizations from the ACOE, section 10(a)(1)(B) permits from the Service for federally listed species including the California red-legged frog, snowy plover and the tidewater goby, or approvals or funding from the EPA. Oil production activities within the area proposed as critical habitat are largely conducted by large firms, including Chevron, Unocal, Texaco, and Nuevo Energy. This rule would not affect a substantial number of small entities involved in oil production. On lands that are zoned for rural residential, some amount of development may occur which may require section 404 authorizations from the ACOE or section 10(a)(1)(B) permits from the Service for federally listed species. Projected land uses in much of these areas are continued agriculture, low-density development, and recreation. In many cases, these kinds of land uses do not require Federal permits. We are not aware of a significant number of future activities that would require Federal permitting or authorization; therefore, we conclude that the proposed rule would not affect a substantial number of small entities involved in rural development.
We also considered the likelihood that this rule would result in significant economic impacts to small entities. In general, two different mechanisms in section 7 consultations could lead to additional regulatory requirements. First, if we conclude, in a biological opinion, that a proposed action is likely to jeopardize the continued existence of a species or adversely modify its critical habitat, we can offer “reasonable and prudent alternatives.” Reasonable and prudent alternatives are alternative
Based on our experience with section 7 consultations for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. As we have a very limited consultation history for
As required under section 4(b)(2) of the Act, we will conduct an analysis of the potential economic impacts of this proposed critical habitat designation, and will make that analysis available for public review and comment before finalizing this designation. However, court deadlines require us to publish this proposed rule before the economic analysis can be completed. In the absence of this economic analysis, we have reviewed our previously published analyses of the likely economic impacts of designating critical habitat for other California plant species, such as
In summary, we have considered whether this proposed rule would result in a significant economic effect on a substantial number of small entities. It would not affect a substantial number of small entities. Many of the parcels within this designation are located in areas where likely future land uses are not expected to result in Federal involvement or section 7 consultations. As discussed earlier, most of the private parcels within the proposed designation are currently being used for agricultural purposes and, therefore, are not likely to require any Federal authorization. In the remaining areas, Federal involvement—and thus section 7 consultations, the only trigger for economic impact under this rule—would be limited to a subset of the area proposed. The most likely future section 7 consultations resulting from this rule would be for ACOE permits and EPA permits related to oil development and remediation. These consultations would likely occur on only a subset of the total number of parcels and therefore not likely to affect a substantial number of small entities. This rule would result in project modifications only when proposed Federal activities would destroy or adversely modify critical habitat. While this may occur, it is not expected frequently enough to affect a substantial number of small entities. Even when it does occur, we do not expect it to result in a significant economic impact, as the measures included in reasonable and prudent alternatives must be economically feasible and consistent with the proposed action. Therefore, since we are certifying that the proposed designation of critical habitat for
In the economic analysis we will determine whether designation of critical habitat would cause (a) any effect on the economy of $100 million or more, (b) any increases in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions in the economic analysis, or (c) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule, as proposed, will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will not be affected unless they propose an action requiring Federal funds, permits or other authorization. Any such activity will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat.
(b) This rule, as proposed, will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.
In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal agency actions. This rule will not take private property. As discussed above, the designation of critical habitat affects only Federal agency actions; it does not provide additional protection for the species on non-Federal lands regarding actions that lack any Federal involvement. Further, the Act provides mechanisms, through section 7 consultation, to resolve apparent conflicts between proposed Federal actions, including Federal funding or permitting of actions on private land, and the conservation of species, including the avoidance of destruction or adverse modification of designated critical habitat. Should projects be proposed which require Federal funding, permitting or authorization, we anticipate that, through section 7 consultation, such projects can be implemented in ways consistent with the conservation of the species and the avoidance of destruction or adverse modification to critical habitat. Therefore, this rule would not result in takings.
Landowners in areas that are included in the designated critical habitat will continue to have opportunity to utilize their property in ways consistent with the survival and recovery of
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of this critical habitat designation, with appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by
In unoccupied areas, or areas of uncertain occupancy, designation of critical habitat could trigger additional review of Federal activities under section 7 of the Act, and may result in additional requirements on Federal activities to avoid destroying or adversely modifying critical habitat. Any development that lacked Federal involvement would not be affected by the critical habitat designation. Should a federally funded, permitted, or implemented project be proposed that may affect designated critical habitat, we will work with the Federal action agency and any applicant, through section 7 consultation, to identify ways to implement the proposed project while minimizing or avoiding any adverse effect to the species or critical habitat.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
We have determined we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. We published a notice outlining our reason for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. We have determined that there are no Tribal lands essential for the conservation of
A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (see
The primary author of this proposed rule is Constance Rutherford (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. In § 17.12(h) revise the entries for
(h) * * *
3. In § 17.96, as proposed to be amended at 65 FR 66865, November 7, 2000, amend paragraph (b) by adding entries for
(b) * * *
(1) Critical habitat units are depicted for San Luis Obispo and Santa Barbara counties, California, on the maps below.
(2) The primary constituent elements of critical habitat for
(i) Moist sandy soils associated with dune swales, margins of dune lakes and marshes, and river margins from the Guadalupe Dune complex along the coast and inland to Cañada de las Flores;
(ii) Plant communities that support associated species, including coastal dune, coastal scrub, and wetland communities, particularly where the following associated species are found:
(iii) Hydrologic processes, particularly the maintenance of a stable groundwater table that supports the soil moisture regime that appears to be favored by
(3) Critical habitat does not include existing features and structures, such as buildings, roads, aqueducts, oil pads, railroads, airports, other paved areas, lawns, large areas of closed canopy chaparral, agricultural fields, and other urban landscaped areas not containing one or more of the primary constituent elements. Federal actions limited to those areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.
(4) Critical habitat map units.
(i) Township/Range/Section boundaries are based upon Public Land Survey System. Within the historical boundaries of former Spanish Land Grants, boundaries are based upon section lines that are extensions to the Public Land Survey System developed by the California Department of Forestry and obtained by the Service from the State of California's Stephen P. Teale Data Center.
(ii) Map 1-Index follows:
(5)
(i) From USGS 1:24,000 quadrangle maps Pismo Beach, Oceano, Point Sal, Guadalupe, Santa Maria, and Orcutt lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 715523,3889170; 715666,3889170; 715853,3889160; 715917,3889140; 715964,3889140; 715962,3889080; 716218,3888440; 716230,3888410; 716243,3888380; 716463,3887840; 716386,3887810; 716452,3887640; 716473,3887520; 716482,3887490; 716209,3887390; 716196,3887450; 715938,3887410; 715885,3887710; 715816,3888060; 715764,3888240; 715651,3888700; 715597,3888960; 715537,3889120; 715523,3889170; 727233,3868210; 726320,3867460;
(ii) Excluding lands bounded by: 722251,3872780; 722004,3872860; 722048,3873080; 721743,3873040; 721484,3872710; 721323,3872370; 721362,3872120; 721154,3871830; 721033,3871810; 720961,3871540; 720858,3871510; 720744,3871460; 720552,3871560; 720398,3871530; 720372,3871320; 720344,3870990; 722145,3871020; 722131,3872070; 722948,3872080; 722251,3872780.
(iii) Excluding lands bounded by: 728326,3869910; 729252,3869920; 729230,3870480; 728344,3870470; 728326,3869910.
(iv) Excluding lands bounded by: 727237,3867980; 727569,3867780; 727637,3868070; 727613,3868310; 727233,3868210;727237,3867980.
(v) Excluding lands bounded by: 726119,3867150; 726736,3866720; 726723,3866620; 727074,3866420; 727539,3866610; 727137,3866710; 727118,3867030; 727229,3867320; 727007,3867370; 726890,3867090; 726320,3867460; 726119,3867150.
(vi) Excluding lands bounded by: 729324,3864170; 729324,3864160; 730275,3864230; 730265,3864640; 729817,3864760; 729804,3864850; 729771,3864900; 729322,3864880; 729324,3864170.
(vii) Map 2 follows:
(6)
(i) From USGS 1:24,000 quadrangle map Sisquoc, lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 743242,3854050;
(ii) Map 3 follows:
Family—Asteraceae:
(1) Critical habitat units are depicted for Santa Barbara County, California, on the maps below.
(2) The primary constituent elements of critical habitat for
(i) Sandy soils associated with coastal terraces adjacent to the coast or uplifted marine sediments at interior sites up to 5.6 km (3.5 mi) inland from the coast and
(ii) Plant communities where it is associated with needlegrass grasslands, which support
(3) Critical habitat does not include existing features and structures, such as buildings, roads, aqueducts, oil pads, railroads, airports, other paved areas, lawns, large areas of closed canopy chaparral, agricultural fields, and other urban landscaped areas not containing one or more of the primary constituent elements. Federal actions limited to those areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.
(4)
(i) See Family Asteraceae: Cirsium loncholepis (La Graciosa thistle), paragraph (5)(vii) Map 2.
(ii) From USGS 1:24,000 quadrangle maps Point Sal, Guadalupe, Casmalia, lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 716072,3862070; 716140,3862150; 716181,3862170; 716202,3862190; 716221,3862240; 716255,3862290; 716355,3862330; 716441,3862380; 716489,3862410; 716602,3862410; 716686,3862400; 716745,3862420; 716777,3862520; 716843,3862570; 717002,3862500; 717111,3862450; 717211,3862420; 717333,3862470; 717437,3862360; 717391,3862150; 717467,3861980; 717433,3861750; 717459,3861620; 717417,3861540; 717361,3861540; 717287,3861510; 717257,3861500; 717213,3861430; 717183,3861450; 717124,3861480; 717073,3861500; 717045,3861530; 717027,3861570; 716980,3861610; 716926,3861630; 716872,3861650; 716852,3861630; 716813,3861620; 716792,3861620; 716731,3861630; 716682,3861660; 716641,3861670; 716630,3861680; 716635,3861710; 716605,3861720; 716585,3861710; 716563,3861720; 716542,3861740; 716528,3861780; 716530,3861810; 716510,3861830; 716486,3861830; 716445,3861850; 716428,3861870; 716409,3861890; 716373,3861900; 716342,3861900; 716310,3861900; 716296,3861900; 716297,3861930; 716274,3861950; 716261,3861970; 716180,3862030; 716072,3862070.
(5)
(6)
(7)
(8)
(9) Map 4 follows:
Family Hydrophyllaceae:
(1) Critical habitat units are depicted for Santa Barbara County, California, on the maps below.
(2) The primary constituent elements of critical habitat for
(i) Soils with a large component of sand and that tend to be acidic;
(ii) Plant communities that support associated species, including maritime chaparral, particularly where the following associated species are found:
(iii) Habitat directly adjacent upslope and downslope from known populations, as this species appear to spread primarily through vegetative reproduction.
(3) Critical habitat does not include existing features and structures, such as buildings, roads, aqueducts, oil pads, railroads, airports, other paved areas, lawns, large areas of closed canopy chaparral, agricultural fields, and other urban landscaped areas not containing one or more of the primary constituent elements. Federal actions limited to those areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.
(4)
(i) See Family-Asteraceae:
(ii) From USGS 1:24,000 quadrangle maps Lompoc Hills, Point Conception, Sacate, lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 739493,3817820; 739352,3817850; 739008,3817860; 738828,3817800; 738440,3817810; 738377,3817820; 738294,3817900; 738288,3817900; 738104,3817960; 738034,3817960; 738028,3817900; 738026,3817900; 737925,3817940; 737892,3817950; 737726,3817950; 737666,3818000; 737619,3817970; 737540,3817910; 737423,3817890; 737416,3817960; 737414,3818040; 737489,3818070; 737612,3818160; 737622,3818190; 737676,3818230; 737715,3818280; 737744,3818320; 737757,3818380; 737791,3818440; 737809,3818500; 737838,3818550; 737862,3818600; 737916,3818660; 737924,3818710; 737903,3818760; 737865,3818820; 737823,3818880; 737791,3818950; 737804,3819010; 737791,3819100; 737774,3819180; 737701,3819270; 737662,3819360; 737624,3819450; 737611,3819560; 737633,3819670; 737661,3819750; 737679,3819800; 737708,3819870; 737731,3819930; 737729,3820000; 737717,3820070; 737725,3820140; 737753,3820210; 737777,3820240; 737816,3820290; 737829,3820360; 737868,3820430; 737942,3820490; 738005,3820560; 738019,3820610; 737996,3820700; 737947,3820820; 737893,3820930; 737840,3821030; 737813,3821090; 737897,3821130; 738005,3821060; 738136,3821070; 738167,3821060; 738214,3821020; 738264,3821030; 738308,3821050; 738328,3821090; 738373,3821110; 738439,3821080; 738520,3821060; 738581,3821060; 738652,3821060; 738698,3821030; 738759,3821030; 738830,3821010; 738891,3821010; 738951,3821010; 739027,3821020; 739077,3821020; 739111,3821060; 739161,3821090; 739227,3821090; 739288,3821070; 739384,3821050; 739541,3821060; 739607,3821020; 739669,3820990; 739714,3821020; 739762,3821080; 739796,3821140; 739825,3821180; 739969,3821260; 740158,3821340; 740234,3821350; 740295,3821320; 740387,3821280; 740453,3821280; 740503,3821280; 740575,3821270; 740631,3821250; 740677,3821220; 740710,3821150; 740767,3821070; 740784,3821010; 740786,3820950; 740822,3820930; 740869,3820870; 740917,3820790; 740919,3820720; 740917,3820630; 740945,3820540; 741007,3820480; 741084,3820430; 741186,3820400; 741298,3820400; 741383,3820400; 741510,3820380; 741666,3820390; 741747,3820400; 741808,3820400; 741863,3820390; 741990,3820390; 742184,3820310; 742250,3820300; 742356,3820290; 742458,3820280; 742554,3820270; 742604,3820280; 742645,3820260; 742690,3820260; 742741,3820260; 742817,3820270; 742907,3820270; 742973,3820280; 743029,3820250; 743100,3820250; 743139,3820280; 743224,3820310; 743315,3820320; 743406,3820320; 743461,3820320; 743528,3820300; 743579,3820260; 743632,3820200; 743644,3820130; 743686,3820090; 743727,3820040; 743779,3819990; 743826,3819960; 743857,3819910; 743889,3819860; 743926,3819820; 743958,3819770; 743999,3819720; 744026,3819680; 744028,3819620; 744039,3819570; 744061,3819530; 744067,3819490; 744074,3819420; 744096,3819360; 744108,3819300; 744104,3819260; 744146,3819210; 744162,3819170; 744190,3819080; 744211,3819050; 744228,3819020; 744244,3818970; 744300,3818940; 744347,3818910; 744373,3818900; 744394,3818840; 744417,3818780; 744403,3818730; 744383,3818720; 744395,3818650; 744401,3818620; 744407,3818580; 744388,3818560; 744376,3818540; 744260,3818520; 744138,3818530; 744059,3818550; 743870,3818540; 743706,3818470; 743584,3818440; 743363,3818350; 743096,3818380; 742902,3818290; 742736,3818260; 742563,3818270; 742371,3818150; 742218,3818120; 742033,3818130; 741925,3818110; 741699,3818060; 741574,3818050; 741405,3818040; 741236,3817980; 741084,3817970; 740947,3817980; 740756,3817980; 740697,3817920; 740515,3817850; 740279,3817860; 740080,3817930; 739907,3817850; 739493,3817820.
(5)
(i) See Family Asteraceae:
(ii) From USGS 1:24,000 quadrangle map Orcutt, lands bounded by the following UTM zone 10 NAD83 coordinates (E,N): 737509, 3855480; 37459, 3855350; 737375, 3855230; 737166, 3855160; 737013, 3855120; 736836, 3855140; 736656, 3855100; 736471, 3855090; 736395, 3854960; 736258, 3854970; 736172, 3854910; 736061, 3854910; 736031, 3855160; 735966, 3855310; 735963, 3855490; 736052, 3855640; 736183, 3855800; 736258, 3855950; 736195, 3856240; 736031, 3856170; 735998, 3856080; 735887, 3855980; 735693, 3855940; 735521, 3855930; 735325, 3855970; 735168, 3855990; 735107, 3855930; 735014, 3855880; 734852, 3855950; 734450, 3855950; 734404, 3856000; 734591, 3856250; 734780, 3856480; 734889, 3856610; 734811, 3856770; 734747, 3856930; 734572, 3857050; 734537, 3857220; 734640, 3857350; 734649, 3857470; 734545, 3857540;
(6)
(i) Vandenberg East Unit. From USGS 1:24, 000 quadrangle map Surf, lands bounded by the following UTM zone 10 NAD83 coordinates (E, N): 728773, 3843190; 728752, 3843100; 728702, 3842860; 728550, 3842620; 728537, 3842430; 728563, 3842200; 728584, 3841990; 728454, 3841990; 728168, 3842190; 728011, 3842380; 727829, 3842550; 727683, 3842640; 727530, 3842740; 727417, 3842810; 727321, 3842930; 727290, 3843050; 727202, 3843400; 727064, 3843550; 726965, 3843740; 727025, 3845150; 727087, 3845130; 727157, 3845090; 727210, 3845030; 727586, 3844620; 728074, 3844050; 728279, 3843840; 728519, 3843850; 728588, 3843830; 728647, 3843790; 728684, 3843740; 728716, 3843700; 728734, 3843640; 728747, 3843540; 728751, 3843440; 728744, 3843340; 728744, 3843280; 728773, 3843190;
(ii) Vandenberg West Unit. From USGS 1:24,000 quadrangle map Surf, lands bounded by the following UTM zone 10 NAD83 coordinates (E, N): 722619, 3843000; 723176, 3842790; 723134, 3842570; 722964, 3842290; 722874, 3842160; 722696, 3842370; 722307, 3842390; 722158, 3842320; 721938, 3842410; 721930, 3842550; 721850, 3842780; 721783, 3843730; 722561, 3843830; 722552, 3843710; 722549, 3843600; 722760, 3843480; 722619, 3843000;
(iii) Map 1 follows:
Securities and Exchange Commission (“Commission”).
Proposed rule.
The Commission is proposing amendments to the rule under the Investment Company Act of 1940 that permits mergers and other business combinations between certain affiliated investment companies. The proposed amendments would expand the types of business combinations exempted by the rule, codifying the relief provided in Commission exemptive orders. The amendments also would make the rule, for the first time, available for mergers between registered investment companies and certain unregistered entities. The proposed amendments are designed to reduce burdens on investment companies by eliminating the need to obtain Commission approval while protecting investors in these companies.
Comments must be received on or before January 18, 2002.
Comments should be submitted in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 5th Street, NW, Washington, DC 20549-0609. Comments also may be submitted electronically to the following E-mail address: rule-comments@sec.gov. All comment letters should refer to File No. S7-21-01; this file number should be included on the subject line if E-mail is used. Comment letters will be available for public inspection and copying in the Commission's Public Reference Room, 450 5th Street, NW, Washington, DC 20549. Electronically submitted comment letters also will be posted on the Commission's Internet web site (
Hester M. Peirce, Senior Counsel, or Martha B. Peterson, Special Counsel, at (202) 942-0690, Office of Regulatory Policy, Division of Investment Management, Securities and Exchange Commission, 450 5th Street, NW, Washington, DC 20549-0506.
The Commission today is requesting public comment on proposed amendments to rule 17a-8 [17 CFR 270.17a-8] under the Investment Company Act of 1940 [15 U.S.C. 80a] (the “Investment Company Act” or the “Act”).
The Commission is proposing amendments to rule 17a-8 under the Investment Company Act, the rule that permits affiliated registered investment companies and series or portfolios of registered investment companies (“funds”) to merge without first obtaining an exemptive order from the Commission. Currently, rule 17a-8 permits such a merger only when the participating funds are affiliated solely because they have a common investment adviser, common directors, and/or common officers.
Section 17(a) of the Investment Company Act prohibits an affiliated person
(A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof.
15 U.S.C. 80a-2(a)(3). Unless otherwise noted, in this release, we will use the term “affiliate” to include both affiliated persons of the fund (sometimes referred to as “first-tier affiliates”) and affiliated persons of those affiliated persons (sometimes referred to as “second-tier affiliates”). Section 17(a) also reaches transactions with a promoter of or a principal underwriter for a fund and affiliated persons of a fund's promoter or principal underwriter. In this release, we will use the term “affiliates” to encompass these persons also.
Mergers
After issuing numerous exemptive orders under the statute, we adopted rule 17a-8 in 1980 to permit mergers between funds if they are affiliated solely because they have common investment advisers, officers, and/or directors.
The relief afforded by rule 17a-8, however, was conditioned upon the directors of each merging fund, including a majority of the independent directors,
Since we adopted rule 17a-8, fund mergers have been occurring with increasing frequency.
Since the adoption of rule 17a-8, and particularly in recent years, we have
Today, we are proposing to extend the rule to permit mergers between registered funds regardless of the nature of the affiliation. As discussed in more detail below, in extending relief in this manner, we would rely on the fund board (including independent directors) to scrutinize the merger, and would require the merger to be approved by the shareholders of any fund not surviving the merger. Finally, we would add a provision to rule 17a-8 designed to prevent the use of the rule to circumvent the prohibitions against affiliated transactions.
We request comment on the proposed expansion of rule 17a-8 to permit mergers between affiliated funds regardless of the nature of their affiliation. We also request comment on whether the proposed conditions of the relief under the expanded rule are sufficient to protect investors, or whether any of the conditions are unnecessary to protect investors.
Mergers of funds are governed not only by federal law, but also by state corporate or other law under which funds are organized. Those laws place substantial duties on fund directors considering a merger to act in the best interests of the fund and its shareholders.
Relief under rule 17a-8 is conditioned on a determination by the board (including a majority of independent directors) of each participating fund that the merger is in the best interests of the fund.
Mispricing is not the only problem that can arise in connection with fund mergers. A merger could result in an increase in fees and expenses borne by shareholders (despite the greater economies of scale that a merger typically will achieve),
• Direct or indirect federal income tax consequences of the merger to fund shareholders;
• Fees or expenses that will be borne directly or indirectly by the fund in connection with the merger;
• Effects of the merger on annual fund operating expenses and shareholder fees and services;
• Changes in the investment objectives, restrictions, and policies after the merger.
This list of factors is not intended to be exhaustive and none of the factors would necessarily be determinative.
We anticipate that our examinations staff, in the course of its periodic and other reviews of fund compliance, would review the board's analysis of the specific factors that we are proposing to include in rule 17a-8. In order to facilitate this review, the amended rule would continue to require that the board document its determinations and the factors underlying them in the minute books of the fund and retain the minute books as part of the record of the merger.
The Commission requests comment whether the rule should include a list of factors for consideration by a fund's board in making its determination under the rule. Alternatively, should the factors be discussed in the adopting release rather than in the rule? Should any factors be omitted or modified? Should there be additional factors?
When we adopted rule 17a-8, we assumed that shareholders of acquired funds in an affiliated merger would have an opportunity to vote on the merger. State corporation statutes that govern funds typically impose such a requirement.
We request comment on the requirement that the merger be approved by the outstanding voting securities of any fund that will not survive the merger. Are there instances in which such a vote should not be required? We request comment on whether this provision would be inconsistent with the state laws under which some funds are organized. Would it be more appropriate to defer to state law? Do these state laws anticipate issues raised by mergers of affiliated funds? Would approval by independent directors be sufficient to protect investors in these funds? In the absence of a shareholder vote, would shareholders receive sufficient advance notice of the change in their investment through a merger? Should the outstanding voting securities of the fund that will survive the merger also be required to approve the merger?
As discussed above, when we adopted rule 17a-8 in 1980, we designed the rule to be limited to affiliated mergers in which fund affiliates would not have both the ability and pecuniary incentive to affect the terms of the merger. An affiliate of one fund could have the ability to affect the terms of the merger if, for example, it held a large position in a second fund that is merging into the first fund. To prevent this, we propose to require that if an owner of more than five percent of the shares (“owner affiliate”) of the fund holding the vote is another merging fund, or an investment adviser, principal underwriter, or owner affiliate of another merging fund (“related shareholder”), the related shareholder must vote its shares in the same proportion as non-related shareholders (“echo voting”).
We propose two exceptions to the echo voting requirement.
We request comment on our echo voting proposal. Does this provision raise any issues under state law? Are protections in addition to the proposed method of echo voting needed to ensure that shareholders and their affiliates do not improperly influence the merger process? Are the two exceptions to echo voting appropriate? Should we include in the rule any other exceptions to echo voting? Should shareholders other than those specified in the proposed rule be required to echo vote?
We propose to require, as a condition of rule 17a-8, that the fund surviving the merger preserve written records that document the merger and its terms.
We are proposing to amend rule 17a-8 to also exempt mergers of funds with bank common trust funds
Funds merging with affiliated common and collective trust funds under the proposed amendments to rule 17a-8 would also have to comply with a special pricing condition.
We request comment on the expansion of rule 17a-8 to include mergers with common and collective trust funds. We also request comment on the proposal to require directors of a fund merging with an unregistered entity to approve procedures for the valuation of the assets of the unregistered entity and on the use of an independent evaluator to value the assets of unregistered entities. We request comment on whether the rule should include any additional guidelines for the selection of an independent evaluator. Should the availability of exemptive relief for mergers involving these unregistered entities be subject to any other special conditions? Should mergers with other types of unregistered entities be permitted under the rule?
Rule 17a-8 is designed to facilitate mergers between affiliated funds that will generate benefits for each participating fund and its shareholders. We are concerned, however, that non-merger affiliated transactions that would otherwise be prohibited under the Act could be structured as mergers under rule 17a-8.
We request comment on this proposed amendment to rule 17a-8. Is the proposed amendment necessary in light of section 48(a) of the Act, which prohibits a person from doing indirectly through another person what the person is prohibited from doing directly?
The Commission requests comment on the proposed rule amendments that are the subject of this release, suggestions for additional provisions or changes to the rule, and comments on other matters that might have an effect on the proposals contained in this release. The Commission encourages commenters to provide data to support their views.
The Commission is sensitive to the costs and benefits imposed by its rules. The proposed amendments to rule 17a-8 are designed to reduce costs incurred by funds and advisers by eliminating the need for Commission approval of mergers. The amendments also would supplement existing conditions of the rule, in order to ensure continued protection of fund shareholders in connection with affiliated fund mergers. The Commission has identified certain costs, which are discussed below, that may result from the proposed rule amendments. We request comment on the costs and benefits of the proposed rule amendments. We encourage commenters to identify, discuss, analyze, and supply relevant data regarding these or any additional costs and benefits.
We anticipate that funds, their shareholders, and their advisers and other affiliates would benefit from the proposed expansion of the scope of the rule to include mergers of affiliated funds, regardless of the nature of the affiliation, and mergers with common or collective trust funds. More merging funds would be able to rely on the rule and therefore would not have to obtain exemptive relief, which can be costly to merging funds, their shareholders, and their affiliates.
We believe that the proposed amendments, in addition to reducing costs faced by funds in connection with mergers, also may enhance the protections afforded by the rule to fund shareholders. We believe that the enumeration of certain factors for consideration by the board, if relevant, would assist a fund board, and particularly its independent directors, in scrutinizing a fund merger to ensure that it is in the best interests of the fund.
Merging funds that choose to rely on proposed rule 17a-8, and their advisers, would incur certain costs in complying with the rule's conditions.
The proposed amendments would eliminate the expenses of filing an exemptive application for certain merging funds.
The proposed rule is intended to ensure that boards thoroughly review merger transactions and their terms. Even in the absence of the amended rule, fund boards would meet to consider the merger.
In conjunction with the expansion of the rule to unregistered entities, we are proposing to require that fund boards establish procedures for valuing the assets held by any common or collective trust funds participating in the merger. A mandatory part of the valuation procedures would be the preparation of a report by an independent evaluator, which the staff estimates would impose an aggregate annual cost of approximately $150,000.
We anticipate that the condition in the rule requiring non-surviving funds to obtain shareholder approval would result in shareholder votes by only a few funds each year that otherwise would not have conducted shareholder votes.
The echo voting requirement is likely to cause a merging fund that conducts a shareholder vote to incur some incremental administrative costs.
We believe that the incremental costs associated with the recordkeeping
The Commission requests comment on the potential costs and benefits identified in the proposal and any other costs or benefits that may result from the proposal. We request comment on the anticipated costs and benefits of the proposed amendments to rule 17a-8 compared to the costs and benefits of the rule in its current form. For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
Section 2(c) of the Investment Company Act requires the Commission, when engaging in rulemaking that requires it to consider or determine whether an action is necessary or appropriate in the public interest, to consider whether the action will promote efficiency, competition, and capital formation.
The Commission requests comments on whether the proposed rule amendments, if adopted, would promote efficiency, competition, and capital formation. Will the proposed amendments materially affect the number of fund mergers? Will any costs that result from the proposed amendments affect efficiency, competition, or capital formation? Comments will be considered by the Commission in satisfying its responsibilities under section 2(c) of the Investment Company Act. Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
Rule 17a-8 enables affiliated investment companies to engage in mergers and similar business combinations without first obtaining from the Commission exemptive relief from section 17(a). The proposed amendments would both expand the rule's scope and include in the rule new conditions, some of which constitute new “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The Commission is submitting these proposals to the Office of Management and Budget (“OMB”) for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11.
The title for the current collection of information is “Rule 17a-8 under the Investment Company Act of 1940 [17 CFR 270.17a-8], ‘Mergers of Certain Affiliated Investment Companies.’ ” 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. The approved collection of information, which would be revised by the proposed amendments, displays control number 3235-0235. The staff believes that the proposed amendments will increase the annual hour burden associated with the rule, which is currently estimated to be 120 hours, and introduce an annual cost burden associated with the rule. The provision of information in accordance with amended rule 17a-8 would be voluntary, because rule 17a-8 is an exemptive rule and, therefore, funds may choose whether or not to rely on it. Because the proposed amendments do not require the provision of information to the Commission, this release does not address the confidentiality of responses under the proposed amendments to rule 17a-8.
The Commission staff anticipates that substantially all funds that engage in mergers with affiliated funds would rely on proposed rule 17a-8. Assuming that there will be approximately 400 mergers between affiliated funds or fund portfolios annually, we estimate that approximately 800 registered investment companies, or, in many cases, portfolios or series thereof, would be subject to the rule's information collection requirements annually.
The amended rule would require that directors of funds merging with unregistered entities
The Commission staff believes that funds will incur a cost in connection with the echo voting provision in the proposed rule. A fund that conducts a vote will have to compile a list of each owner affiliate of the fund holding the vote that is another merging fund, or an investment adviser, principal underwriter, or owner affiliate of another merging fund (“related shareholder”). The fund will then have to ensure that the securities of related shareholders are echo voted unless they are voted according to instructions from the beneficial owners or a person appointed by a named fiduciary acting on behalf of an ERISA plan. The staff estimates, based on conversations with representatives of funds and service providers, that each acquired fund will incur a cost of $5,000 in complying with this provision.
There is a cost associated with obtaining the approval of the acquired fund's outstanding voting securities. The staff estimates that shareholder approval will be sought by approximately twenty funds each year that would not otherwise have conducted a shareholder vote.
The Commission staff estimates that the paperwork burden arising from the proposed amendments reflects an increase in the paperwork burden associated with rule 17a-8 of 480 hours and an increase in the annual cost burden of approximately $3,650,000.
Persons wishing to submit comments on the collection of information requirements of the proposed rule should direct them to the Office of Management and Budget, Attention Desk Officer of the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Room 3208, New Executive Office Building, Washington, DC 20503, and should send a copy to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549-0609, with reference to File No. S7-21-01. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication of this Release; therefore a comment to OMB is best assured of having its full effect if OMB receives it within 30 days after publication of this Release. Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-21-01, and be submitted to the Securities and Exchange Commission, Records Management, Office of Filings and Information Services.
The Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”) in accordance with 5 U.S.C. 603 regarding the proposed amendments to rule 17a-8 under the Investment Company Act. The following summarizes the IRFA.
The IRFA summarizes the background of the proposed amendments. The IRFA also discusses the reasons for the proposed amendments and the objectives of, and legal basis for, the amendments. Those items are discussed above in this release.
The IRFA discusses the effect of the proposed amendments on small entities. A small business or small organization (collectively, “small entity”) for purposes of the Regulatory Flexibility Act is a fund that, together with other funds in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year.
The IRFA states that the proposed rule amendments should not have a substantial impact on small entities. Like other funds, small entities will be affected by rule 17a-8 only if they enter into a merger with an affiliate and choose to rely on the rule.
The IRFA states that Commission staff believes that the proposed rule amendments would not impose any reporting requirements on any person and would not materially increase other compliance requirements. As amended, the rule would continue to require that the board's findings and bases for those findings be recorded in the minute books of each registered company. The proposed rule would specify certain factors that the board must consider, if relevant, in connection with the finding that the merger is in the best interests of the fund. As a basis for the non-dilution finding, the board of directors of a merging fund would be required to establish procedures for valuing securities to be transferred to the fund by an unregistered entity participating in the merger. These procedures would include the preparation of a report by an “independent evaluator” setting forth the “current fair market value” of any securities to be received from an unregistered entity.
The IRFA explains that the proposed amendments could benefit funds, including small entities, by making the rule available to a greater number of merging funds. Funds that currently would have to file applications for exemptive relief could rely on the proposed rule.
The IRFA explains that the Commission has not identified any federal rules that duplicate or conflict with the proposed rule and rule amendments. The written records describing the merger and its terms that are required by the proposed rule may sometimes include some of the same records required by rules 31a-1 and 31a-2 under the Investment Company Act, but the IRFA explains that any overlap with these rules is expected to be insignificant.
The IRFA explains that the Commission has considered significant alternatives to the proposed amendments that would accomplish the stated objective, while minimizing any significant adverse impact on small entities. The Commission believes that no alternative could carry out these objectives as effectively as the proposed amendments.
The Commission encourages the submission of comments on matters discussed in the IRFA. Specifically, comment is requested on the effects the proposed rule would have on small entities and the number of small entities that would be affected. Commenters are asked to describe the nature of any effect and provide empirical data supporting the extent of the effect. These comments will be placed in the same public file as comments on the proposed rule amendments. A copy of the IRFA may be obtained by contacting Hester M. Peirce, Securities and Exchange Commission, 450 5th Street, NW, Washington, DC 20549-0506.
The Commission is proposing amendments to rule 17a-8 pursuant to the authority set forth in sections 6(c) and 38(a) of the Investment Company Act [15 U.S.C. 80a-6(c), 80a-37(a)].
Investment companies, Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 270 continues to read, in part, as follows:
15 U.S.C. 80a-1
2. Section 270.17a-8 is revised to read as follows:
(a)
(1)
(2)
(i) The board of directors, including a majority of the directors who are not interested persons of the Merging Company or of any other company or series participating in the Merger, determines that:
(A) Participation in the Merger is in the best interests of the Merging Company; and
(B) The interests of the Merging Company's existing shareholders will not be diluted as a result of the Merger.
(ii) The directors, in making the determination in paragraph (a)(2)(i)(A) of this section, consider at least the following factors, if relevant:
(A) Any direct or indirect federal income tax consequences of the Merger to the shareholders of the Merging Company;
(B) Any fees or expenses that the Merging Company will pay (directly or indirectly) in connection with the merger;
(C) Any change in fees or expenses to be paid or borne by shareholders of the Merging Company (directly or indirectly) after the Merger;
(D) Any change in services to be provided to shareholders of the Merging Company after the Merger; and
(E) Any change in investment objectives, restrictions, and policies after the Merger.
(iii) The directors, in making the determination in paragraph (a)(2)(i)(B) of this section, have approved procedures for the valuation of assets held by each Common or Collective Trust Fund participating in the merger. The approved procedures provide for the preparation of a report by an Independent Evaluator to be used to value assets acquired in connection with the Merger that sets forth the Current Fair Market Value as of the date of the Merger of each security and similar investment to be conveyed by each Common or Collective Trust Fund.
(iv) The determinations of the directors required in paragraph (a)(2)(i) of this section and the bases thereof are recorded fully in the minute books of the Merging Company.
(3)
(4)
(ii)
(iii)
(5)
(ii) Any person who acts as legal counsel for the disinterested directors is an independent legal counsel.
(6)
(7)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
By the Commission.
Securities and Exchange Commission (“Commission”).
Concept release; request for comments.
The Commission is seeking comment on various issues relating to actively managed exchange-traded funds (“ETFs”). All existing ETFs are based on various equity market indices. An actively managed ETF would not track an index. This type of ETF currently does not exist, and the Commission is interested in public comments on this concept to help inform the Commission's consideration of any proposals for actively managed ETFs.
Comments must be submitted on or before January 14, 2002.
Persons wishing to submit written comments should send three copies of the comment letter to Jonathan G. Katz, Secretary, Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Comments also may be submitted electronically at the following E-mail address:
Michael W. Mundt, Senior Special Counsel, or Nadya B. Roytblat, Assistant Director, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management, Commission, 450 Fifth Street, NW., Washington, DC 20549-0506).
The growing interest in exchange-traded funds (“ETFs”) is one of the notable developments in the area of investment management over the past few years. During the year 2000, the number of ETFs increased from 30 to 80, and the amount of assets held by ETFs nearly doubled from $34 billion to $66 billion.
ETFs are investment companies that are registered under the Investment Company Act of 1940 (“Act”) as open-end funds or UITs.
Recently, the concept of an “actively managed ETF” has attracted significant attention, even though many of the details regarding the potential operations of actively managed ETFs are apparently still in development.
Because of their unique operations, index-based ETFs first must apply to the Commission to obtain exemptive relief from certain provisions of the Act. For example, exemptive relief is necessary for index-based ETFs to redeem ETF shares only in large aggregations and for ETF shares to trade at negotiated prices in the secondary market. An actively managed ETF also would be required to obtain exemptive relief from the Act.
Before we can grant the exemptions necessary to permit the introduction of actively managed ETFs, we must conclude that the exemptions are in the public interest and consistent with the protection of investors and the purposes of the Act.
In January 1993, a subsidiary of the AMEX introduced the first ETF “the SPDR Trust. The SPDR Trust, which issues ETF shares referred to as SPDRs (pronounced “spiders”), is a UIT that tracks the Standard & Poor's 500 Composite Stock Price Index (“S&P 500 Index”) by holding substantially all of the securities in the S&P 500 Index in substantially the same weightings as in the S&P 500 Index. The trustee adjusts the portfolio of the SPDR Trust only to reflect changes in the composition of the S&P 500 Index.
In order to offer SPDRs, the SPDR Trust obtained exemptions from various provisions of the Act.
In March 1996, ETF sponsors introduced the first two ETFs organized as open-end funds. The CountryBaskets Index Fund, Inc., advised by Deutsche Morgan Grenfell/C. J. Lawrence Inc., consisted of different portfolios (“series”) that tracked various country indices of the Financial Times/S&P Actuaries World Indices.
Many ETFs organized as open-end funds replicate the holdings of their corresponding indices to track the performance of the indices. However, because ETFs organized as open-end funds employ investment advisers, some of these ETFs instead may use “sampling strategies” to track the performance of an index. Using a sampling strategy, an investment adviser can construct a portfolio that is a subset of the component securities in the corresponding index, rather than a replication of the index. The investment adviser also may acquire securities for the ETF portfolio that are not included in the corresponding index. While these ETFs still seek to track the performance of their respective indices, they have greater flexibility in accomplishing that goal. In addition, ETFs that are open-end funds are not prohibited from participating in securities lending
Regardless of the organizational structure of an ETF, all existing ETFs operate in essentially the same manner. Unlike typical open-end funds or UITs, ETFs issue shares only in large aggregations or blocks (such as 50,000 ETF shares) called “Creation Units.” An investor, usually a brokerage house or large institutional investor, may purchase a Creation Unit with a “Portfolio Deposit” equal in value to the aggregate NAV of the ETF Shares in the Creation Unit. The investment adviser or sponsor of the ETF announces the contents of the Portfolio Deposit at the beginning of each business day. The Portfolio Deposit generally consists of a basket of securities that mirrors the composition of the ETF's portfolio. Because the purchase price of the Creation Unit must equal the NAV of the underlying ETF shares, the required Portfolio Deposit generally also includes a small amount of cash to account for the difference between the value of the basket of securities and the NAV of the ETF shares. The value of a Creation Unit typically exceeds several million dollars. After purchasing a Creation Unit, the investor may hold the ETF shares, or sell some or all of the ETF shares to investors in the secondary market.
Like operating companies or closed-end funds, ETFs register offers and sales of shares under the Securities Act and list their ETF shares for trading on a national securities exchange under the Securities Exchange Act of 1934 (“Exchange Act”). As with any listed security, investors also may trade ETF shares in off-exchange transactions. In either case, ETF shares trade at negotiated prices. The development of the secondary market in ETF shares depends upon the activities of the exchange specialist assigned to make a market in the ETF shares and upon the willingness of Creation Unit purchasers to sell ETF shares in the secondary market.
ETF shares purchased in the secondary market are not redeemable from the ETF except in Creation Unit aggregations. If an investor presents a Creation Unit to the ETF for redemption, the redeeming investor receives a “Redemption Basket,” the contents of which are identified by the ETF investment adviser or sponsor at the beginning of the day. The Redemption Basket (usually the same as the Portfolio Deposit) consists of securities and a small amount of cash. As with purchases from the ETF, redemptions from the ETF are priced at NAV (
Because of arbitrage opportunities inherent in the ETF structure, ETF shares generally have not traded in the secondary market at a significant premium or discount in relation to NAV. If ETF shares begin to trade at a discount (
In addition, because the ETF investment adviser or sponsor announces the identities of the securities in the Portfolio Deposit and Redemption Basket each day, arbitrageurs also may decide to engage in arbitrage transactions based on their need for particular securities (for example, to replace borrowed securities that the arbitrageur previously sold “short”) or on their own assessment of the relative value of the Portfolio Deposit or Redemption Basket in comparison to the price of the ETF shares. As an apparent result of this arbitrage discipline, ETF sponsors and market participants report that the average deviation between the daily closing price and the daily NAV of ETFs that track domestic indices is generally less than 2%.
In exemptive applications to permit the operations of ETFs, applicants have argued that ETFs provide investors and the markets with a number of benefits. First, applicants have argued that ETFs provide investors with the opportunity to invest in a diversified basket of securities through the purchase of a
As the ETF marketplace has developed, individual investors apparently have accepted ETFs as an index investment with trading flexibility.
Institutions also may purchase ETF shares in the secondary market for a variety of reasons. For example, certain pension funds whose investment restrictions preclude investment in index derivatives may instead invest in ETF shares.
ETFs also appear to attract investors as a low-cost and tax efficient investment vehicle.
With respect to tax efficiency, ETFs reportedly offer advantages over many mutual funds. When a mutual fund sells portfolio securities to pursue its investment strategies or to generate cash for shareholder redemptions, the mutual fund may realize capital gains if the value of the securities increased while they were in the fund portfolio. A mutual fund distributes accumulated capital gains to its shareholders, and shareholders generally must pay taxes on those distributions. An ETF also may accumulate and distribute capital gains to investors. However, like index funds, an ETF may be more tax efficient than many mutual funds because of the low turnover in its portfolio securities. In addition, the ETF structure may allow an ETF to avoid capital gains to an even greater extent than index funds. Because an ETF typically redeems Creation Units of ETF shares by delivering securities in the Redemption Basket, an ETF does not have to sell securities (and possibly realize capital gains) in order to pay redemptions in cash.
As noted above, market participants are interested in developing an “actively managed ETF”—an ETF with an actively managed portfolio that does not seek to replicate the performance of any particular market index. Like existing ETFs, an actively managed ETF would be registered under the Act (as an open-end fund rather than a UIT, because a UIT cannot be managed) and would issue and redeem its shares only in Creation Units. The ETF would list its shares on a national securities exchange, and investors would trade the ETF shares throughout the day at market prices in the secondary market. As with index-based ETFs, the ability to buy and redeem Creation Units at NAV would present arbitrage opportunities if the market price of the individual ETF shares deviated from NAV.
Despite these general similarities, there may be significant structural and operational differences between the two types of products.
In addition to potential operational differences, an actively managed ETF may not have the same uses and benefits as those associated with index-based ETFs. As described above, many of the uses of existing ETFs, particularly for institutional investors, relate to the fact that ETF shares serve as a proxy for an index, which would not be the case for ETF shares of actively managed ETFs. In addition, an actively managed ETF may have greater turnover in its portfolio securities, which could result in higher expenses and less tax efficiency than index-based ETFs.
We need to consider carefully whether actively managed ETFs are in the public interest and consistent with the protection of investors and the purposes of the Act before we grant the relief necessary to allow for the introduction of these products. To facilitate this process, we are seeking public comment on a wide range of issues posed by the possible introduction of actively managed ETFs. In addition to the specific questions outlined in the following sections, we seek comment on these broad issues:
• How are actively managed ETFs likely to be structured, managed and operated?
• How will investors use, and benefit from, actively managed ETFs?
• Would the exemptive relief that the Commission has granted to index-based ETFs be appropriate for actively managed ETFs?
• Are there any new regulatory concerns that might arise in connection with actively managed ETFs?
For purposes of this release, we have assumed that any ETF that would not seek to track the performance of a market index by either replicating or sampling the index securities in its portfolio would be an actively managed ETF. Thus, actively managed ETFs would include, for example, an ETF that seeks to achieve a multiple (or the reverse) of the performance of a market index. Actively managed ETFs also would include any ETF that, although it may be using a market index as a benchmark for measuring its performance, pursues an investment objective that is not tied to the index.
Is this an appropriate way to distinguish between index-based and actively managed ETFs? Are there any reasons to distinguish between different types of actively managed ETFs? If there are different types of actively managed ETFs, are there any reasons to regulate the various types differently?
The unique structure of an ETF—in which investors can buy and redeem Creation Units at NAV, and can sell and purchase individual ETF shares in the secondary market at market price—is designed, among other things, to ensure arbitrage opportunities that would reduce any deviations between the NAV and the market price of ETF shares. The expectation that the market price of ETF shares would track NAV (and the performance of an index) is important to many of the uses of ETF shares as index-based securities. An ETF also is thought to offer advantages over a closed-end fund structure in which discounts from NAV are common. The existing ETFs, as a general matter, have not experienced significant deviations between the NAV and the market price of their ETF shares.
Is it important that ETFs be designed to enable arbitrage and thereby
It appears that two factors may contribute significantly to the effectiveness of arbitrage in the ETF structure—the transparency of an ETF's portfolio and the liquidity of the securities in the ETF's portfolio.
Existing ETFs generally create and redeem Creation Units through in-kind transactions. At the beginning of each day, the investment adviser or sponsor of the ETF makes available the identities of the securities in the Portfolio Deposit and the Redemption Basket (generally through the National Securities Clearing Corporation, a clearing agency that effects the sales and redemptions of Creation Units for many ETFs). These baskets generally reflect the contents of the portfolio of the ETF on that day and do not change during the day.
What level of transparency in portfolio holdings is necessary to allow for effective arbitrage activity in the shares of an actively managed ETF? Should an actively managed ETF be required to disclose the full contents of its portfolio? Is it sufficient for an actively managed ETF to disclose only a sample of its portfolio or the general characteristics of its portfolio? Can effective arbitrage occur without any disclosure of the specific securities in an ETF's portfolio (
How frequently would the investment adviser of an actively managed ETF need to disclose the portfolio securities or characteristics of the ETF portfolio? Would an investment adviser need to disclose intra-day changes in the portfolio of an actively managed ETF? Would there be a need to permit or require the specified Portfolio Deposit or Redemption Basket to change during the day to reflect changes in the ETF's portfolio? If so, what type of notice would be necessary to inform investors of any changes to the Portfolio Deposit or Redemption Basket in the course of a day? Are intra-day values of the Portfolio Deposit meaningful to investors if investors do not know the contents of the ETF portfolio?
Would frequent disclosure of portfolio holdings lead to “front running” of the ETF portfolio, where other investors would trade ahead of the ETF and the Creation Unit purchasers who must assemble Portfolio Deposits?
Existing ETFs track various equity indices including foreign and domestic indices, broad-based indices, and sector indices. All of the indices have specified methodologies for selecting their component securities. The methodologies generally ensure that an index consists of a certain number of component securities, and that those securities will have significant market capitalization and will be actively traded. Because ETFs either replicate or sample the indices, their portfolio securities also should possess these characteristics. Effective arbitrage depends in part upon the ability of investors to readily assemble the Portfolio Deposit for purchases of Creation Units and to sell securities received upon redemption of Creation Units. The liquidity of portfolio securities is an important factor in this process.
Should actively managed ETFs be limited to certain investment objectives or policies that are designed to ensure that the portfolio securities are sufficiently liquid to permit effective arbitrage? If so, what types of parameters are necessary to ensure that an ETF invests in securities that can be readily purchased or sold by arbitrageurs? Should an actively managed ETF be permitted to invest in securities other than equity securities? Should an actively managed ETF be permitted to invest in any illiquid securities or securities that could not be included in a Portfolio Deposit or Redemption Basket? Should an actively managed ETF be prohibited from investing in securities that are not registered under section 12 of the Exchange Act?
Is it necessary for an actively managed ETF to create and redeem Creation Units through in-kind transactions (rather than cash transactions)?
What other issues could cause an actively managed ETF to operate differently than an index-based ETF? Would the clearance and settlement procedures for Creation Unit transactions for actively managed ETFs be the same as for index-based ETFs? Are there other operational issues that could affect the willingness of investors to purchase shares of an actively managed ETF either on the secondary market or in Creation Units from the ETF? Would significant deviations
As noted, in granting exemptions under section 6(c), the Commission must find that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
In determining whether the relief we have granted to permit ETFs should be expanded to permit actively managed ETFs, we think it is appropriate to consider the uses and benefits of existing index-based ETFs, as well as any concerns regarding ETFs generally. What are the most important uses and benefits of index-based ETFs? Have index-based ETFs encountered any problems of which the Commission should be aware in evaluating future ETF proposals?
With respect to the potential for actively managed ETFs, should investors expect that any mutual fund could be transformed into an ETF, or would only certain types of actively managed portfolios lend themselves to the ETF structure? Would closed-end funds seek to convert into actively managed ETFs as a possible means of addressing discounts in share price?
What would be the principal uses of actively managed ETFs by investors? Would an actively managed ETF serve primarily as a short-term trading vehicle? Could an actively managed ETF be used to gain exposure to an asset category in a manner similar to index-based ETFs? Would an actively managed ETF have any role in hedging strategies? Would an actively managed ETF appeal more to individual investors or institutional investors?
What would be the principal benefits of actively managed ETFs? Would an actively managed ETF possess the low expenses and tax efficiency associated with existing ETFs? Would the introduction of actively managed ETFs be detrimental to investors, and if so, how? Would investors be confused about the nature of actively managed ETFs? Could actively managed ETFs lead to greater market volatility?
Because of their unique structure, ETFs must obtain exemptive relief from certain provisions of the Act. An ETF organized as an open-end fund generally requests an order (i) under section 6(c) of the Act granting relief from sections 2(a)(32) and 5(a)(1) of the Act so that the ETF may register under the Act as an open-end fund and issue shares that are redeemable in Creation Units only; (ii) under section 6(c) granting relief from section 22(d) of the Act and rule 22c-1 under the Act to permit the purchase and sale of individual ETF shares in the secondary market at negotiated prices; and (iii) under sections 6(c) and 17(b) of the Act granting relief from sections 17(a)(1) and (a)(2) of the Act to permit in-kind purchases and redemptions of Creation Units by persons who may be affiliated with the ETF by reason of owning more than 5%, and in some cases more than 25%, of its outstanding securities. Certain ETFs that track foreign indices also have obtained relief under section 6(c) from section 22(e) of the Act so that they may satisfy redemption requests more than seven days after the tender of a Creation Unit for redemption due to delivery cycles for securities in the local markets.
Because actively managed ETFs necessarily would be organized as open-end funds (rather than as UITs with fixed portfolios), these ETFs likely would seek exemptive relief from the same provisions of the Act as existing ETFs that are organized as open-end funds. In considering whether to grant relief from each of the sections outlined above pursuant to section 6(c), the Commission must find that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
Section 5(a)(1) defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer.
In support of the relief, ETFs have noted that investors may redeem ETF shares in Creation Units from each ETF. ETFs also have noted that because the market price of Creation Units is disciplined by arbitrage opportunities, investors in ETF shares generally should be able to sell ETF shares in the secondary market at approximately their NAV. ETFs organized as open-end funds have agreed as a condition to the exemptive relief that the ETF will not be advertised or marketed as an open-end fund or mutual fund. The prospectuses and advertising materials for ETFs prominently disclose that ETF shares are not individually redeemable and that shareholders may acquire shares from an ETF and tender those shares for redemption to the ETF in Creation Units only.
Would actively managed ETFs present any issues with respect to these exemptions that do not exist with respect to index-based ETFs? Should the potential for more significant deviations between the market price of actively managed ETF shares and the NAV of the shares affect any relief requested from the definition of “redeemable security”? Are greater disclosure efforts necessary to address any potential investor confusion regarding the nature of actively managed ETFs and their shares?
Section 22(d), among other things, prohibits a dealer from selling a redeemable security that is being currently offered to the public by or through an underwriter, except at a current public offering price described in the prospectus.
In support of their requests for relief, ETFs generally have noted that the provisions of section 22(d), as well as rule 22c-1, appear to be designed to prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, to prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and to assure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price. The ETFs submit that secondary market trading in ETF shares does not cause dilution for ETF shareholders because the secondary market transactions do not directly involve ETF portfolio assets (the transactions are with other investors, not the ETF), and thus have no impact on the NAV of ETF shares held by other investors. In addition, ETFs have stated that to the extent that different prices for ETF shares exist during a given trading day, or from day to day, these variances occur as a result of third-party market forces, such as supply and demand, and not as a result of discrimination or preferential treatment among purchasers. With respect to the orderly distribution of ETF shares, ETFs have noted that anyone may acquire Creation Units from the ETF, and that no dealer should have an advantage over any other dealer in the sale of ETF shares. ETFs also have argued that the distribution system for ETF shares should be orderly because arbitrage activity ensures that the difference between the market price of shares and their NAV remains narrow.
Would actively managed ETFs present any issues with respect to these exemptions that do not exist with respect to index-based ETFs? Would the potential for more significant deviations between the market price of actively managed ETF shares and the NAV of the shares create any potential for discrimination or preferential treatment among investors purchasing and selling shares in the secondary market and those purchasing and redeeming Creation Units? Would more significant deviations lead to a less orderly distribution system for actively managed ETF shares? Are greater disclosure efforts necessary to address potential investor confusion regarding the fact that individual shares of actively managed ETFs would be sold at market price while Creation Unit aggregations of ETF shares would be redeemable at NAV?
Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such person, from selling any security to or purchasing any security from the company.
In seeking this relief, ETFs have submitted that because 5% Affiliates and 25% Affiliates are not treated differently from non-affiliates when engaging in purchases and redemptions of Creation Units, there is no opportunity for these affiliated persons to effect a transaction detrimental to the other ETF shareholders. The securities to be deposited for purchases of Creation Units and to be delivered for redemptions of Creation Units are announced at the beginning of each day and are equally applicable to all investors. All purchases and redemptions of Creation Units are at an ETF's next calculated NAV, and the securities deposited or received upon redemption are valued in the same manner, using the same standards, as those securities are valued for purposes of calculating the ETF's NAV.
Would actively managed ETFs present any issues with respect to this exemption that do not exist with respect to index-based ETFs? If an actively managed ETF proposed to alter the contents of its Portfolio Deposit or Redemption Basket during the day to reflect changes in its portfolio, would this process introduce the potential to
Section 22(e) of the Act generally prohibits a registered open-end investment company from suspending the right of redemption, or postponing the date of payment or satisfaction of redemption requests more than seven days after the tender of a security for redemption.
These ETFs state in their exemptive applications that section 22(e) of the Act is designed to prevent unreasonable, undisclosed, and unforeseen delays in the payment of redemption proceeds and assert that the requested relief will not lead to the problems that section 22(e) was designed to prevent. The anticipated delays in the payment of redemption proceeds would occur principally due to local holidays in the foreign markets. The ETFs state that the SAI will disclose those local holidays (over the period of at least one year following the date of the SAI) that are expected to prevent the delivery of redemption proceeds in seven days and the maximum number of days needed to deliver redemption proceeds.
Would actively managed ETFs present any issues with respect to this exemption that do not exist with respect to index-based ETFs? Could the investment adviser to an actively managed ETF manage the ETF so as to comply with section 22(e)?
In evaluating any specific proposal for an actively managed ETF, the Commission will be considering whether the proposal presents any new regulatory concerns. In this regard, we are interested in public comment on the issues raised below, as well as any additional issues that might be identified by the commenters.
Section 1(b)(3) of the Act states that the public interest and the interest of investors are adversely affected when investment companies issue securities containing inequitable or discriminatory provisions.
Would the operation of an actively managed ETF place investors who have the financial resources to purchase or redeem a Creation Unit at NAV in a different position than most retail investors who may buy and sell ETF shares only at market price? Would the operation of an actively managed ETF give rise to a type of discriminatory treatment of shareholders that section 1(b)(3) of the Act was designed to prevent? Commenters who believe that this concern might be raised by an actively managed ETF are encouraged also to discuss the ways in which they believe the Commission should address it.
Section 1(b)(2) of the Act states that the public interest and the interest of investors are adversely affected when investment companies are organized, operated, managed, or their portfolio securities are selected, in the interest of persons other than shareholders, including directors, officers, investment advisers, or other affiliated persons, and underwriters, brokers, or dealers.
What potential conflicts of interest would exist for the investment adviser to an actively managed ETF? Would the adviser to an actively managed ETF be in a position to create supply or demand for securities that would favor an affiliate by designating those securities for inclusion in the daily Portfolio Deposit or Redemption Basket? Would the increased value of the information regarding the identity of future deposit or redemption securities create additional conflicts and potential for abuse? What measures should be taken to address any potential conflicts?
Open-end funds and UITs are required to deliver a prospectus in connection with a sale of their shares. Specifically, section 24(d) of the Act provides, in relevant part, that the prospectus delivery exemption provided to dealer transactions by section 4(3) of the Securities Act does not apply to any transaction in a redeemable security issued by an open-end fund or UIT.
In support of the relief, applicants have noted that the ETF shares would be listed on a national securities exchange and would be traded in a manner similar to shares of closed-end funds, for which dealers selling shares in the secondary market generally are not required to deliver a prospectus. These ETFs also have agreed that dealers selling their shares will provide investors with a “product description” describing the ETF and its shares.
To the extent that actively managed ETFs would seek similar relief from prospectus delivery requirements, would the relief be consistent with the public interest and the protection of investors? Are there any aspects of an actively managed ETF that would make this relief inappropriate? For example, should an actively managed ETF be required to deliver its prospectus in order to communicate its investment strategy or fundamental policies? If the relief is granted on the condition that actively managed ETFs provide investors with a product description, what information about an actively managed ETF is particularly important to include or highlight in the product description?
Open-end funds often offer multiple classes of shares representing interests in the same portfolio of securities. An open-end fund may establish a multiple class arrangement generally to offer investors a choice of methods for paying distribution costs or to allow the fund to use alternative distribution channels more efficiently. For example, a fund may offer a class of shares that carries only a front-end sales load, and another class that carries a deferred sales load and an asset-based distribution fee (known as a “rule 12b-1 fee” because it is permitted by rule 12b-1 under the Act)
A multiple class arrangement requires an exemption from sections 18(f)(1) and 18(i) of the Act.
In December 2000, the Commission issued the first order to permit certain existing index funds to create a class of shares (“ETF class”) that would be listed on a national securities exchange and traded in the secondary market at negotiated prices in the same manner as shares of ETFs (“ETF Class Order”).
In the ETF Class Order, exemptive relief from sections 18(f)(1) and 18(i) of the Act was required because, among other reasons, the index funds stated that the conventional shares and exchange-traded shares would have certain different rights.
Would actively managed mutual funds seek to introduce exchange-traded classes? Do short-term investors such as market timers and day traders use actively managed funds in the same way that they use index funds? If not, are there different reasons to permit existing actively managed mutual funds to establish ETF classes?
Would ETF classes of actively managed funds present any issues with respect to exemptions from section 18 that do not exist with respect to ETF classes of index funds? Would the portfolio disclosure required to make fund operations transparent for
Is there additional potential for investor confusion about the nature of the ETF class shares? How would potential investor confusion be addressed? Would prospectus delivery relief be appropriate in connection with ETF classes of actively managed funds, and if so, what information should be included in the product description?
In addition to the areas for comment identified above, we are interested in any other issues that commenters may wish to address relating to actively managed ETFs. Please be as specific as possible in your discussion and analysis of any additional issues.
By the Commission.