Agricultural Marketing Service
Animal and Plant Health Inspection Service
Commodity Credit Corporation
Farm Service Agency
Forest Service
National Agricultural Statistics Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
Census Bureau
Economic Development Administration
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Patent and Trademark Office
Navy Department
Energy Efficiency and Renewable Energy Office
Presidential Documents
Food and Drug Administration
Coast Guard
Fish and Wildlife Service
National Park Service
Drug Enforcement Administration
Justice Programs Office
Employee Benefits Security Administration
Employment and Training Administration
Labor Statistics Bureau
National Agricultural Statistics Service
Federal Aviation Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule revises the handling requirements for California nectarines and peaches by modifying the grade, size, maturity, and container requirements for fresh shipments of these fruits, beginning with 2003 season shipments. This rule also continues a modification of the requirements for placement of Federal-State Inspection Service lot stamps for the 2003 season, establishes a net weight for a style of containers and exempts those containers from the well-filled requirement, and revises the weight-count standards for Peento type peaches. The marketing orders regulate the handling of nectarines and peaches grown in California and are administered locally by the Nectarine Administrative and Peach Commodity Committees (committees). This rule would enable handlers to continue shipping fresh nectarines and peaches meeting consumer needs in the interests of producers, handlers, and consumers of these fruits.
Effective April 10, 2003. Comments received by June 9, 2003, will be considered prior to issuance of any final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or e-mail:
Terry Vawter, Marketing Specialist, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California, 93721; telephone (559) 487-5901, Fax: (559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491; Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or e-mail:
This rule is issued under Marketing Agreement Nos. 124 and 85, and Marketing Order Nos. 916 and 917 (7 CFR parts 916 and 917) regulating the handling of nectarines and peaches grown in California, respectively, hereinafter referred to as the “orders.” The orders are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
Under the orders, lot stamping, grade, size, maturity, container, container marking, and pack requirements are established for fresh shipments of California nectarines and peaches. Such requirements are in effect on a continuing basis. The Nectarine Administrative Committee (NAC) and the Peach Commodity Committee (PCC), which are responsible for local administration of the orders, met on December 3, 2002, and unanimously recommended that these handling requirements be revised for the 2003 season, which begins about the first or second week of April. The changes: (1) Continue the lot stamping requirements which have been in effect since the 2000 season; (2) authorize shipments of “CA Utility” quality fruit to continue during the 2003 season; (3) revise weight-count standards for the Peento type peaches; (4) establish a net weight for all five-down containers and exempt those containers from the well-filled requirement; and (5) revise varietal maturity, quality, and size requirements to reflect changes in growing and marketing practices.
The committees meet prior to and during each season to review the rules and regulations effective on a continuing basis for California nectarines and peaches under the orders. Committee meetings are open to the public and interested persons are encouraged to express their views at these meetings. The committees held
No official crop estimate was available at the time of the committees' meetings because the nectarine and peach trees were dormant. The committees will recommend a crop estimate at their meetings in early spring. However, preliminary estimates indicate that the 2003 crop will be similar in size and characteristics to the 2002 crop, which totaled 23,230,000 containers of nectarines and 22,124,000 containers of peaches.
Sections 916.55 and 917.45 of the orders require inspection and certification of nectarines and peaches, respectively, handled by handlers. Sections 916.115 and 917.150 of the nectarine and peach orders' rules and regulations, respectively, require that all exposed or outside containers of nectarines and peaches, and at least 75 percent of the total containers on a pallet, be stamped with the Federal-State Inspection Service (inspection service) lot stamp number after inspection and before shipment to show that the fruit has been inspected. These requirements apply except for containers that are loaded directly onto railway cars, exempted, or mailed directly to consumers in consumer packages.
Lot stamp numbers are assigned to each handler by the inspection service, and are used to identify the handler and the date on which the container was packed. The lot stamp number is also used by the inspection service to identify and locate the inspector's corresponding working papers or field notes. Working papers are the documents each inspector completes while performing an inspection on a lot of nectarines or peaches. Information contained in the working papers supports the grade levels certified to by the inspector at the time of the inspection.
The lot stamp number has value for the industries, as well. The committees utilize the lot stamp number and date codes to trace fruit in the container back to the orchard from which it was harvested. This information is essential in providing quick information for a crisis management program instituted by the industries. Without the lot stamp information on each container, the “trace back” effort, as it is called, would be jeopardized.
Over the last few years, several new containers have been introduced for use by nectarine and peach handlers. These containers are returnable plastic containers (RPCs). Use of RPCs may represent substantial savings to retailers for storage and disposal, as well as for handlers who do not have to pay for traditional, single-use, containers. Fruit is packed in the containers by the handler, delivered to the retailer, emptied, and returned to a central clearinghouse for cleaning and redistribution to the handler. However, because these containers are designed for reuse, RPCs do not support markings that are permanently affixed to the container. All markings must be printed on cards that slip into tabs on the front or sides of the containers. The cards are easily inserted and removed, and further contribute to the efficient reuse of RPCs.
The cards are a continuing concern for the inspection service and the industries because of their unique portability. There is some concern that the cards on pallets of inspected containers could easily be moved to pallets of uninspected containers, thus permitting a handler to avoid inspection on a lot or lots of nectarines or peaches. This would also jeopardize the use of the lot stamp numbers for the industries' “trace back” program.
To address this concern since the 2000 season, the committees have annually recommended that pallets of inspected fruit in RPCs be identified with a USDA-approved pallet tag containing the lot stamp number, in addition to the lot stamp number printed on the card on the container. In this way, noted the committees, an audit trail would be created, confirming that the lot stamp number on each container on the pallet corresponds to the lot stamp number on the pallet tag.
The committees and the inspection service presented their concerns to the manufacturers of these types of containers prior to the 2000 season. At that time, one manufacturer indicated a willingness to address the problem by offering an area on the principal display panel where the container markings would adhere to the container. Another possible improvement discussed was for an adhesive for the current style of containers which would securely hold the cards with the lot stamp numbers, yet would be easy for the clearinghouse to remove when the containers are washed. However, the changes offered by the manufacturers were not available for use in the previous three seasons, and there is no assurance that they will be available for the 2003 season.
In a meeting of the Stone Fruit Grade and Size Subcommittee on November 6, 2002, it was determined that given the different styles and configurations of RPCs available, having a standardized display panel or a satisfactory adhesive for placement of the cards may not be realistic and the industry needed to continue the lot stamping requirements in place since the 2000 season.
For those reasons, the subcommittee unanimously recommended to the committees that the regulation in effect since the 2000 season requiring lot stamp numbers on USDA-approved pallet tags, as well as on individual containers on a pallet, be again required for the 2003 season. The committees, in turn, recommended unanimously that such requirement be extended for the 2003 season, as well.
Thus, §§ 916.115 and 917.150 will be amended to require the lot stamp number to be printed on a USDA-approved pallet tag, in addition to the requirement that the lot stamp number be applied to cards on all exposed or outside containers, and not less than 75 percent of the total containers on a pallet, during the 2003 season.
Sections 916.52 and 917.41 of the orders authorize establishment of container, pack, and marking requirements for shipments of nectarines and peaches, respectively. Under §§ 916.350 and 917.442 of the orders, the specifications of container markings, net weights, well-filled requirements, weight-count standards for various sizes of nectarines and peaches, and lists of standard containers are provided.
The committees unanimously recommended that a uniform net weight be established for all “five down” boxes (commonly referred to as “Euro” boxes), and that all such containers be exempted from the well-filled requirement. Currently, the net weight requirement of 31 pounds for “five down” boxes and the exemption from the well-filled requirement applies only to RPCs. However, as a handler noted at one meeting, the industry uses boxes of the same “footprint” (length and width dimensions) as the RPCs that are made of more traditional materials, such as corrugated cardboard. “Five down” boxes are containers that lay in a pattern of five containers per layer on each pallet. In other words, each layer of boxes on a pallet contains only five Euro boxes. Other container sizes and footprints may result in nine boxes per layer, etc.
Since applying the well-filled requirements to any five down Euro box
At the December 3, 2002, meeting, the NAC and PCC also unanimously recommended that all five down Euro boxes have an established net weight of 31 pounds, which is to be printed on the end of the container, and that those containers, like the RPCS, be exempt from the well-filled requirement.
Under the requirements of § 917.41 of the order, containers of peaches are required to meet weight-count standards for a maximum number of peaches in a 16-pound sample when such peaches, which may be packed in tray-packed containers, are converted to volume-filled containers. Under § 917.442 of the order's rules and regulations, weight-count standards are established for all varieties of peaches as Tables 1, 2, and 3 of paragraph (a)(5)(iv).
According to the PCC, the Peento type peaches have traditionally been packed in trays because they have been marketed as a premium variety, which justified the added packing costs.
However, as the volume has increased, the value of this peach has diminished in the marketplace, and some handlers converted their tray-packed containers of Peento types to volume-filled containers. Prior to the 2002 season, weight-count standards established for peaches and nectarines were developed for round fruit. Peento type peaches are shaped like donuts, and those weight-count standards were inappropriate. In an effort to standardize the conversion from tray-packing to volume-filling for Peento type peaches, the committee staff conducted weigh-count surveys during the 2001 season to determine the most optimum weight-counts for the varieties at varying fruit sizes.
As a result, a new weight-count table applicable to only the Peento type peaches was added for the 2002 season. However, during the 2002 season, the committee staff continued to conduct further weight-count surveys to ensure that the Peento type peaches packed in volume-filled containers meet the weight-count standards established for tray-packed fruit. During those studies, the committee staff learned that very large Peento type peaches that were not previously converted from tray-packs to volume-filled containers were being packed in volume-filled containers and did not meet the weight-count standards.
For this reason, Table 3 of paragraph (a)(5)(iv) in § 917.442 is being revised to include weight-count standards for two of the larger peach sizes, sizes 32 and 30. Table 3 will also be corrected with regard to the maximum number of fruit in a 16-pound sample for sizes 54 and 50. Also, the maximum number of fruit in a 16-pound sample of size 54 Peento type peaches currently is listed as 77 peaches, and the maximum number of size 50 Peento type peaches is listed as 80 peaches. The maximum numbers of fruit for these sizes were inadvertently reversed, and will be corrected to indicate that the maximum number of fruit in a 16-pound sample of size 54 Peento type peaches is 80, and the maximum number of fruit in a 16-pound sample of size 50 Peento type peaches is 77.
Sections 916.52 and 917.41 of the orders authorize the establishment of grade and quality requirements for nectarines and peaches, respectively. Prior to the 1996 season, § 916.356 required nectarines to meet a modified U.S. No. 1 grade. Specifically, nectarines were required to meet U.S. No. 1 grade requirements, except for a slightly tighter requirement for scarring and a more liberal allowance for misshapen fruit. Prior to the 1996 season, § 917.459 required peaches to meet the requirements of a U.S. No. 1 grade, except for a more liberal allowance for open sutures that were not “serious damage.”
This rule revises §§ 916.350, 916.356, 917.442, and 917.459 to permit shipments of nectarines and peaches meeting “CA Utility” quality requirements during the 2003 season. (“CA Utility” fruit is lower in quality than that meeting the modified U.S. No. 1 grade requirements.) Shipments of nectarines and peaches meeting “CA Utility” quality requirements have been permitted each season since 1996.
Studies conducted by the NAC and PCC in 1996 indicated that some consumers, retailers, and foreign importers found the lower-quality fruit acceptable in some markets. When shipments of “CA Utility” nectarines were first permitted in 1996, they represented 1.1 percent of all nectarine shipments, or approximately 210,000 containers. Shipments of “CA Utility” nectarines reached a high of 5.3 percent (1,239,000 containers) during the 2002 season, but usually represent approximately 4 percent of total nectarine shipments. Shipments of “CA Utility” peaches totaled 1.9 percent of all peach shipments, or approximately 366,000 containers, during the 1996 season. Shipments of “CA Utility” peaches reached a high of 5.6 percent of all peach shipments (1,231,000 containers) during the 2002 season, but usually represent approximately 4 percent of total peach shipments.
Handlers have also commented that the availability of the “CA Utility” quality option lends flexibility to their packing operations. They have noted that they now have the opportunity to remove marginal nectarines and peaches from their U.S. No. 1 containers and place this fruit in containers of “CA Utility.” This flexibility, the handlers note, results in better quality U.S. No. 1 packs without sacrificing fruit.
The Stone Fruit Grade and Size Subcommittee met on November 6, 2002, and did not make a recommendation to the NAC and PCC to continue shipments of “CA Utility” quality nectarines and peaches. Some subcommittee members raised concerns about “CA Utility” quality fruit, including concerns that growers” returns on “CA Utility” quality fruit are lower. The issue of the authorized tolerance of 40 percent U.S. No. 1 fruit in each container of “CA Utility” quality was raised, and there was some discussion that the tolerance should be reduced so that less U.S. No. 1 fruit would be in a box of “CA Utility” quality fruit. However, ultimately no decisions were made by the subcommittee as the result of these discussions.
Subsequently, however, the NAC and PCC voted unanimously at their
Accordingly, based upon the recommendations, paragraph (d) of §§ 916.350 and 917.442, and paragraph (a)(1) of §§ 916.356 and 917.459 are revised to permit shipments of nectarines and peaches meeting “CA Utility” quality requirements during the 2003 season, on the same basis as shipments since the 2000 season.
In §§ 916.52 and 917.41, authority is provided to establish maturity requirements for nectarines and peaches, respectively. The minimum maturity level currently specified for nectarines and peaches is “mature” as defined in the standards. For most varieties, “well-matured” determinations for nectarines and peaches are made using maturity guides (
These maturity guides established under the handling regulations of the California tree fruit marketing orders have been codified in the Code of Federal Regulations as Table 1 in §§ 916.356 and 917.459, for nectarines and peaches, respectively.
The requirements in the 2003 handling regulations are the same as those that appeared in the 2002 handling regulations with a few exceptions. Those exceptions are explained in this rule.
The NAC recommended these maturity guide requirements based on SPI's continuing review of individual maturity characteristics and identification of the appropriate maturity guide corresponding to the “well-matured” level of maturity for nectarine varieties in production.
In addition, SPI requested that the language in paragraph (a)(1)(vi) of § 917.459 be revised with regard to the Joanna Sweet variety. Currently, the Joanna Sweet variety is required to have a one hundred percent surface color requirement for meeting the assigned color chip. SPI requested that the language be changed to reflect that any of the fruit surface that is not red shall meet the color guide established for the variety, including any color found in the stem cavity. This recommendation is based upon SPI's experience with the maturity characteristics of this variety.
Thus, paragraph (a)(1)(iv) of § 917.459 will be revised to reflect this recommendation.
The PCC recommended these maturity guide requirements based on SPI's continuing review of individual maturity characteristics and identification of the appropriate maturity guide corresponding to the “well-matured” level of maturity for peach varieties in production.
Varieties recommended for specific size regulations have been reviewed and such recommendations are based on the specific characteristics of each variety. The NAC and PCC conduct studies each season on the range of sizes attained by the regulated varieties and those varieties with the potential to become regulated, and determine whether revisions and additions to the size requirements are appropriate.
For example, one of the varieties recommended for addition to the variety-specific minimum size requirements is the Red Roy variety of nectarines, recommended for regulation at a minimum size 88. Studies of the size ranges attained by the Red Roy variety revealed that 100 percent of the containers met the minimum size of 88 during the 2002 season. Sizes ranged from size 40 to size 88, with 1.5 percent of the fruit in the 40 sizes, 22.2 percent of the packages in the 50 sizes, 55.8 percent in the 60 sizes, 14.6 percent in the 70 sizes, 5.4 in the 80 sizes, with .5 percent in the size 88.
A review of other varieties with the same harvesting period indicated that the Red Roy variety was also comparable to those varieties in its size ranges for that time period. Discussions with handlers known to handle the variety confirm this information regarding minimum size and harvesting period, as well. Thus, the recommendation to place the Red Roy variety in the variety-specific minimum size regulation at a minimum size 88 is appropriate. This recommendation results from size studies conducted over a two-year period.
Historical data such as this provides the NAC with the information necessary to recommend the appropriate sizes at which to regulate various nectarine varieties. In addition, producers and handlers of the varieties affected are personally invited to comment when such size recommendations are deliberated. Producer and handler comments are also considered at both NAC and subcommittee meetings when the staff receives such comments, either in writing or verbally.
For reasons similar to those discussed in the preceding paragraph, the introductory text of paragraph (a)(4) of § 916.356 is revised to include the Red Roy variety; and the introductory text of paragraph (a)(6) of § 916.356 is revised to include the Candy Gold, Candy Sweet, and Honey Royale nectarine varieties.
This rule also revises the introductory text of paragraphs (a)(3), (a)(4), and (a)(6) of § 916.356 to remove 11 varieties from the variety-specific minimum size
Nectarine varieties removed from the nectarine variety-specific minimum size requirements become subject to the non-listed variety size requirements specified in paragraphs (a)(7), (a)(8), and (a)(9) of § 916.356.
For example, one of the varieties recommended for addition to the variety-specific minimum size requirements is the Springtreat (60EF32) variety of peaches, which was recommended for regulation at a minimum size 80. Studies of the size ranges attained by the Springtreat (60EF32) variety revealed that 100 percent of the containers met the minimum size of 80 during the 2002 season. The sizes ranged from size 50 to size 80, with 8.2 percent of the containers meeting the size 50, 41.2 meeting the size 60, 37.6 percent meeting the size 70, and 12.9 percent meeting the size 80.
A review of other varieties with the same harvesting period indicated that the Springtreat (60EF32) variety was also comparable to those varieties in its size ranges for that time period. Discussions with handlers known to pack the variety confirm this information regarding minimum size and harvesting period, as well. Thus, the recommendation to place the Springtreat (60EF32) variety in the variety-specific minimum size regulation at a minimum size 80 is appropriate. This recommendation, as with all other size recommendations for peaches, results from size studies conducted over a three-year period.
Historical data such as this provides the PCC with the information necessary to recommend the appropriate sizes at which to regulate various peach varieties. In addition, producers and handlers of the varieties affected are personally invited to comment when such size recommendations are deliberated. Producer and handler comments are also considered at both PCC and subcommittee meetings when the staff receives such comments, either in writing or verbally.
For reasons similar to those discussed in the preceding paragraph, the introductory text of paragraph (a)(5) of § 917.459 is revised to include the Happy Dream, Magenta Queen, Springtreat (60EF32), and Spring Flame 21 peach varieties; and the introductory text of paragraph (a)(6) of § 917.459 is revised to include the August Flame, Henry II, June Flame, Pink Giant, Prima Peach XV, Red Giant, Snow Beauty, and Snow Princess peach varieties.
This rule also revises the introductory text of paragraph (a)(3) of § 917.459 to remove the Topcrest peach variety; revises the introductory text of paragraph (a)(5) of § 917.459 to remove the White Dream peach variety; and revises the introductory paragraph (a)(6) of § 917.459 to remove the Cal Red, Champagne, Flaming Dragon, Garnet Jewel, Lacey, Madonna Sun, Morning Lord, and Red Sun peach varieties from the variety-specific minimum size requirements specified in the section because less than 5,000 containers of each of these varieties was produced during the 2002 season.
Peach varieties removed from the peach variety-specific minimum size requirements become subject to the non-listed variety size requirements specified in paragraphs (b) and (c) of § 917.459.
The NAC and PCC recommended these changes in the minimum size requirements based on a continuing review of the sizing and maturity relationships for these nectarine and peach varieties, and the consumer acceptance levels for various fruit sizes. This rule is designed to establish minimum size requirements for fresh nectarines and peaches consistent with expected crop and market conditions.
This rule reflects the committees' and USDA's appraisal of the need to revise the handling requirements for California nectarines and peaches, as specified. USDA believes that this rule will have a beneficial impact on producers, handlers, and consumers of fresh California nectarines and peaches.
This rule establishes handling requirements for fresh California nectarines and peaches consistent with expected crop and market conditions, and will help ensure that all shipments of these fruits made each season will meet acceptable handling requirements established under each of these orders. This rule will also help the California nectarine and peach industries to provide fruit desired by consumers. This rule is designed to establish and maintain orderly marketing conditions for these fruit in the interests of producers, handlers, and consumers.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 300 California nectarine and peach handlers subject to regulation under the orders covering nectarines and peaches grown in California, and about 1,800 producers of these fruits in California. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (13 CFR 121.201) as those whose annual receipts are less than $5,000,000. Small agricultural producers are defined by the Small Business Administration as those having annual receipts of less than $750,000. A majority of these handlers and producers may be classified as small entities.
The committees' staff has estimated that there are less than 20 handlers in the industry who could be defined as other than small entities. For the 2002 season, the committees' staff estimated that the average handler price received was $9.00 per container or container equivalent of nectarines or peaches. A handler would have to ship at least 556,000 containers to have annual receipts of $5,000,000. Given data on shipments maintained by the committees' staff and the average handler price received during the 2002
The committees' staff has also estimated that less than 20 percent of the producers in the industry could be defined as other than small entities. For the 2002 season, the committees' estimated the average producer price received was $4.00 per container or container equivalent for nectarines and peaches. A producer would have to produce at least 187,500 containers of nectarines and peaches to have annual receipts of $750,000. Given data maintained by the committees' staff and the average producer price received during the 2002 season, the committees' staff estimates that small producers represent more than 80 percent of the producers within the industry. With an average producer price of $4.00 per container or container equivalent, and a combined packout of nectarines and peaches of 45,354,000 containers, the value of the 2002 packout level is estimated to be $181,416,000. Dividing this total estimated grower revenue figure by the estimated number of producers (1,800) yields an estimate of average revenue per producer of about $101,000 from the sales of peaches and nectarines.
Under §§ 916.52 and 917.41 of the orders, grade, size, maturity, container, container marking, and pack requirements are established for fresh shipments of California nectarines and peaches, respectively. Such requirements are in effect on a continuing basis. The NAC and PCC met on December 3, 2002, and unanimously recommended that these handling requirements be revised for the 2003 season. These recommendations had been presented to the committees by various subcommittees, each charged with review and discussion of the changes. The changes: (1) Continue the lot stamping requirements for reusable plastic containers that have been in effect since the 2000 season; (2) authorize shipments of “CA Utility” quality fruit to continue during the 2003 season; (3) revise weight-count standards for the Peento type peaches; (4) establish a net weight for all five-down containers and exempt those containers from the well-filled requirement; and (5) revise varietal maturity, quality, and size requirements to reflect changes in growing and marketing practices.
This rule authorizes continuation of the lot stamping requirements for returnable plastic containers under the marketing orders' rules and regulations that have been in effect for such containers since the 2000 season for nectarine and peach shipments. The modified requirements of §§ 916.115 and 917.150 mandated that the lot stamp numbers be printed on a USDA-approved pallet tag, in addition to the requirement that the lot stamp number be applied to cards on all exposed or outside containers, and not less than 75 percent of the total containers on a pallet. Continuation of such requirements for the 2003 season would help the inspection service safeguard the identity of inspected and certified containers of nectarines and peaches, and would help the industry by keeping in place the information necessary to facilitate their “trace-back” program.
The Stone Fruit Grade and Size Subcommittee met on November 6, 2002, and considered possible alternatives to this action. Other alternatives were rejected because it was determined that given the different styles and configurations of RPCs available, having a satisfactory adhesive for placement of the cards may not be realistic, at least for the time being, given the reluctance of box manufacturers to respond to the industry's requests.
For those reasons, the subcommittee and the committees unanimously recommended extending the requirement for the lot stamp number to be printed on the cards on each container and for each pallet to be marked with a USDA-approved pallet tag, also containing the lot stamp number. Such safeguards are intended to ensure that all the containers on each pallet have been inspected and certified in the event a card on an individual container or containers is removed, misplaced, or lost.
The Stone Fruit Grade and Size Subcommittee also discussed the 31-pound net weight requirement for all five down Euro containers at its meeting on November 6, 2002. At that time, it was noted by one handler that the current net weight of 31 pounds and exemption from the well-filled requirement are applicable to only the RPCs. The handler noted, however, that the industry also currently uses five down Euro boxes that are not RPCs. He further suggested that all five down Euro boxes should be required to meet the net weight of 31 pounds and be exempted from the requirement to be well-filled. The subcommittee agreed and unanimously recommended the change to the committees. The alternative would have meant that only the RPC five down Euro containers would have been subject to the minimum regulated with a net weight of 31 pounds, and exempted from the requirement to be well-filled. In consideration of uniformity for five down Euro containers, this alternative was rejected.
In 1996, §§ 916.350 and 917.442 were revised to permit shipments of “CA Utility” quality nectarines and peaches as an experiment during the 1996 season only. Such shipments have subsequently been permitted each season. Since 1996, shipments of “CA Utility” have ranged from 1 to 5 percent of total nectarine and peach shipments. This rule authorizes continued shipments of “CA Utility” quality nectarines and peaches during the 2003 season.
The Grade and Size Subcommittee met on November 6, 2002, and briefly discussed “CA Utility” quality nectarines and peaches. The subcommittee ultimately did not make a recommendation to the NAC and PCC regarding continued shipments of “CA Utility” quality nectarines and peaches. The subcommittee did, however, request that the results of a grower survey on attitudes toward “CA Utility” quality fruit conducted in December of 2001 by the committees be provided to the committees at the December 3, 2002, meeting.
However, at their meetings on December 3, 2002, the NAC and PCC unanimously recommended to continue to allow shipments of “CA Utility” quality nectarines and peaches.
Sections 916.350 and 917.442 establish container, pack, and marking requirements for shipments of nectarines and peaches, respectively. This rule makes changes to the pack and container marking requirements of the orders' rules and regulations to establish a net weight of 31 pounds for all types of five down Euro boxes, and exempt such boxes from the well-filled requirement.
Section 917.442 also establishes minimum weight-count standards for containers of peaches. Under these requirements, containers of peaches are required to meet weight-count standards for a maximum number of peaches in a 16-pound sample when such peaches are packed in a tray-packed container. Those same maximum numbers of peaches are also applicable to volume-filled containers, based upon the tray-packed standard. The weight-count standard was developed so handlers may convert tray-packed peaches to volume-filled containers and be assured that fruit of a specific size in the volume-filled container will be the same as that in the tray-packed container.
When the Stone Fruit Grade and Size Subcommittee met, they discussed the recent changes in the packing and
The staff continued to conduct weight-count studies during the 2002 season so that weight-count standards could be perfected, thus ensuring that all handlers are handling a standard maximum number of peaches in a 16-pound sample. During the studies, the staff learned that all available sizes of Peento type peaches were being packed in volume-filled containers, including sizes for which there were not yet minimum weight-count standards. For that reason, modifications to Table 3 in paragraph (a)(5)(vi) of § 917.442 are made to include additional sizes 30 and 32, which are larger-sized Peento peaches.
Sections 916.356 and 917.459 establish minimum maturity levels. This rule makes annual adjustments to the maturity requirements for several varieties of nectarines and peaches. Maturity requirements are based on maturity measurements generally using maturity guides (
Currently, in § 916.356 of the nectarine order's rule and regulations, and in § 917.459 of the peach order's rule and regulations, minimum sizes for various varieties of nectarines and peaches, respectively, are established. This rule makes adjustments to the minimum sizes authorized for various varieties of nectarines and peaches for the 2003 season. Minimum size regulations are put in place to encourage producers to leave fruit on the trees for a longer period of time. This increased growing time not only improves maturity, but also increases fruit size. Increased fruit size increases the number of packed containers per acre, and coupled with heightened maturity levels, also provides greater consumer satisfaction, fostering repeat purchases. Such improved consumer satisfaction and repeat purchases benefit both producers and handlers alike.
Annual adjustments to minimum sizes of nectarines and peaches, such as these, are recommended by the NAC and PCC based upon historical data, producer and handler information regarding sizes attained by different varieties, and trends in consumer purchases.
An alternative to such action would include not establishing minimum size regulations for these new varieties. Such an action, however, would be a significant departure from the committees' practices and represent a significant change in the regulations as they currently exist; would ultimately increase the amount of less acceptable fruit being marketed to consumers; and, thus, would be contrary to the long-term interests of producers, handlers, and consumers. For these reasons, this alternative was not recommended.
The committees make recommendations regarding all the revisions in handling and lot stamping requirements after considering all available information, including recommendations by various subcommittees, comments of persons at subcommittee meetings, and comments received by committee staff. Such subcommittees include the Stone Fruit Grade and Size Subcommittee, the Inspection and Compliance Subcommittee, and the Executive Committee.
At the meetings, the impact of and alternatives to these recommendations are deliberated. These subcommittees, like the committees themselves, frequently consist of individual producers and handlers with many years' of experience in the industry who are familiar with industry practices and trends. Like all committee meetings, subcommittee meetings are open to the public and comments are widely solicited. In the case of the Stone Fruit Grade and Size Subcommittee, many growers and handlers who are affected by the issues discussed by the subcommittee attend and actively participate in the public deliberations. In addition, minutes of all subcommittee meetings are distributed to committee members and others who have requested them, thereby increasing the availability of information within the industry.
Each of the recommended handling requirement changes for the 2003 season is expected to generate financial benefits for produces and handlers through increased fruit sales, compared to the situation that would exist if the changes were not adopted. Both large and small entities are expected to benefit from the changes, and the costs of compliance are not expected to be substantially different between large and small entities.
This rule does not impose any additional reporting and recordkeeping requirements on either small or large handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. However, as previously stated, nectarines and peaches under the orders have to meet certain requirements set forth in the standards issued under the Agricultural Marketing Act of 1946 (7 CFR 1621
In addition, the committees' meetings are widely publicized throughout the nectarine and peach industry and all interested parties are encouraged to attend and participate in committee deliberations on all issues. These meetings are held annually during the last week of November or first week of December. Like all committee meetings, the December 3, 2002, meetings were public meetings, and all entities, large and small, were encouraged to express views on these issues. These regulations were also reviewed and thoroughly discussed at a subcommittee meeting held on November 6, 2002. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following Web site:
This rule invites comments on changes to the handling requirements currently prescribed under the marketing orders for California fresh nectarines and peaches. Any comments
After consideration of all relevant matters presented, the information and recommendations submitted by the committees, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined, upon good cause, that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Nectarines, Reporting and recordkeeping requirements.
Marketing agreements, Peaches, Pears, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
Except when loaded directly into railway cars, exempted under § 916.110, or for nectarines mailed directly to consumers in consumer packages, all exposed or outside containers of nectarines, and not less than 75 percent of the total containers on a pallet, shall be plainly stamped, prior to shipment, with a Federal-State Inspection Service lot stamp number, assigned by such Service, showing that such fruit has been USDA inspected in accordance with § 916.55:
(a) * * *
(1) Such nectarines, when packed in any closed package or container, except master containers of consumer packages, individual consumer packages, and five down Euro containers, shall conform to the requirements of standard pack:
(8) Each five down Euro container of loose-filled nectarines shall bear on one outside end in plain sight and in plain letters the words “31 pounds net weight.”
(d) During the period April 1 through October 31, 2003, each container or package when packed with nectarines meeting the “CA Utility” quality requirements, shall bear the words “CA Utility,” along with all other required container markings, in letters at least
(a) * * *
(1) Any lot or package or container of any variety of nectarines unless such nectarines meet the requirements of U.S. No. 1 grade:
(iv) * * *
(3) Any package or container of Mayglo variety of nectarines on or after May 6 of each year, or Crimson Baby, Earliglo, Early Diamond, Grand Sun, or May Kist variety nectarines unless:
(4) Any package or container of Arctic Rose, Arctic Star, Diamond Bright, Juneglo, June Pearl, Kay Glo, Kay Sweet, May Diamond, May Grand, Prima Diamond IV, Prima Diamond VI, Prima Diamond XIII, Prince Jim, Prince Jim 1, Red Delight, Red Glo, Red Roy, Rose Diamond, Royal Glo, Sparkling May, White Sun, or Zee Grand variety nectarines unless:
(6) Any package or container of Alta Red, Arctic Blaze, Arctic Ice, Arctic Jay, Arctic Mist, Arctic Pride, Arctic Queen, Arctic Snow (White Jewel), Arctic Sweet, August Glo, August Lion, August Pearl, August Red, August Snow, Big Jim, Bright Pearl, Bright Sweet, Candy Gold, Candy Sweet, Diamond Ray, Early Red Jim, Firebrite, Fire Pearl, Fire Sweet, Flame Glo, Flaming Red, Grand Diamond, Grand Pearl, Grand Sweet, Honey Blaze, Honey Kist, Honey Royale, July Pearl, July Red, June Lion, Kay Pearl, King Jim, Late Red Jim, P-R Red, Prima Diamond IX, Prima Diamond XVIII, Prima Diamond XIX, Prima Diamond XXIV, Prima Diamond XXVIII, Red Diamond, Red Glen, Red Jim, Regal Pearl, Regal Red, Royal Giant, Ruby Diamond, Ruby Pearl, Ruby Sweet, Scarlet Red, September Bright (26P-490), September Free, September Red, Sparkling June, Sparkling Red, Spring Bright, Spring Sweet, Summer Blush, Summer Bright, Summer Diamond, Summer Fire, Summer Grand, Summer Jewel, Summer Lion, Summer Red, Sunburst, Sun Diamond, Sunny Red, Sun Valley Sweet, Sweet White, Terra White, or Zee Glo variety nectarines unless:
Except when loaded directly into railway cars, exempted under § 917.143, or for peaches mailed directly to consumers in consumer packages, all exposed or outside containers of peaches, and not less than 75 percent of the total containers on a pallet, shall be plainly stamped, prior to shipment, with a Federal-State Inspection Service lot stamp number, assigned by such Service, showing that such fruit has been USDA inspected in accordance with § 917.45:
(a) * * *
(1) Such peaches, when packed in any closed package or container, except master containers of consumer packages, individual consumer packages, and five down Euro containers, shall conform to the requirements of standard pack:
(5) * * *
(iv) * * *
(9) Each five down Euro container of loose-filled peaches shall bear on one outside end in plain sight and in plain letters the words “31 pounds net weight.”
(d) During the period April 1 through November 23, 2003, each container or package when packed with peaches meeting “CA Utility” quality requirements, shall bear the words “CA Utility,” along with all other required container markings, in letters at least
(a) * * *
(1) Any lot or package or container of any variety of peaches unless such peaches meet the requirements of U.S. No. 1 grade:
(iv) The Federal or Federal-State Inspection Service shall make the final determinations on maturity through the use of color chips or other tests as determined appropriate by the inspection agency. The Federal or Federal-State Inspection Service will use the maturity guides listed in Table 1 in making maturity determinations for the specified varieties when inspecting to the “well matured” level of maturity. For these varieties, not less than 90 percent of any lot shall meet the color guide established for the variety, and an aggregate area of not less than 90 percent of the fruit surface shall meet the color guide established for the variety, except that for the Joanna Sweet variety of peaches, any of the fruit surface that is not red shall meet the color guide established for the variety, including any color noted in the stem cavity. For varieties not listed, the Federal or Federal-State Inspection Service will use such tests as it deems proper. A variance for any variety from the application of the maturity guides specified in Table 1 may be granted during the season to reflect changes in crop, weather, or other conditions that would make the specified guides an inappropriate measure of “well matured.”
(3) Any package or container of Snow Kist or Super Rich variety peaches unless:
(5) Any package or container of Babcock, Bev's Red, Brittney Lane, Crimson Lady, Crown Princess, David Sun, Early May Crest, Flavorcrest, Happy Dream, June Lady, Kern Sun, Kingscrest, Magenta Queen, May Crest, May Sun, May Sweet, Pink Rose, Prima Peach IV, Queencrest, Ray Crest, Redtop, Rich May, Rich Mike, Snow Brite, Snow Prince, Springcrest, Spring Flame 21, Spring Lady, Spring Snow, Springtreat (60EF32), Sugar May, Sunlit Snow (172LE81), Sweet Scarlet, Zee Diamond, 012-094, or 172LE White Peach (Crimson Snow/Sunny Snow) variety peaches unless:
(6) Any package or container of August Flame, August Lady, Autumn Flame, Autumn Red, Autumn Rose, Autumn Snow, Cassie, Coral Princess, Country Sweet, Diamond Princess, Earlirich, Early Elegant Lady, Elegant Lady, Fairtime, Fancy Lady, Fay Elberta, Flamecrest, Full Moon, Henry II, Ivory Princess, Jillie White, Joanna Sweet, John Henry, July Flame, June Flame, June Pride, Kaweah, Kings Lady, Klondike, Late Ito Red, O'Henry, Pink Giant, Pretty Lady, Prima Gattie 8, Prima Peach 13, Prima Peach XV, Prima Peach 20, Prima Peach 23, Prima Peach XXV, Prima Peach XXVII, Princess Gayle, Queen Lady, Red Dancer, Red Giant, Rich Lady, Royal Lady, Ryan Sun, Saturn (Donut), Scarlet Snow, September Flame, September Snow, September Sun, Sierra Gem, Sierra Lady, Snow Beauty, Snow Blaze, Snow Fall, Snow Gem, Snow Giant, Snow Jewel, Snow King, Snow Princess, Sprague Last Chance, Spring Gem, Sugar Giant, Sugar Lady, Summer Dragon, Summer Lady, Summer Sweet, Summer Zee, Supechfour (Amber Crest), Sweet Dream, Sweet Gem, Sweet Kay, Sweet September, Tra Zee, Vista, White Lady, Zee Lady, or 24-SB variety peaches unless:
Agricultural Marketing Service, USDA.
Final rule.
This rule changes the administrative rules and regulations pertaining to a voluntary prune plum diversion program under the California prune marketing order (order). The order regulates the handling of dried prunes produced in California and is administered by the Prune Marketing Committee (Committee). The changes made reflect changes in industry structure and current economic conditions, and modify administrative procedures used in connection with implementing a diversion program. These changes will provide for more timely and efficient implementation of a diversion program if recommended in the future.
This final rule becomes effective May 9, 2003.
Richard P. Van Diest, Marketing Specialist, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or e-mail:
This final rule is issued under Marketing Agreement and Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes produced in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA will rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This final rule revises the administrative rules and regulations pertaining to a voluntary prune plum diversion program under the California prune marketing order (order). The order regulates the handling of dried prunes produced in California and is administered by the Committee. The changes made reflect changes in industry structure and current economic conditions, and modify administrative
Section 993.54 of the order provides authority for volume control in the form of reserve pooling. Volume control regulation is designed to promote orderly marketing conditions, stabilize prices and supplies, and improve producer returns. When volume regulation is in effect, a certain percentage of the California prune crop may be sold by handlers to any market (salable or free tonnage) while the remaining percentage must be held by handlers in a reserve pool (or reserve) for the account of the Committee. Reserve prunes are disposed of through various programs authorized under the order. Net proceeds generated from sales of reserve prunes are distributed to the reserve pool's equity holders, primarily producers.
The order also provides authority under § 993.62 for prune producers to participate in a voluntary prune plum diversion program when a reserve pool is implemented. Under this program, prune producers can elect to divert part of their prune plum crop from normal prune or prune product markets in lieu of placing prunes in a reserve pool. Section 993.62 also authorizes establishment of rules and regulations to implement and administer a diversion program.
Section 993.162 contains the rules and regulations necessary for governing the implementation of a diversion program.
Because a diversion program has not been implemented since the 1970's, the administrative rules and regulations contain several outdated provisions. Section 993.162(a) of the regulations currently establishes specific dryaway ratios by producing regions within the production area. Dryaway ratios represent the ratio of the weight of fresh prune plums needed to produce dried prunes, and are the basis for computing the dried weight equivalent of diverted fresh prune plums. The ratios range from 2.6 to 3.25 pounds of fresh plums to make a pound of French prunes, depending on the producing region. For non-French prunes, the dryaway ratio is established at 3.5 pounds of plums for one pound of non-French prunes for the entire production area.
The dryaway ratios can change from year to year depending upon weather conditions, fruit maturity at time of harvest, fruit solids and other factors. The dryaway ratios used in the early 1970's are no longer valid. Expanding production together with limited dehydration capacity has forced some growers to begin harvesting earlier and continue later than in the past. This has resulted in dryaway ratios higher than those currently specified. Because of this, and to provide more flexibility, the Committee recommended removing the specific dryaway ratios for non-French prunes from § 993.162(a) of the regulations and adding language that will allow the Committee to compute dryaway ratios for the applicable producing regions based on a survey of at least eight commercial prune dehydrators geographically dispersed within the production area.
When the Committee believes a diversion program is needed, the Committee will obtain annual average dryaway ratios from commercial dehydrators surveyed and compute a five-year average dryaway ratio for each dehydrator. The Committee will then add together the participating commercial dehydrators' five-year average dryaway ratios for each producing region within the production area, and divide the total dryaway ratio by the number of participating commercial dehydrators to obtain each year's average dryaway ratio by producing region. In the event any of the annual dryaway ratios for any of the crop years are abnormally high or low in any year, the Committee could replace the abnormal year's data with that of an earlier year. After the computations are made, the resulting ratios will be announced and commercial dehydrators will be notified by letter prior to the beginning of any crop year in which reserve pooling and a diversion program was being contemplated. This will result in more accurate dryaway ratios in determining the dried weight equivalent of fresh prune plums being diverted.
No change to the dryaway ratio for non-French prunes was recommended. Production of these prunes is small (0.06 percent of total prune production), little data is available, and it is believed that the currently listed ratio of 3.5 to 1 is accurate.
As previously mentioned, dryaway ratios for French prunes are calculated and applied to various producing regions within the production area. Section 993.162(a) of the regulations currently contains reference to 13 counties that no longer produce prunes. Prune production has shifted within the production area over the years. Thus, the Committee recommended updating the prune producing regions and condensing them into fewer regions. The regions used in determining dried weight equivalents for a diversion program in § 993.162(a) will be realigned as follows:
—North Sacramento Valley—The counties of Butte, Glenn, Shasta, and Tehama.
—South Sacramento, Napa, Sonoma, and Santa Clara Valleys and the counties of Amador, Colusa, Lake, Placer, Solano, Sutter, Yolo, Yuba, Napa, Sonoma, San Benito, and Santa Clara.
—San Joaquin Valley—The counties of Fresno, Kern, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare.
This final rule also will allow the Committee to assign any new counties of production to one of these three regions or remove counties when production ceases. When prune acreage ceases to exist in a county, the Committee will remove that county from the existing production region, with the approval of the Secretary, and announce the removal to the industry. In like manner, if there were new producing counties within the State, the Committee will, with the approval of the Secretary, be allowed to assign them to one of the existing regions based on geographic proximity and/or production/dehydration characteristics, instead of listing the counties in the rules and regulations. These assignments also will be announced to the industry. This process will allow the Committee to make timely changes to the producing regions so they reflect the current industry situation. Section 993.162(a) is modified to reflect these changes.
The region for non-French prunes will continue to include all counties within the production area because specific information on growing regions within the State is not maintained.
Section 993.162(b) of the regulations currently establishes the following eligible diversion methods: (1) Disposing of harvested prune plums under Committee supervision for nonhuman use at a location and in a manner satisfactory to the Committee; and (2) Leaving unharvested the entire production of prune plums from a solid block of bearing trees designated by the producer applying for the diversion. This final rule will specifically
A final change to § 993.162(b) will require the Committee to conduct a meeting prior to the beginning of any crop year in which a diversion program was being contemplated to determine which diversion method or methods may be used, and announce the eligible diversion method(s) to the industry. Section 993.162(b) is modified to reflect these changes.
To participate in the diversion program, producers must file an application with the Committee. Section 993.162(c) of the regulations currently requires that when a producer applies for the diversion program, a deposit fee shall accompany the application. The deposit fees established in the current regulations are as follows: For each producer application, the fee shall be the greater of either $100 or the amount obtained by multiplying the quantity, in tons, of prune plums to be diverted by $3.50. For commercial dehydrators acting as an agent for a group of four or more producers, the fee shall be the greatest of either $200 or the amount obtained by multiplying the aggregate quantity in tons of prune plums to be diverted by the group by $3.50. The deposit fees charged to diverting growers were intended to finance the Committee's administrative costs for the entire diversion program with any excess monies to be refunded on a prorate basis to participants. Because of changed economics since these fees were established in the 1970's, the deposit fees established in the regulations will not currently cover these costs. The Committee, therefore, recommended revising the regulations to provide that whenever a diversion program is implemented, the Committee shall, with the approval of the Secretary, compute and announce the deposit fees associated with filing applications for the diversion program. The deposit fees will be announced to the industry, instead of specifying the deposit fees in the rules and regulations. It is intended that the computed fees will reflect Committee administrative costs associated with administering a diversion program whenever such a program is recommended.
These changes will allow flexibility in the regulations by allowing the Committee to compute and announce the fees. Section 993.162(c) is modified to reflect these changes.
The Committee also recommended changes to § 993.162(d) of the regulations. This section includes criteria for approving diversion applications and establishes fees in connection with modifying applications. The changes will remove reference to specific fees and allow the Committee to apply fees consistent with the process regarding deposit fees. The changes also will increase the service charge for modifying applications from $1 to $2 per ton to reflect current administrative costs. Section 993.162(d) is modified accordingly.
The rules and regulations pertaining to implementing a prune diversion program were developed in the 1970's, and several provisions are outdated. These changes are designed to bring the rules and regulations in line with the present California prune industry practices. The changes also provide for flexibility in years when reserve pooling and a diversion program are implemented.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 1,205 producers of dried prunes in the production area and approximately 24 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
An updated industry profile shows that 9 out of 24 handlers (37.5 percent) shipped over $5,000,000 worth of dried prunes and could be considered large handlers by the Small Business Administration. Fifteen of the 24 handlers (62.5 percent) shipped under $5,000,000 worth of prunes and could be considered small handlers. An estimated 32 producers, or less than 3 percent of the 1,205 total producers, would be considered large growers with annual receipts over $750,000. The majority of handlers and producers of California dried prunes may be classified as small entities. USDA does not have precise numbers on the total number of commercial dehydrators in the industry or their size. However, it may be assumed that many may be considered small under SBA criteria.
Under § 993.62 of the order, when volume control in the form of a reserve pool is implemented, prune producers can elect to divert part of their prune plum crop from normal markets in lieu of placing prunes in a reserve pool. Section 993.162 contains the administrative rules and regulations necessary to administer a diversion program. This rule will revise those regulations.
One of the changes will remove references in the regulations to establish dryaway ratios for prune plums of the French variety. Dryaway ratios are used to determine the dried weight equivalent of fresh prune plums diverted from normal markets. Because these dryaway ratios are outdated, the Committee recommended replacing them by a process that will allow the Committee to compute and announce current dryaway ratios based on a survey of commercial dehydrators. Surveying commercial prune dehydrators will impose a minor information collection burden on such entities. It is estimated that between 8 and 15 commercial dehydrators will be requested to furnish information on their annual average dryaway ratios to the Committee, and that it will take approximately 15 minutes to furnish the information. The total estimated annual burden of collecting this information is estimated to be 225 minutes (3 hours and 45 minutes) for the industry. However, the Committee believes that the burden to complete a commercial dehydrator dryaway ratio survey will be outweighed by obtaining and using updated dryaway ratio data for French prunes when dryaway ratios are used to determine the dried weight equivalent of fresh prune plums diverted from normal markets.
Another change will update the prune producing regions to which the dryaway ratios for French prunes are applied, and allow the Committee to update the areas based on current production information. Dryaway ratios vary from area to area, and prune production shifts over time. Another change will specify in the regulatory text that tree removal is an acceptable diversion method, and
The changes to the prune producing regions, addition of acceptable diversion methods, and the Committee's authority to determine which methods of diversion are to be used are not expected to have a significant impact on growers or handlers, either small or large. These changes will update the regulations to reflect changes in the industry and to facilitate administration and implementation of a voluntary diversion program, if recommended in the future.
The changes regarding deposit fees will allow the Committee to collect charges from diversion program participants that reflect actual administrative costs incurred by the Committee. The fees specified in the regulations are outdated and will not cover the Committee's actual costs if a diversion program was needed to be implemented in the future. These changes will help to ensure that the growers participating in a future diversion program will pay the administrative costs of the program, as specified in § 993.62(g) of the order. Because growers participating in a diversion program are the beneficiaries of the program, it is appropriate that they pay the administrative fees of the program. In addition, because the diversion program is voluntary, growers will determine individually whether the costs will outweigh the benefits prior to their participation. It is not known how many growers will participate in a diversion program, since there has not been one implemented under the marketing order since the 1970's.
This final rule will be applied to small and large entities equally, regardless of size. The Committee believes that these actions will benefit the prune industry by updating the regulations to reflect changes in the industry, and by providing a process that will facilitate timelier implementation of a diversion program, if recommended.
The Committee discussed alternatives to this change on November 29, 2001, including taking no action. However, that will leave any future diversion program a less viable supply management tool due to outdated program elements. Another alternative was to update the data on dryaway ratios, prune producing regions, and diversion application charges through informal rulemaking the next time a diversion program was considered, rather than changing to a formula or survey procedure as stated herein. This alternative was not recommended because the Committee believed that this final rule would provide for more flexibility in administering a future diversion program.
This action will allow the Committee to survey commercial prune dehydrators to estimate costs applicable to drying prune plums. The reporting and record keeping burdens are necessary for compliance purposes and for developing statistical data to administer a future program. This rule will impose some additional reporting or recordkeeping requirements on both small and large California prune plum commercial dehydrators. It is estimated that between 8 and 15 commercial dehydrators will be requested to furnish information on their annual average dryaway ratios to the Committee, and that it will take an average of 15 minutes per response to furnish this information. The total estimated annual burden of collecting this information is estimated to be 225 minutes (3 hours and 45 minutes) for the industry. However, the Committee believes that the burden to complete a commercial dehydrator dryaway ratio survey will be outweighed by obtaining and using updated dryaway ratio data for French prunes when dryaway ratios are used to determine the dried weight equivalent of fresh prune plums from normal markets.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS is seeking approval by the Office of Management and Budget (OMB) for the additional burden imposed by the commercial dryaway ratio survey. Upon OMB approval, the additional burden will be merged into the information collection currently approved under OMB No. 0581-0178, Vegetable and Specialty Crop Marketing Orders. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
In addition, the Committee's Supply Management Subcommittee meeting on November 28, 2001, and the Committee meeting on November 29, 2001, where this action was deliberated, were both public meetings widely publicized throughout the prune industry. All interested persons, both large and small, were invited to attend the subcommittee and Committee meetings and participate in the industry's deliberations.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Marketing agreements, Plums, Prunes, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
(a)
(1) For prune plums of the French variety, the Committee shall survey at least eight commercial prune dehydrators that are geographically dispersed within the production area to obtain their annual dryaway ratios for each of the preceding five crop years, and compute a five-year average dryaway ratio for each dehydrator. The Committee shall then add together the participating commercial dehydrators' five-year average dryaway ratios for each producing region within the production area, and divide the total by the number of participating commercial dehydrators in that region to compute the dryaway ratio by producing region. In the event any of the annual dryaway ratios for any of the crop years is abnormally high or low in any year, the Committee may replace the abnormal year's data with that of an earlier year. The prune producing regions for which dryaway ratios shall be computed for prune plums of the French variety are as follows:
(i) North Sacramento Valley, which includes the counties of Butte, Glenn, Shasta, and Tehama;
(ii) South Sacramento, Napa, Sonoma, and Santa Clara Valleys, which includes the counties of Amador, Colusa, Lake, Placer, Solano, Sutter, Yolo, Yuba, Napa, Sonoma, San Benito, and Santa Clara; and
(iii) San Joaquin Valley, which includes the counties of Fresno, Kern, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare.
(A)
(B)
(2) For prune plums of the non-French variety, the dryaway ratio shall be 1 pound for each 3.50 pounds of prune plums diverted. The prune-producing region for prune plums of non-French varieties is the State of California.
(b)
(1) Disposing of harvested prune plums under Committee supervision for nonhuman use at a location and in a manner satisfactory to the Committee;
(2) Leaving unharvested the entire production of prune plums from a solid block of bearing trees designated by the producer applying for the diversion of removing prune plum trees prior to harvest; and/or
(3) Such other diversions as may be authorized by he Committee and approved by the Secretary.
(4) In accordance with § 993.62(c), eligible diversion shall not apply to prune plums, which would not, under normal producer practices, be dried and delivered to a handler. On or before July 20 of each crop year when the Committee recommends a reserve pool and diversion program (except the Committee with the approval of the Secretary may extend this date by not more than 10 business days if warranted by a late crop), the Committee shall identify, with the approval of the Secretary, the acceptable method(s) of voluntary prune plum diversion through reasonable publicity to producers, commercial dehydrators, handlers, and the cooperative bargaining association(s). For the purposes of this section, cooperative bargaining association means a nonprofit cooperative association of dried prune producers engaged within the production area in bargaining with handlers as to price and otherwise arranging for the sale of natural condition dried prunes of its members.
(c)
(1)
(i) The name and address of the producer; whether the producer is an owner-operator, share-landlord, share-tenant, or cash tenant; and the name and address of any other person or persons sharing a proprietary interest in such prune plums;
(ii) The proposed method of diversion and the location where the diversion is to take place;
(iii) The quantity and variety of prune plums proposed to be diverted; and
(iv) The approximate period of diversion.
(v) A deposit fee shall accompany each producer's application to cover costs associated with processing the application and administering the diversion program. The Committee shall compute, with the approval of the Secretary, and announce to the industry, the deposit fee. The deposit fee announced shall be a set dollar amount or a per ton cost based on the tonnage to be diverted. The fee paid by the applicant shall be the greater of these amounts.
(2)
(3)
(d)
(1) The Committee's approval of an application shall be in writing, and include at least the following:
(i) The details as to the method of diversion to be followed;
(ii) The method of appraisal to be used by the Committee to determine the quantity of prune plums diverted;
(iii) The lesser of either the quantity specified in the application to be diverted, or modification of that quantity as a result of any Committee action to prorate the total quantity to be diverted by all producers; and
(iv) Such other information as may be necessary to assist the applicant in meeting the requirements of this section, including the conditions for proof of diversion.
(2) If the Committee determines that it cannot approve an application it shall notify the applicant promptly. The Committee shall state the reason(s) for failing to approve the application, and request the applicant to submit, if practicable, an amended application correcting the deficiencies in the original application.
(3) The Committee shall establish, and give prompt notice to the industry of a final date by which a producer or dehydrator may modify an approved application, including changing the method of diversion or the quantity of prune plums to be diverted:
(4) If an applicant cancels an approved diversion application prior to diversion, no part of the deposit fee shall be refunded, except upon approval by the Committee following review of all circumstances in the matter.
Commodity Credit Corporation, USDA.
Final rule.
This final rule implements section 2501 of the Farm Security and Rural Investment Act of 2002 (the 2002 Act) which amended section 524 of the Federal Crop Insurance Act which permits CCC to fund the Agricultural Management Assistance (AMA) program. This final rule describes how NRCS intends to implement AMA as authorized by the amendment in the 2002 Act.
May 9, 2003.
This rule may also be accessed via Internet. Users can access the Natural Resources Conservation Service (NRCS) homepage at
Dave Mason, Program Manager, Conservation Operations Division, NRCS, P.O. Box 2890, Washington, DC 20013-2890, telephone: (202) 720-1873; fax: (202) 720-4265; e-mail:
Section 2501 of the Farm Security and Rural Investment Act of 2002 (the 2002 Act) amended section 524 of the Federal Crop Insurance Act (7 U.S.C. 1524) to permit CCC to fund the Agricultural Management Assistance (AMA) program at the amount of $20,000,000 for each of the fiscal years 2003 through 2007. Section 524(b) of the Federal Crop Insurance Act of 2000, as amended by section 133 of the Agricultural Risk Protection Act of 2000, authorized the AMA program.
As provided by section 524 of the Federal Crop Insurance Act (7 U.S.C. 1524), as amended by the 2002 Act, the funds, facilities, and authorities of the Commodity Credit Corporation (CCC) are available to NRCS for carrying out AMA. (The Chief of the NRCS is vice-president of the CCC.) Accordingly, where NRCS is mentioned in this rule, it also refers to the CCC's funds, facilities, and authorities where applicable.
The Commodity Credit Corporation (CCC) administers the funds under the general supervision of a Vice President of the CCC who is the Chief of the Natural Resources Conservation Service (NRCS). These funds will be used annually for cost share assistance to producers in 15 States in which participation in the Federal Crop Insurance Program is historically low. The 15 States include Connecticut, Delaware, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming. The cost share assistance will encourage and assist producers in the selected States to adopt natural resources conservation practices and investment strategies that will reduce or mitigate risks to their agricultural enterprises.
NRCS will use an allocation formula to determine the amount of funds that each state will receive that have been weighted to meet National objectives for the AMA conservation program. The formula used to determine allocation of funds to states consists of ranking factors of natural resource concerns. The formula is similar in nature to ones that have been used for other NRCS conservation programs.
However, this formula is primarily used to allocate funds to the states for practices that will mitigate a producer's risk of production through the implementation of resource conservation practices that reduce soil erosion, utilize integrated pest management principles and assist producers in transition to organic farming based operations. Production and marketing diversification is enhanced by utilizing integrated pest management principles by reducing and applying chemicals for production as needed. Producers who elect to eliminate chemical usage by converting to organic farming will be able to provide products to a growing sector of the American population whose daily diet consists partially or totally of organically produced food items. This allows producers to use marketing diversification as a tool to enhance their operations. AMA is targeted to 15 states that have been historically low in participation in programs that provide opportunities for producers to environmentally and financially implement conservation practices and marketing strategies to provide safeguards against the cyclic economic variances of the agricultural economy.
Other practices that producers may elect to implement include the opportunity to construct or improve watershed management or irrigation structures and plant trees to form windbreaks or improve water quality.
Based on national program objectives and state priorities and resource concerns, the State Conservationist in conjunction with advice from the State Technical Committee will determine which practices are eligible for program payments. The practices must meet the purposes set out in section 1465.1 of this rule.
The State Conservationist or designated conservationist with advice from the State Technical Committee and using a locally led process will rank and select applications for contracting based on the state-developed ranking criteria and ranking process. The NRCS representative will work with the applicant to collect the necessary information to evaluate the application using the ranking criteria.
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), the Office of Management and Budget has determined that this final rule is not a significant regulatory action.
The Regulatory Flexibility Act is not applicable to this rule because NRCS is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.
NRCS has determined through an Environmental Assessment (EA) for the Agricultural Management Assistance Program that the issuance of this final rule would not have a significant impact on the human environment. Copies of the Environmental Assessment and the Finding of No Significant Impact may be obtained from Dave Mason, Conservation Operations Division, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-2890.
NRCS has determined through a Civil Rights Impact Analysis that the issuance of this final rule will not have a significant effect on minorities. Copies of the Civil Rights Impact Analysis and Finding of No Significant Impact may be obtained from Dave Mason, Conservation Operations Division, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-2890.
Section 2702 (b)(1)(A) of the 2002 Act exempts the promulgation of regulations and the administration of the AMA from the requirements of the Paperwork Reduction Act.
This final rule has been reviewed in accordance with Executive Order 12988. The provisions of this final rule are not retroactive. Furthermore, the provisions of this final rule preempt State and local laws to the extent such laws are inconsistent with this final rule. Before an action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded persons at 7 CFR parts 614, 780 and 11 must be exhausted.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, NRCS assessed the effects of this rulemaking action on State, local, and tribal governments, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or tribal governments, or anyone in the private sector; therefore a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required.
USDA classified this final rule as “not major” under section 304 of the Department of Agriculture Reorganization Act of 1994, Pub. L. 104-354. Therefore, a risk assessment is not required.
NRCS issued a proposed rule with request for comments on August 28, 2002, in the
One comment was received during the comment period on the proposed regulation. The commenter stated that they were interested in organizing a meeting with a group of farmers in Illinois. Since the state of Illinois is not eligible for participation in the program and the comment was not directed to any section of the proposed rule, no changes were made to the rule.
Conservation contract, Conservation plan, Conservation practices, Soil and water conservation.
7 U.S.C. 1524(b), 16 U.S.C. 3801.
Through the Agricultural Management Assistance (AMA) program, the NRCS provides financial assistance funds annually to producers in 15 statutorily designated states to construct or improve water management structures or irrigation structures; to plant trees to form windbreaks or to improve water quality; and to mitigate risk through production diversification or resource conservation practices, including soil erosion control, integrated pest management, or transition to organic farming. The AMA Program is applicable in Connecticut, Delaware, Maryland, Massachusetts, Maine, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming.
(a) Administration and implementation of the conservation provisions of AMA Program for the CCC is assigned to the Natural Resources Conservation Service (NRCS). The Farm Service Agency (FSA) is responsible for ‘person’ determinations under § 1465.23(c) and making cost-share payments.
(b) NRCS will:
(1) Provide overall management and implementation leadership for the AMA Program;
(2) Establish policies, procedures, priorities, and guidance for implementation;
(3) Establish cost-share payment limits;
(4) Determine eligible practices;
(5) Develop and approve conservation plans and contracts with selected participants;
(6) Provide technical leadership for implementation, quality assurance, and evaluation of performance; and
(7) Make funding decisions and determine allocations of AMA funds.
(c) FSA will:
(1) Determine ‘person’ and producer eligibility; and
(2) Make cost-share payments for practices completed.
The following definitions apply to this part and all documents issued in
(a) Participation in the AMA Program is voluntary. The participant, in cooperation with the local conservation district, applies for practice installation for the farm or ranching unit of concern. The NRCS provides cost-share payments through contracts to apply needed conservation practices within a time schedule specified in the contract.
(b) The Chief determines the funds available for financial assistance according to the purpose and projected cost for which the financial assistance is provided in a fiscal year. The Chief allocates the funds available to carry out the AMA Program.
(c) To be eligible to participate in the AMA Program, an applicant must:
(1) Be an agricultural producer;
(2) Have control of the land for the life of the proposed contract period, except that:
(i) An exception may be made by the Chief in the case of land allotted by the Bureau of Indian Affairs (BIA), tribal land, or other instances in which the Chief determines that there is sufficient assurance of control; or
(ii) If the applicant is a tenant of the land involved in agricultural production the applicant shall provide NRCS with the written concurrence of the landowner in order to apply an eligible practice(s);
(3) Submit an application form CCC-1200;
(4) Supply information as required by NRCS to determine eligibility for the AMA Program; and
(5) States, political subdivisions, and entities thereof will not be persons eligible for payment. Any cooperative association of producers that markets commodities for producers shall not be considered to be a person eligible for payment.
(d) Land may only be considered for enrollment in the AMA program if NRCS determines that the land is:
(1) Privately owned land;
(2) Publicly owned land where:
(i) The land is under private control for the contract period and is included in the participant's operating unit;
(ii) Conservation practices will contribute to an improvement in the identified natural resource concern; and
(iii) The participant has provided NRCS with written authorization from the government landowner to apply the conservation practices; or
(3) The land is federally recognized Tribal, BIA allotted, or Indian trust land.
(a) The State Conservationist, with advice from the State Technical Committee, will determine the conservation practices eligible for AMA Program payments. To be considered eligible conservation practices, the practices must meet the purposes of the AMA as set out in § 1465.1.
(b) The conservation plan includes the schedule of operations, activities, and estimated expenditures of the practices needed to solve identified natural resource concerns.
(a) Any producer who has eligible land may submit an application for participation in the AMA Program at a USDA service center. Producers who are members of a joint operation shall file
(b) NRCS will accept applications throughout the year. The State Conservationist will distribute information on the availability of assistance and the state-specific goals. Information will be provided that explains the process to request assistance.
(c) The State Conservationist, with advice from the State Technical Committee, will develop ranking criteria and a ranking process to select applications, taking into account local and state priorities.
(d) The State Conservationist or designated conservationist with advice from the State Technical Committee and using a locally led process will rank and select applications for contracting based on the state-developed ranking criteria and ranking process.
(e) The State Conservationist or designated conservationist will work with the applicant to collect the information necessary to evaluate the application using the ranking criteria.
(a) In order for a participant to receive cost-share payments, the participant shall enter into a contract agreeing to implement eligible conservation practices.
(b) An AMA contract will:
(1) Incorporate by reference all portions of a unit applicable to the AMA Program;
(2) Be for a duration of 3 to 10 years;
(3) Incorporate all provisions as required by law or statute, including participant requirements to:
(i) Not conduct any practices on the farm or ranch unit of concern that would tend to defeat the purposes of the contract according to § 1465.25;
(ii) Refund any AMA Program payments received with interest, and forfeit any future payments under the AMA Program, on the violation of a term or condition of the contract, consistent with the provisions of § 1465.25;
(iii) Refund all AMA Program payments received on the transfer of the right and interest of the producer in land subject to the contract, unless the transferee of the right and interest agrees to assume all obligations of the contract, consistent with the provisions of § 1465.24; and
(iv) Supply information as required by NRCS to determine compliance with the contract and requirements of the AMA Program.
(4) Specify the participant's requirements for operation and maintenance of the applied conservation practices consistent with the provisions of § 1465.22; and
(5) Any other provision determined necessary or appropriate by NRCS.
(c) The participant must apply the practice(s) according to the schedule set out in the contract or conservation plan.
The contract will incorporate the operation and maintenance of the conservation practice(s) applied under the contract. The participant must operate and maintain the conservation practice(s) for its intended purpose for the life span of the conservation practice, as identified in the contract or conservation plan, as determined by NRCS. NRCS may periodically inspect the conservation practices during the life span of the practices as specified in the contract to ensure that operation and maintenance is occurring.
(a)(1) The Federal share of cost-share payments to a participant will be 75 percent of the actual cost of an eligible practice. In no instance shall the total financial contributions for an eligible practice from all public and private entity sources exceed 100 percent of the actual cost of the practice.
(2) Participants may contribute their portion of the costs of practices through in-kind contributions, including labor and materials, providing the materials contributed meet the NRCS standards and specifications for the practice being installed.
(3) Cost-share payments will not be made to a participant who has applied or initiated the application of a conservation practice prior to approval of the contract.
(b) The total amount of cost-share payments paid to a person under this part may not exceed $50,000 for any fiscal year.
(c) For purposes of applying the payment limitations provided for in this section, NRCS will use the provisions in 7 CFR part 1400 related to the definition of a “person”and the limitation of payments, except that:
(i) The provisions in part 1400, subpart C for determining whether persons are actively engaged in farming, subpart E for limiting payments to certain cash rent tenants, and subpart F as the provisions apply to determining whether foreign persons are eligible for payment, will not apply.
(ii) With respect to land under an AMA Program contract which is inherited during the contract period, the $50,000 fiscal year limitation will not apply to the extent that the payments from any contracts on the inherited land cause an heir, who was party to an AMA Program contract on other lands prior to the inheritance, to exceed the annual limit.
(iii) With regard to contracts on tribal land, Indian trust land, or BIA allotted land, payments exceeding one limitation may be made to the tribal venture if an official of the BIA or tribal official certifies in writing that no one person directly or indirectly will receive more than the limitation.
(iv) The status of an individual or entity on the date of the application shall be the basis on which the determination of the number of persons involved in the farming operation is made.
(d) The participant and NRCS must certify that a conservation practice is completed in accordance with the contract before NRCS will approve the payment of any cost-share payment.
(a) The participant and NRCS may modify a contract if the participant and NRCS agree to the contract modification.
(b) Contracts that run less than ten years may be extended for up to the 10-year limit in order for the participant to complete the practices scheduled in the contract, if such extension is requested by the participant before the contract expires.
(c) The parties may mutually agree to transfer a contract to a new participant. The transferee must be determined by NRCS to be eligible to participate in the AMA Program and shall assume full responsibility under the contract, including operation and maintenance of those conservation practices already installed and to be installed as a condition of the contract.
(d) NRCS may require a participant to refund all or a portion of any assistance earned under the AMA Program if the participant sells or loses control of the land under an AMA Program contract and the new owner or controller is not eligible to participate in the AMA Program or refuses to assume responsibility under the contract.
(a)(1) If NRCS determines that a participant is in violation of the terms of a contract or documents incorporated by reference into the contract, NRCS will give the participant a reasonable time, as determined by the State Conservationist, to correct the violation and comply with the terms of the contract and attachments thereto. If a
(2) Notwithstanding the provisions of paragraph (a)(1) of this section, a contract termination shall be effective immediately upon a determination by the State Conservationist that the participant has submitted false information or filed a false claim, or engaged in any act for which a finding of ineligibility for payments is permitted under the provisions of § 1465.35, or in a case in which the actions of the party involved are deemed to be sufficiently purposeful or negligent to warrant a termination without delay.
(b)(1) If NRCS terminates a contract, the participant shall forfeit all rights for future payments under the contract and shall refund all or part of the payments received, plus interest determined in accordance with part 1403 of this chapter. The State Conservationist has the option of requiring only partial refund of the payments received if the State Conservationist determines that a previously installed conservation practice can function independently, is not affected by the violation or other conservation practices that would have been installed under the contract, and the participant agrees to operate and maintain the installed conservation practice for the life span of the practice.
(2) If NRCS terminates a contract due to breach of contract or the participant voluntarily terminates the contract before any contractual payments have been made, the participant shall forfeit all rights for further payments under the contract and shall pay such liquidated damages as are prescribed in the contract. The State Conservationist will have the option to waive the liquidated damages depending upon the circumstances of the case.
(3) When making all contract termination decisions, NRCS may reduce the amount of money owed by the participant by a proportion which reflects the good faith effort of the participant to comply with the contract, or the hardships beyond the participant's control that have prevented compliance with the contract.
(4) The participant may voluntarily terminate a contract if NRCS agrees based on NRCS's determination that termination is in the public interest.
(5) In carrying out NRCS's role in this section, NRCS may consult with the local conservation district.
(a) A participant may obtain administrative review of an adverse decision under the AMA Program in accordance with parts 11 and 614 of this title, except as provided in paragraph (b) of this section.
(b) The following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) Funding allocations;
(3) Eligible conservation practices; and
(4) Other matters of general applicability, including:
(i) Technical standards and formulas;
(ii) Denial of assistance due to lack of funds or authority; or
(iii) Science-based formulas and criteria.
Participants who carry out conservation practices will be responsible for obtaining the authorities, rights, easements, or other approvals necessary for the implementation, operation, and maintenance of the conservation practices in keeping with applicable laws and regulations. Participants will be responsible for compliance with all laws and for all effects or actions resulting from the participant's performance under the contract.
Any authorized NRCS representative shall have the right to enter an operating unit or tract for the purpose of ascertaining the accuracy of any representations made in a contract or in anticipation of entering a contract, as to the performance of the terms and conditions of the contract. Access shall include the right to provide technical assistance, inspect any work undertaken under the contract and collect information necessary to evaluate the performance of conservation practices in the contract. The NRCS representative will make a reasonable effort to contact the participant prior to the exercise of this provision.
If a participant relied upon the advice or action of any authorized representative of NRCS, and did not know or have reason to know that the action or advice was improper or erroneous, the State Conservationist may accept the advice or action as meeting the requirements of the AMA Program and may grant relief, to the extent it is deemed desirable by NRCS, to provide a fair and equitable treatment because of the good-faith reliance on the part of the participant.
(a) Except as provided in paragraph (b) of this section, any payment or portion thereof to any person shall be made without regard to questions of title under State law and without regard to any claim or lien against the crop, or proceeds thereof, in favor of the owner or any other creditor except agencies of the United States Government. The regulations governing offsets and withholdings found in part 1403 of this chapter shall be applicable to contract payments.
(b) Any producer entitled to any payment may assign any payments in accordance with regulations governing assignment of payment found at part 1404 of this chapter.
(a) A producer who is determined to have erroneously represented any fact affecting an AMA Program determination made in accordance with this part shall not be entitled to contract payments and must refund to NRCS all payments, plus interest determined in accordance with part 1403 of this chapter.
(b) A producer's interest in all contracts shall be terminated, and the producer shall refund to NRCS all payments, plus interest determined in accordance with part 1403 of this chapter, received by such producer with respect to all contracts if it is determined that the producer knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose of the AMA Program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting an AMA Program determination.
In Title 21 of the Code of Federal Regulations, parts 170 to 199, revised as of April 1, 2002, on page 63, § 172.615(a) is corrected in the table by removing the first entry for “Pentaerythritol ester of gum or wood rosin” and adding the following entry in its place:
(a) * * *
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations providing guidance on the notification requirements under section 4980F of the Internal Revenue Code (Code) and section 204(h) of the Employee Retirement Income Security Act of 1974 (ERISA). Under these final regulations, a plan administrator must give notice of a plan amendment to certain plan participants and beneficiaries when the plan amendment provides for a significant reduction in the rate of future benefit accrual or the elimination or significant reduction in an early retirement benefit or retirement-type subsidy. These final regulations affect retirement plan sponsors and administrators, participants in and beneficiaries of retirement plans, and employee organizations representing retirement plan participants.
Pamela R. Kinard at (202) 622-6060 or Diane S. Bloom at (202) 283-9888 (not toll-free numbers).
The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-1780. Responses to this collection of information are required to obtain a benefit for a taxpayer who wants to amend a plan with an amendment that significantly reduces the rate of future benefit accrual or eliminates or significantly reduces an early retirement benefit or retirement-type subsidy.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.
The estimated annual burden per respondent varies from 1 hour to 80 hours, depending on individual circumstances, with an estimated average of 10 hours.
Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:T:T:SP, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.
Books or records relating to this collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to 26 CFR parts 1, 54, and 602 under section 4980F of the Code and section 204(h) of ERISA. Prior to 2001, section 204(h) of ERISA had no analogous section in the Code, but pursuant to section 101(a) of the Reorganization Plan No. 4 of 1978, 29 U.S.C. 1001nt, the Secretary of the Treasury has authority to issue regulations under parts 2 and 3 of subtitle B of title I of ERISA, including section 204(h) of ERISA. Under section 104 of the Reorganization Plan No. 4, the Secretary of Labor retains enforcement authority with respect to parts 2 and 3 of subtitle B of title 1 of ERISA, but, in exercising that authority, is bound by the regulations issued by the Secretary of Treasury. On December 15, 1995, temporary regulations (TD 8631), under section 411(d)(6) of the Code were published in the
Section 659 of the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16 (115 Stat. 38) (EGTRRA) added section 4980F of the Code. Section 4980F imposes an excise tax when a plan administrator fails to provide timely notice of plan amendments that provide for a significant reduction in the rate of future benefit accrual. A reduction of an early retirement benefit or a retirement-type subsidy is also treated, for purposes of section 4980F of the Code, as a reduction in the rate of future benefit accrual. Section 659(b) of EGTRRA also amended section 204(h) of ERISA to treat the elimination of an early retirement benefit or a retirement-type subsidy as a reduction in the rate of future benefit accrual. The Job Creation and Worker Assistance Act of 2002, Public Law 107-147 (116 Stat. 21) included certain technical corrections to section 659 of EGTRRA.
On April 23, 2002, proposed regulations under section 4980F of the Code and section 204(h) of ERISA were published in the
The regulations retain the overall structure of the proposed regulations and, like the proposed regulations, include a number of examples illustrating applicable rules. Some of the examples show the information required to be furnished in a section 204(h) notice, both as to amendments that result in a simple reduction in the future rate of benefit accrual and as to those that result in more complex reductions. The most complex are examples in which a defined benefit plan is amended to change prospectively the plan's benefit accrual formula from a traditional formula to a formula that bases future benefits on an account balance—commonly called a conversion to a cash balance pension plan—with the result that, for purposes of the notice requirements of section 4980F and section 204(h), the future rate of benefit accrual may be reduced for some participants and increased for others, including a separate but similarly complex effect on future early retirement benefits.
None of the examples illustrates rules in any other regulation or positions of Treasury or the IRS regarding provisions of the Internal Revenue Code other than the notice requirements of section 4980F and section 204(h). Thus, the examples do not indicate any possible outcome regarding proposed regulations that were published in the
Section 4980F of the Code and section 204(h) of ERISA require notice of an amendment to an applicable pension plan that either provides for a significant reduction in the rate of future benefit accrual or eliminates or significantly reduces an early retirement benefit or retirement-type subsidy. An applicable pension plan is a defined benefit plan and any individual account plan that is subject to the funding requirements of section 412 of the Code. The notice is required to be provided to participants and alternate payees for whom the amendment is reasonably expected to reduce significantly the rate of future benefit accrual and to employee organizations representing those participants. The statute generally requires the plan administrator to provide the notice within a reasonable time before the effective date of the plan amendment.
A plan amendment that is subject to the notice requirements of section 4980F of the Code and section 204(h) of ERISA (section 204(h) amendment) may be subject to additional reporting and disclosure requirements under title I of ERISA, such as the requirement to provide a summary of material modifications (SMM) describing the amendment. Notice under section 4980F of the Code and section 204(h) of ERISA (section 204(h) notice) must be provided in accordance with the provisions of these regulations even though sections 102(a) and 104(b) of ERISA also may require that an SMM describing the plan amendment be furnished to participants covered under the plan and beneficiaries receiving benefits under the plan. The Department of Labor has advised the IRS that a plan administrator who provides a section 204(h) notice to applicable individuals in accordance with this final rule will be treated as having furnished those individuals with an SMM regarding the section 204(h) amendment. The Department of Labor has also advised the IRS that furnishing the notice to the last known address of an individual would be sufficient for this purpose where the plan utilizes a method of delivery described in 29 CFR 2520.104b-1 and the fiduciaries of the plan have taken reasonable steps to keep plan records up-to-date and to locate lost or missing participants. Finally, the Department of Labor noted that the plan administrator is required to satisfy any other requirements regarding the furnishing of SMMs or updated summary plan descriptions, including, for example, satisfaction of the requirement to furnish an SMM to any other participants covered under the plan, and to beneficiaries receiving benefits under the plan, who are entitled to an SMM regarding the amendment.
Rev. Rul. 2002-42 (2002-28 I.R.B. 76), provides that a conversion of a money purchase pension plan into a profit-sharing plan is considered a significant reduction in the rate of future benefit accrual under the money purchase pension plan, thus requiring notice under section 4980F of the Code and section 204(h) of ERISA. As stated in the revenue ruling, allocations under the profit-sharing plan are not benefit accruals under the money purchase pension plan for purposes of determining whether there is a reduction in the rate of future benefit accrual. Accordingly, the final regulations clarify that a plan amendment to convert a money purchase pension plan into a profit-sharing or any other individual account plan that is not subject to section 412 of the Code (including a merger, consolidation, or transfer) is deemed to be a plan amendment that provides for a significant reduction in the rate of
A commentator questioned the provisions of the proposed regulations under which the determination of whether there is a reduction in the rate of future benefit accrual would be based on the whether the amendment is reasonably expected to reduce “the benefits accruing for a year.” The commentator objected on the grounds that this could require section 204(h) notice for an amendment that increases benefits in one year and then reduces them in the next, even though the aggregate benefit over the two years might not be reduced or might even be increased in the aggregate. The final regulations retain this rule, but clarify in an example that where a reduction occurs at the same time as an immediate increase in accrued benefits such that the participant's aggregate benefit can never be less than what it would have been had the amendment not been adopted, the reduction is not significant.
A commentator suggested that the regulations be revised to clarify that only contributions or forfeitures that are allocated to a participant's account be considered in determining whether a plan amendment to an individual account plan reduces the rate of future benefit accrual. The commentator recommended this revision to clarify that an amendment reducing a contribution formula is not considered insignificant solely because expected future investment returns might offset a portion of the reduction in the contribution formula. A clarification that reflects this suggestion has been adopted in the final regulations.
A commentator suggested that the regulations be revised to clarify the date as of which applicable individuals should be identified. The commentator argued that the lack of a clear determination date would make it difficult, from an administrative standpoint, for plans to identify applicable individuals due to turnover among participants. The final regulations provide that whether a plan participant or an alternate payee is an applicable individual is determined on a typical business day that is reasonably proximate to the time the section 204(h) notice is provided (or at the latest date for providing section 204(h) notice, if earlier), based on all relevant facts and circumstances. An example to this effect has been added to the final regulations.
A commentator stated that Treasury and IRS should issue regulations defining the terms
A number of comments addressed what constitutes a reasonable period for providing a section 204(h) notice. The proposed regulations included a generally applicable 45-day advance notice rule with exceptions for amendments in connection with certain business transactions and small plans. Some comments recommended that notice generally be required to be provided more than 45 days in advance of the effective date of the section 204(h) amendment and others recommended that notice generally be allowed to be provided less than 45 days in advance of the effective date of the section 204(h) amendment. The approach in the proposed regulations was designed to strike a balance between providing participants with sufficient time to understand and consider the information in the notice and allowing employers to effect changes in their plans for business reasons within a reasonable time, and has been retained in the final regulations.
A commentator requested clarification that section 204(h) notice may be provided before the adoption date of the amendment. The commentator noted that neither section 4980F of the Code nor section 204(h) of ERISA prevents a plan administrator from providing section 204(h) notice before the adoption date of the amendment. The regulations have not been revised to reflect this suggestion because the statute is already sufficiently clear that section 204(h) notice may be provided before the adoption of the amendment.
A commentator suggested that the regulations be revised to require that a senior officer of the plan sponsor or the plan administrator certify to employees of the plan sponsor and the IRS that the disclosures in the section 204(h) notice accurately describe the effects of the amendment and that the notice is presented in a manner that is understandable to the average applicable individual. The commentator also suggested that the senior officer should certify that the section 204(h) notice provided to applicable individuals does not contain any false or misleading information. The commentator argued that this certification would not be burdensome to plan sponsors if they have exercised due diligence concerning the content of the section 204(h) notice. Because of concerns about the usefulness of such a rule as well as whether there is statutory authority for such a rule, this suggestion has not been adopted.
A commentator suggested that the regulations revise the definition of an egregious violation to distinguish between intentional and negligent acts of failure. The commentator stated that it is possible that a trustee or plan sponsor may make a decision not to provide section 204(h) notice that the trustee or plan sponsor thought was prudent at the time but later determined was a mistake. The commentator argued that these types of decisions, which may be negligent but not intentional, should not be considered egregious failures. The commentator suggested that the final regulations be revised to provide that an egregious failure is an action resulting from a deliberate choice by the plan sponsor, in which the plan sponsor
Section 204(h)(6)(B) of ERISA generally defines an egregious failure as a failure within the control of the plan sponsor that is either an intentional failure or a failure to provide most of the individuals with most of the information they are entitled to receive. Further, section 204(h)(6)(A) of ERISA provides that, in the case of any egregious failure to meet any requirement of section 204(h) with respect to any plan amendment, the provisions are applied so that all applicable individuals are entitled to the greater of the benefits to which they would have been entitled without regard to the amendment, or the benefits under the plan with regard to the amendment. Accordingly, these suggestions were not adopted in the final regulations because they would conflict with the plain language of section 204(h) of ERISA.
Section 4980F of the Code and section 204(h) of ERISA require that section 204(h) notice be written in a manner calculated to be understood by the average plan participant and that it provide sufficient information to allow applicable individuals to understand the effect of the amendment. Q&A-11 of these final regulations sets forth the content requirements for section 204(h) notice. The final regulations retain the basic structure of Q&A-11 in the proposed regulations, but include a number of clarifications, including clarifying that the content must permit the applicable individual to determine the approximate magnitude of the reduction applicable to that individual. The regulations provide that this requirement is deemed to be satisfied if the notice includes illustrative examples satisfying certain conditions. At the request of a commentator, the final regulations clarify that individualized benefit statements may be used in lieu of illustrative examples if the statements include the same information as illustrative examples, such as showing the approximate range of the reductions for the individual if the reductions vary over time and identification of the assumptions used in the projections.
A commentator suggested that the final regulations be revised to distinguish between a reduction in the rate of future benefit accrual by collective bargaining agreements and a reduction in the rate of future benefit accrual by plan amendments. Multiemployer plans often incorporate the provisions of related collective bargaining agreements by reference. The commentator argued that when the rate of future benefit accrual is being reduced by a change to a collective bargaining agreement, section 204(h) notice is not required because there is no plan amendment relating to the reduction. The commentator suggested that the final regulations include an example clarifying that in situations where there is an automatic benefit change that is linked to a collective bargaining agreement, section 204(h) notice is not required, or at a minimum that some relief be provided to allow the amendment to go into effect quickly. The IRS and Treasury believe that when a benefit formula in a plan document incorporates provisions of the collective bargaining agreement by reference, those provisions are part of the plan. Accordingly, the final regulations provide a rule in Q&A-7(a)(2) that if all or a part of a plan's rate of future benefit accrual, or an early retirement benefit or retirement-type subsidy provided under the plan, depends on provisions in another document that are referenced in the plan document, a change in the provisions of the other document is an amendment of the plan. An example illustrating this rule has been added to the final regulations.
The IRS and Treasury recognize that multiemployer plans may need additional time to comply with the requirements of Q&A-7(a)(2) of these final regulations, therefore the effective date of this rule has been delayed until January 1, 2004. In addition, because of the special characteristics of multiemployer plans (
Except with respect to Q&A-7(a)(2), these regulations are applicable to amendments with an effective date that is on or after September 2, 2003.
The provisions of Q&A-7(a)(2) of these regulations are applicable to amendments with an effective date that is on or after January 1, 2004.
It has been determined that this Treasury decision 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.
It is hereby certified that the collection of information in these final regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that small entities generally do not have very complex benefit structures in their plans, or many different classes of participants who will be differently affected by an amendment reducing the rate of future benefit accrual. Small entities also have fewer employees, and thus they are required to provide section 204(h) notice to fewer individuals. Accordingly, the time required to for them to prepare and provide section 204(h) notice will usually be modest. Furthermore, because most small entities will only be affected when they amend the retirement plans they sponsor to reduce or eliminate benefits, and most small entities will not so amend their retirement plans frequently, it is generally expected that most small entities would be required to provide section 204(h) notice only once over the course of several years. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required.
Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Pamela R. Kinard, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the Internal Revenue Service and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Excise taxes, Pensions, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
26 U.S.C. 7805 * * *
Section 54.4980F-1 also issued under 26 U.S.C. 4980F.* * *
The following questions and answers concern the notification requirements imposed by 4980F of the Internal Revenue Code and section 204(h) of ERISA relating to a plan amendment of an applicable pension plan that significantly reduces the rate of future benefit accrual or that eliminates or significantly reduces an early retirement benefit or retirement-type subsidy.
Q-1. What are the notice requirements of section 4980F(e) of the Internal Revenue Code and section 204(h) of ERISA?
A-1. (a)
(b)
Q-2. What are the differences between section 4980F and section 204(h)?
A-2. The notice requirements of section 4980F generally are parallel to the notice requirements of section 204(h), as amended by the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16 (115 Stat. 38) (2001) (EGTRRA). However, the consequences of the failure to satisfy the requirements of the two provisions differ: Section 4980F imposes an excise tax on a failure to satisfy the notice requirements, while section 204(h)(6), as amended by EGTRRA, contains a special rule with respect to an egregious failure to satisfy the notice requirements. See Q&A-14 and Q&A-15 of this section. Except to the extent specifically indicated, these regulations apply both to section 4980F and to section 204(h).
Q-3. What is an “applicable pension plan” to which section 4980F and section 204(h) apply?
A-3. (a)
(b)
Q-4. What is “section 204(h) notice” and what is a “section 204(h) amendment”?
A-4. (a)
(b) A
Q-5. For which amendments is section 204(h) notice required?
A-5. (a)
(b)
(c)
(d)
Q-6. What is an amendment that reduces the rate of future benefit accrual or reduces an early retirement benefit or retirement-type subsidy for purposes of determining whether section 204(h) notice is required?
A-6. (a)
(b)
(2)
(3)
(c)
Q-7. What plan provisions are taken into account in determining whether an amendment is a section 204(h) amendment?
A-7. (a)
(2)
(b)
(c)
(i)
(ii)
(i)
(ii)
Q-8. What is the basic principle used in determining whether a reduction in the rate of future benefit accrual or a reduction in an early retirement benefit or retirement-type subsidy is significant for purposes of section 4980F and section 204(h)?
A-8. (a)
(b)
(c)
(d)
(i)
(ii)
Q-9. When must section 204(h) notice be provided?
A-9. (a)
(b)
(c)
(d)
(2)
(3)
(e)
Q-10. To whom must section 204(h) notice be provided?
A-10. (a)
(b)
(c)
(d)
(e)
(f)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
Q-11. What information is required to be provided in a section 204(h) notice?
A-11. (a)
(2)
(3)
(ii)
(4)
(B) To the extent any expected reduction is not uniformly applicable to all participants, the notice must either identify the general classes of participants to whom the reduction is expected to apply, or by some other method include sufficient information to allow each applicable individual receiving the notice to determine which reductions are expected to apply to that individual.
(ii)
(B)
(C)
(D)
(5)
(6)
(ii)
(b)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(B) Plan D is amended, effective July 1, 2005, to change the formula for all future accruals to a cash balance formula under which the opening account balance for each participant on July 1, 2005, is zero, hypothetical pay credits equal to 5 percent of pay are credited to the account thereafter, and hypothetical interest is credited monthly based on the applicable interest rate under section 417(e)(3) of the Internal Revenue Code at the beginning of the quarter. Any participant who terminates employment with vested benefits can receive an actuarially equivalent annuity (based on the same reasonable actuarial assumptions that are specified in Plan D) commencing at any time after termination of employment and before the plan's normal retirement age of 65. The benefit resulting from the hypothetical account balance is in addition to the benefit accrued before July 1, 2005 (taking into account only service and highest 3-year pay before July 1, 2005), so that it is reasonably expected that no wear-away period will result from the amendment. The plan administrator expects that, as a general rule, depending on future pay increases and future interest rates, the rate of future benefit accrual after the conversion is higher for participants who accrue benefits before approximately age 50 and after approximately age 70, but is lower for participants who accrue benefits between approximately age 50 and age 70.
(C) The plan administrator of Plan D announces the conversion to a cash balance formula on May 16, 2005. The announcement is delivered to all participants and includes a written notice that describes the old formula, the new formula, and the effective date.
(D) In addition, the notice states that the Plan D formula before the conversion provided a normal retirement benefit equal to the product of a participant's number of years of service multiplied by 1.5 percent multiplied by the participant's average pay over the 3 years for which the average is the highest (highest 3-year pay). The notice includes an example showing the normal retirement benefit that will be accrued after June 30, 2005 for a participant who is age 49 with 10 years of service at the time of the conversion. The plan administrator reasonably believes that such a participant is representative of the participants whose rate of future benefit accrual will be reduced as a result of the amendment. The example estimates that, if the participant continues employment to age 65, the participant's normal retirement benefit for service from age 49 to age 65 will be $657 per month for life. The example assumes that the participant's pay is $50,000 at age 49. The example states that the estimated $657 monthly pension accrues over the 16-year period from age 49 to age 65 and that, based on assumed future pay increases, this amount annually would be 9.1 percent of the participant's highest 3-year pay at age 65, which over the 16 years from age 49 to age 65 averages 0.57 percent per year multiplied by the participant's highest 3-year pay. The example also states that the sum of the monthly annuity accrued before the conversion in the 10-year period from age 39 to age 49 plus the $657 monthly annuity estimated to be accrued over the 16-year period from age 49 to age 65 is $1,235 and that, based on assumed future increases in pay, this would be 17.1 percent of the participant's highest 3-year pay at age 65, which over the employee's career from age 39 to age 65 averages 0.66 percent per year multiplied by the participant's highest 3-year pay. The notice also includes two other examples with similar information, one of which is intended to show the circumstances in which a small reduction may occur and the other of which shows the largest reduction that the plan administrator thinks is likely to occur. The notice states that the estimates are based on the assumption that pay increases annually after June 30, 2005, at a 4 percent rate. The notice also specifies that the applicable interest rate under section 417(e) for hypothetical interest credits after June 30, 2005 is assumed to be 6 percent, which is the section 417(e) of the Internal Revenue Code applicable interest rate under the plan for 2005.
(ii)
(i)
(ii)
Q-12. What special rules apply if participants can choose between the old and new benefit formulas?
A-12. In any case in which an applicable individual can choose between the benefit formula (including any early retirement benefit or retirement-type subsidy) in effect before the section 204(h) amendment (old formula) or the benefit formula in effect after the section 204(h) amendment (new formula), section 204(h) notice has not been provided unless the applicable individual has been provided the information required under Q&A-11 of this section, and has also been provided sufficient information to enable the individual to make an informed choice between the old and new benefit formulas. The information required under Q&A-11 of this section must be provided by the date otherwise required under Q&A-9 of this section. The information sufficient to enable the individual to make an informed choice must be provided within a period that is reasonably contemporaneous with the date by which the individual is required to make his or her choice and that allows sufficient advance notice to enable the individual to understand and consider the additional information before making that choice.
Q-13. How may section 204(h) notice be provided?
A-13. (a)
(b)
(i)
(ii)
(c)
(i) Either the notice is actually received by the applicable individual or the plan administrator takes appropriate and necessary measures reasonably calculated to ensure that the method for providing section 204(h) notice results in actual receipt of the notice by the applicable individual.
(ii) The plan administrator provides the applicable individual with a clear and conspicuous statement, in electronic or non-electronic form, that the applicable individual has a right to request and obtain a paper version of the section 204(h) notice without charge and, if such request is made, the applicable individual is furnished with the paper version without charge.
(iii) The requirements of this section must otherwise be satisfied. Thus, for example, a section 204(h) notice provided through an electronic method must be delivered on or before the date required under Q&A-9 of this section and must satisfy the requirements set forth in Q&A-11 of this section, including the content requirements and the requirements that it be written in a manner calculated to be understood by the average plan participant and to apprise the applicable individual of the significance of the notice. Accordingly, when it is not otherwise reasonably evident, the recipient should be apprised (either in electronic or in non-electronic form), at the time the notice is furnished electronically, of the significance of the notice.
(2)
(i)
(ii)
(i)
(ii)
(3)
(i) The applicable individual has affirmatively consented electronically, or confirmed consent electronically, in a manner that reasonably demonstrates the applicable individual's ability to access the information in the electronic form in which the notice will be provided, to receiving section 204(h) notice electronically and has not withdrawn such consent;
(ii) The applicable individual has provided, if applicable, in electronic or non-electronic form, an address for the receipt of electronically furnished documents;
(iii) Prior to consenting, the applicable individual has been provided, in electronic or non-electronic form, a clear and conspicuous statement indicating—
(A) That the consent can be withdrawn at any time without charge;
(B) The procedures for withdrawing consent and for updating the address or other information needed to contact the applicable individual;
(C) Any hardware and software requirements for accessing and retaining the documents; and
(D) The information required by paragraph (c)(1)(ii) of this Q&A-13; and
(iv) After consenting, if a change in hardware or software requirements needed to access or retain electronic records creates a material risk that the applicable individual will be unable to access or retain the section 204(h) notice—
(A) The applicable individual is provided with a statement of the revised hardware and software requirements for access to and retention of the section 204(h) notice and is given the right to withdraw consent without the imposition of any fees for such withdrawal and without the imposition of any condition or consequence that was not disclosed at the time of the initial consent; and
(B) The requirement of paragraph (c)(3)(i) of this Q&A-13 is again complied with.
Q-14. What are the consequences if a plan administrator fails to provide section 204(h) notice?
A-14. (a)
(2)
(3) Example. The following example illustrates the provisions of this paragraph (a):
(i)
(ii)
(b)
(c)
Q-15. What are some of the rules that apply with respect to the excise tax under section 4980F?
A-15. (a)
(b)
(1) The person exercised reasonable diligence in attempting to deliver section 204(h) notice to applicable individuals by the latest date permitted under this section; and
(2) At the latest date permitted for delivery of section 204(h) notice, the person reasonably believes that section 204(h) notice was actually delivered to each applicable individual by that date.
(c)
(i)
(ii)
Q-16. How do section 4980F and section 204(h) apply when a business is sold?
A-16. (a)
(b)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
Q-17. How are amendments to cease accruals and terminate a plan treated under section 4980F and section 204(h)?
A-17. (a)
(2)
(i)
(ii)
(3)
(b)
(c)
Q-18. What are the effective dates of section 4980F, section 204(h), as amended by EGTRRA, and these regulations?
A-18. (a)
(2)
(3)
(ii)
(b)
(2)
(c)
26 U.S.C. 7805.
(b) * * *
Coast Guard, DHS.
Temporary final rule; correction.
The Coast Guard published a final rule on March 25, 2003 establishing security zones in Tampa Bay, Port of Tampa, Port of Saint Petersburg, Port Manatee, Rattlesnake, Old Port Tampa, Big Bend, Weedon Island, and Crystal River, Florida. The rule erroneously listed the geographic positions, descriptions, and size of security zones located in the waters adjacent to the Big Bend and Weedon Island power facilities. This document corrects the geographic positions, descriptions, and size of those security zones.
This correction is effective on April 9, 2003.
LCDR Dave McClellan, Coast Guard Marine Safety Office, Tampa at (813)228-2189/91 X 102.
The Coast Guard published a final rule in the
(14) Big Bend, Tampa Bay, Florida. All waters of Tampa Bay, from surface to bottom, extending 50 yards from the shore, seawalls and piers around the Big Bend Power Facility, encompassed by a line connecting the following points: 27°47.85′ N, 082°25.02′ W then east and south along the shore and pile to 27°47.63′ N, 082°24.70′ W then north along the shore to 27°48.17′ N, 082°24.70′ W then north and west along a straight line to 27°48.12′ N, 082°24.88′ W then south along the shore and pile to 27°47.85′ N, 082°25.02′ W, closing off entrance to the Big Bend Power Facility.
This correction changes the geographic description and positions to:
(14) Big Bend, Tampa Bay, Florida. All waters of Tampa Bay, from surface to bottom, adjacent to the Big Bend Power Facility, and within an area bounded by a line connecting the following points: 27°47.85′ N, 082°25.02′ W then east and south along the shore and pile to 27°47.63′ N, 082°24.70′ W then north along the shore to 27°48.02′ N, 082°24.70′ W then north and est along a straight line to 27°48.12′ N, 082°4.88′ W then south along the shore and pile to 27°47.85′ N, 082°25.02′ W, closing off entrance to the Big Bend Power Facility.
In our discussion of the rule and in paragraph (a)(15) of that rule, the geographic positions and description for the Weedon Island Power Facility were erroneously published as:
(15) Weedon Island, Tampa Bay, Florida. All waters of Tampa Bay, from surface to bottom, extending 50 yards from the shore, seawall and piers around the Power Facility at Weedon Island encompassed by a line connecting the following points: 27°51.52′ N, 082°35.82′ W then north and east along the shore to 27°51.54′ N, 082°35.78′ W then north to 27°51.68′ N, 082°35.78′ W then north to 27°51.75′ N, 082°35.78′ W closing off entrance to the canal then north to 27°51.89′ N, 082°35.82′ W then east along the shore to 27°51.89′ N, 082°36.10′ W then east to 27°51.89′ N, 082°36.14′ W closing off entrance to the canal.
This correction changes the geographic description and positions to:
(15) Weedon Island, Tampa Bay, Florida. All waters of Tampa Bay, from surface to bottom, extending 50 yards from the shore, seawall and piers around the Power Facility at Weedon Island encompassed by a line connecting the following points: 27°51.52′ N, 082°35.82′ W then north and east along the shore to 27°51.54′ N, 082°35.78′ W then north to 27°51.68′ N, 082°35.78′ W then north to 27°51.75′ N, 082°35.78′ W closing off entrance to the canal then north to 27°51.89′ N, 082°35.82′ W then west along the shore to 27°51.89′ N, 082°36.10′ W then west to 27°51.89′ N, 082°36.14′ W closing off entrance to the canal.
This correction is needed to correct minor discrepancies in the coordinates and physical description for fixed security zones in waters adjacent to Big Bend and Weedon Island Power facilities in Tampa Bay.
National Park Service, Interior.
Final rule.
This rule designates areas where personal watercraft (PWC) may be used in Lake Mead National Recreation Area, Nevada and Arizona. This rule implements the provisions of the National Park Service (NPS) general regulation authorizing parks to allow the use of PWC by promulgating a special regulation. The
This rule becomes effective April 9, 2003.
Mail Inquiries to: Jim Holland, Management Assistant, Lake Mead National Recreation Area, 601 Nevada Way, Boulder City, Nevada 89005.
Kym Hall, Regulations Program Manager, National Park Service, 1849 C Street, NW., Room 7413, Washington, DC 20240. Phone: (202) 208-4206.
In May 1998 the Bluewater Network, a coalition of more than 70 organizations, filed a petition urging the National Park Service to initiate the rulemaking process to prohibit PWC use throughout the National Park System. In response to the petition, the NPS proposed a specific PWC regulation premised on the notion that PWC use should be evaluated by the individual park area to determine if the use is an appropriate use of the park (63 FR 49312, Sept. 15, 1998).
The NPS envisioned the servicewide regulation as an opportunity to evaluate impacts from PWC use before authorizing the use. The preamble to the servicewide regulation calls the regulation a “conservative approach to managing PWC use” considering the resource concerns, visitor conflicts, visitor enjoyment, and visitor safety. During a 60-day comment period, the NPS received nearly 20,000 comments.
After reviewing the public comments and further review, the NPS promulgated a final regulation that prohibited PWC use in all units, until the individual park areas determine PWC appropriateness for continued use (36 CFR 3.24(a), 65 FR 15077-90, Mar. 21, 2000). The final rule provided a 2-year grace period for 21 parks. Specifically, the regulation allowed the NPS to designate PWC areas and to continue PWC use by promulgating a special regulation in park areas, including Lake Mead National Recreation Area. Ten NRA's were given an additional option of authorizing PWC use through the units' superintendents' compendium (36 CFR 3.24(b)), but only if the requirements of 36 CFR 1.5 were met. This additional designation method was provided for in the units because of their congressional designation as national recreation areas and specific congressional intent to provide for motorized watercraft use in these parks.
In response to the PWC final regulation, Bluewater Network sued the NPS. The organization challenged the National Park Service decision to provide a 2-year grace period allowing continued PWC use in 21 park units while prohibiting PWC use in other park units. In addition, the organization also disputed the National Park Service decision to allow 10 park units the additional option of authorizing continued PWC use after 2002 using the procedures of the superintendents' compendium (36 CFR 1.5), which would not require the opportunity for public input through a notice and a comment rulemaking process.
In response to the suit, the National Park Service and the environmental group negotiated a settlement. The resulting settlement agreement accepted by the court on April 12, 2001, required each of those parks authorizing continued PWC use must promulgate a park-specific special regulation. The settlement agreement acknowledged that the NEPA analysis must, at a minimum, evaluate PWC impacts on water quality, air quality, soundscapes, wildlife, wildlife habitat, shoreline vegetation, visitor conflicts, and visitor safety.
In 2001 the National Park Service adopted its revised NPS Management Policies (NPS 2001) for the National Park System. The policy document included a provision addressing PWC use in park units and the need for proper evaluation before authorizing use in a specific park unit (8.2.3.3). The policy states that the use should be evaluated based on the park's enabling legislation, resources, values, other park uses, and overall management strategies.
On September 5, 2002, the National Park Service published a draft rule for the operation of PWC at Lake Mead NRA (67 FR 56785-94). The proposed rule for PWC use was based on alternative C (the preferred alternative) in the Draft Environment Impact Statement/Lake Management Plan (DEIS/LMP). The 60-day public comment period on the proposed rule ran from September 5 to November 4, 2002.
The NPS is granted broad statutory authority under various acts of Congress to manage and regulate water activities in areas of the National Park System, 16 U.S.C. 1, 1a-2(h) and 3. The NPS Organic Act, 16 U.S.C. 1
The Organic Act and the other statutory authorities of the NPS vest us with substantial discretion in determining how best to manage park resources and provide for park visitors. “Courts have noted that the Organic Act is silent as to the specifics of park management and that under such circumstances, the NPS has broad discretion in determining which avenues best achieve the Organic Act's mandate * * *. Further, the NPS is empowered with the authority to determine what uses of park resources are proper and what proportion of the park resources are available for each use”
Over the years, NPS areas have been impacted with new, and what often prove to be controversial, recreational activities. These activities tend to gain a foothold in NPS areas in their infancy, before a full evaluation of the possible impacts and ramifications that expanded use will have on the area can be initiated, completed and considered. PWC use fits this category.
PWC use is a relative new recreational activity at Lake Mead NRA. PWC, primarily stand-up models, were first observed on Lakes Mead and Mohave in the mid-1970s. In the 1980s, the first sit-down models were available with one-or two-person capacities. During this time, PWC were manufactured by four companies, the first PWC magazines were published and the typical cost of a PWC was $6,600.
From the mid-1980s through the 1990s, sales grew rapidly, then leveled off starting in the mid-1990s. According to visitor use surveys in 1993, the use of PWCs at Lake Mead NRA during this time constituted 15% of the boats on the water at any one time. A rapid increase in PWCs was observed in 1994, when their use jumped to 30% of the boats on the water at any one time.
Today monitoring shows that PWC use constitutes 35% of the boats on the water at any one time. There are 11,000 PWC registered in Clark County, Nevada and thousands more in the region surrounding Lake Mead NRA. The highest densities are observed in the urban interface areas of Lake Mead and in the southern portions of Lake Mohave.
Some changes have been made in the Lake Management Plan/Final Environmental Impact Statement. Five percent of the park waters will be managed for primitive and semiprimitive recreational settings. This is an increase of three percent over the acreage in the draft rule. PWC use is prohibited in primitive and semiprimitive zones.
Bonelli Bay in the southern portion of the Virgin Basin was added to the semiprimitive zone on Lake Mead, as was the Lake Mead confluence with the Muddy River. These two areas account for the increased acreage in the semiprimitive zoning over the draft plan. The Overton Wildlife Management Area boundary defines the semiprimitive area of the Muddy River confluence and it is presently managed during the waterfowl hunting season as a flat wake area. This revision prohibits the use of PWC in the Overton Wildlife Management Area year-round.
The recreational zoning in Black Canyon has been modified to allow additional boating access for five days per week during the peak boating season between Memorial Day and Labor Day each year. During this period the canyon will be managed as rural natural zone with no special speed or horsepower restrictions. PWC use in the canyon is authorized during this period. The remainder of the year Black Canyon will be managed for semiprimitive conditions with a 65-horsepower maximum. As proposed in the LMP/DEIS, Black Canyon will be managed as a primitive setting two days per week (Sunday and Monday) year round.
In response to comments from the States of Arizona and Nevada, the proposed 100-foot flat wake zone around the entire lakes has been revised to a 200-foot flat wake zone around beaches occupied by bathers, around boats at the shoreline and a person in the water or at the shoreline. This revision is more closely aligned with existing Nevada boating law and allows the NPS to move toward the goal of providing unified boating law for the interstate waters of Lakes Mead and Mohave.
There are a number of actions that will require subsequent rulemaking in the implementation of the Lake Management Plan. This rule has been tailored specifically to address PWC operation in response to the general regulation in 36 CFR 3.24 prohibiting PWC use except by special regulation. The National Park Service focused specifically on PWC to prevent or minimize the period that PWC use would be restricted at Lake Mead NRA. It is the National Park Service's intention to move ahead with the additional rulemaking that will apply the flat-wake rule to all watercraft and to implement other aspects of the approved Lake Management Plan (LMP).
From an economic perspective, both alternative C (the continued use of PWC in 95% of Lake Mead and other restrictions as presented in this rulemaking) and alternative D, which would permit all two stroke engines and PWC in all of Lake Mead, resulted in the highest quantified net benefits, with alternative D resulting in a slightly higher amount of net quantified benefits. However, the National Park Service chose alternative C because certain costs could not be quantified in the net economic benefits. Those costs, relating to non-PWC use, aesthetics, ecosystem protection, human health and safety, congestion, or non-use values, would likely be greater for alternative D than for alternative C. Given that the quantified net benefits of alternatives C and D are already similar (
Alternative A, the no action alternative, represents the baseline conditions of this rulemaking. Under that alternative, all PWC use would be
As with the benefits described above, the costs of any alternative are measured relative to the baseline conditions, which are represented by alternative A. Therefore, there are no incremental costs associated with alternative A. The primary group that would incur costs under alternatives B, C, and D are the park visitors who do not use PWCs and whose park experiences would be negatively affected by PWC use within the park. At Lake Mead, non-PWC uses include boating, canoeing, fishing, and hiking. Additionally, the public could incur costs associated with impacts from alternatives B, C, and D to aesthetics, ecosystem protection, human health and safety, congestion, and non-use values. However, these costs could not be quantified for all alternatives due to a lack of available data.
There are other costs associated with alternatives B, C, and D relating to NPS enforcement of PWC restrictions. Those costs, projected over a 10-year horizon, are summarized in the table below.
The quantified net benefits associated with alternatives B, C, and D are presented in the table below. These net benefits do not account for the costs to non-PWC users, or those relating to aesthetics, ecosystem protection, human health and safety, congestion, or non-use values due to a lack of available data. Therefore, these net benefit estimates do not represent all costs. If all costs could be incorporated, the indicated net benefits for each alternative would be lower. Nevertheless, these estimates present a likely range of net benefits that can be estimated from available information.
A proposed rule was published for public comment on September 5, 2002 (67 FR 56785-94), with the comment period lasting until November 4, 2002. The NPS received 1,696 timely written responses regarding the proposed regulation. Of the responses, 1,636 were form letters in 3 separate form letter formats and 60 were individual letters. There were 1,060 electronic mailings. Responses received included 51 from individuals, 2 from businesses, 5 from organizations and 2 from public agencies.
Within the analysis, the term “commenter” refers to an individual, business, or organization that responded. The term “comments” refers to statements made by a commenter.
1. There were a variety of commenters, including the Personal Watercraft Industry Association and United States Coast Guard (USCG), who
2. The PWIA requested that PWC used for water-skiing and wakeboarding be permitted to launch from the shoreline like other motorized boats.
3. There were a number of comments stating that restricted PWC use should be permitted in Black Canyon.
4. Numerous commenters stated that the National Park Service is suggesting that one type of recreational experience is more meaningful than another.
5. Many commenters believed they should be able to use their USCG legal boat in every waterway where similar motorized boating activity occurs (
As presented in the description of the alternatives in the draft and final EIS, the National Park Service evaluated and chose the best regulatory approach in the preferred alternative in order to maintain the opportunities for various types of recreation while protecting the resources of the Lake Mead NRA. Some elements of the final EIS modified preferred alternative/final rule, such as the proposed recreational opportunity zoning, regulate PWC separately from other motorcraft, while other aspects, such as the flat wake zone and phase-out of old engine technology, regulates engine type instead of hull design.
6. We received numerous comments citing the Organic Act and the mission of the National Park Service to leave the resources and wildlife under its care “unimpaired for the enjoyment of future generations.” We received a number of letters stating, federal law clearly prohibits activities that impair or derogate the NPA's resources or values.
An impairment to a particular park resource or park value occurs when in the professional judgment of the responsible NPS manager the impact would harm the integrity of park resources or values, including the opportunity that otherwise would be present for the enjoyment of those resources or values. In making these determinations, the NPS managers must consider the provisions of the park's enabling legislation. For each resource topic, the draft and final EIS establishes thresholds or indicators of magnitude of impact. Should the impact approach a “major” level of intensity, it is one indication that impairment could result. For each impact topic, when the intensity approached “major,” the team would consider mitigation measures to reduce the potential for “major” impacts, thus reducing the potential for impairment.
In response to growing concern regarding potential impacts from PWC, the National Park Service began an extensive review and regulation process. While comments were received opposing continued use of the vessel within units of the park system, other comments supported its use with certain conditions designed to protect park resources and values. Recognizing that some units needed to complete more local planning and analysis of impact was needed, the final servicewide PWC regulation provided for specified local decision-making on a park by park basis.
The servicewide regulation recognized the need for park areas wishing to continue PWC use to undertake and complete an analysis of the impacts to park resources and values that could result from continued use.
In the draft and final EIS, three of the four alternatives analyzed various PWC scenarios, along with other vessel management and recreational objectives. The alternatives also consider means to mitigate the effects of PWC on park resources and values, including limiting use in areas where management
The conclusion of the modified preferred alternative in the final EIS, was that continued PWC use, would not result in an impairment of park resources and values for which the Lake Mead Recreation Area was established to protect for future generations.
7. We received one comment from an individual who suggested we establish a Citizens Recreational Taskforce to address the future management of recreational use at Lake Mead NRA.
The National Park Service met with a wide variety of user groups concerning the management of recreational use of park waters. A listing of these meetings and organizations is included in the final EIS. These meetings represent the National Park Service approach to seeking specific user group input into the planning and decision making process. Because the park plans to continue this process, we do not think that a citizen's recreational taskforce is necessary.
8. There were one or more commenters who expressed concern for the impact of the rule on the local economies of Laughlin/Bullhead City and the Las Vegas area.
The National Park Service expects that by 2012, most boat owners would already be in compliance with the 2006 EPA marine engine standards. The impact from the engine standards on boat owners is expected to be minimal. PWC manufacturers currently offer some models that are compliant with EPA's 2006 standards and PWC purchased after 2006 would be made compliant. Because the life of a PWC is estimated at 5 to 10 years (
It may be reasonable to assume that people shopping before 2006 for new watercraft would only consider purchasing those models with compliant engines in response to the public announcement that only 2006-compliant engines would be allowed at Lake Mead NRA after 2012. It is the NPS intention that the 10-year advance notice will provide ample opportunity for people to consider engine compliance when making a purchase.
9. There were numerous comments stating that “much attention has been given to so-called ‘cleaner and quieter’ PWC.” They say these machines do not solve all problems associated with the PWC and cite recent research studies that find that the new technology emits as much or more carbon monoxide and nitrogen oxide.
The safety record of PWC at Lake Mead can be improved by measures such as boater safety education. The preferred alternative in the draft EIS and the modified preferred alternative in the final EIS proposes a requirement of boater safety training for all vessel operators born after 1983. States such as California report operator inexperience as the leading cause of PWC-related accidents (NTSB 1998). Boater education incorporating PWC-specific instruction has been shown to reduce PWC accidents in Connecticut and Michigan (NTSB 1998).
The industry's conversion to the four-stroke technology and the use of resonators is reducing the noise. Manufacturers are using noise absorbing foam and rubber padding in the construction of PWCs. Consequently, the newer technology used in PWC construction is addressing noise concerns and improvements are being observed at Lake Mead NRA.
10. There were additional comments concerning the safety record of PWC.
Safety is further addressed under the modified preferred alternative in the final EIS, where a 200-foot flat wake zone would apply to beaches occupied by swimmers, boats at the shoreline, and people at the shoreline or in the water. Coordination with the states of Nevada and Arizona would be required in order to achieve the desired uniformity of the proposed boating regulations.
When implemented, these safety measures would increase the safety of participating in all forms of recreation at Lake Mead NRA. Consequences of the preferred alternative in relation to PWC safety are described in the “Environmental Consequences” section of the draft and final EIS.
11. We received comments that cited user conflicts. Specific incidents included conflicts between PWC and kayakers, fishermen, and swimmers. A few PWC supporters said these conflicts resulted from a minority of inconsiderate PWC operators and that we should regulate inappropriate behavior or enforce existing regulations rather than prohibit PWC use.
In addition, 5% of the park waters have been zoned as primitive or semiprimitive where the management objectives are for a more quiet and tranquil setting. Visitors seeking this environment can visit these areas with some expectation of slower speeds and quieter boat operations. In these areas PWCs are prohibited and other boating use will be limited to flat wake speeds and/or electric trolling motors.
12. Some commenters cited the inefficiency of the carbureted two-stroke engines.
13. There were comments that suggested the 2012 prohibition on carbureted two-stroke engines is unnecessary.
According to the Personal Watercraft Industry Association, PWC models on the market today include the new technology reduced-emissions vessels (
14. Some commenters were concerned that the Service often lacks site-specific studies upon which to base a sound judgement on PWC use at Lake Mead. The commenters also pointed out that the National Park Service appears to overlook important studies which detail the damage these machines cause to the environment and wildlife.
The NPS determined that site-specific studies of PWC impacts on wildlife were not necessary given the limited extent of native shoreline vegetation and its limited value to wildlife. As stated in the “Natural and Cultural Resources” section of the “Affected Environment” chapter of the draft and final EIS “* * * the majority of the shoreline in the recreation area contains nonnative salt cedar (
In those few areas where there is shoreline habitat that is valuable for wildlife, such as in the willow scrub inflow areas of the Virgin and Muddy Rivers where neotropical migratory songbirds potentially nest, primitive and semiprimitive zones are proposed under the modified preferred alternative which would prohibit PWC use, waterskiing, and wakeboarding. Given the overall lack of wildlife habitat along most of the remainder of the National Recreational Area's shoreline, and the fact that PWC would be prohibited in the few areas that are deemed valuable for wildlife, the park has identified sensitive vegetation and shoreline habitat and has incorporated appropriate mitigation measures into the modified preferred alternative in the final EIS. Regarding fisheries of Lake Mead NRA, the modified preferred alternative in the final EIS proposes to use temporal shoreline zonings to
The U.S. Fish and Wildlife Service Biological Opinion is included in the final EIS in Appendix F. The biological opinion has concurred with the National Park Service determination that the preferred alternative is not likely to jeopardize the continued existence of the Southwestern willow flycatcher, bonytail chub, razorback sucker, or desert tortoise, and is not likely to destroy or adversely modify designated critical habitat for bonytail, razorback, or tortoise. In addition, the U.S. Fish and Wildlife Service agreed with the determination of no effect on the bald eagle and Yuma clapper rail. The mitigation adopted under the modified preferred alternative in the final EIS includes measures to protect spawning and nesting areas.
There is no definitive literature describing scientific measurements of PWC noise (
At Glen Canyon, sound measurements were made of a number of boats and PWC as they passed by a microphone mounted above the front of an instrumented boat. As stated in the technical report (NPS, 2002 or HMMH, 2002—Draft Technical Report on Noise: Personal Watercraft and Boating Activities at Glen Canyon National Recreation Area), controlled pass-by measurements of three PWC and one motorboat were conducted at several different speeds. Many boats and PWC were also randomly measured. In all cases, a radar gun was used to determine speed and a laser range finder was used for distance. After normalizing measurements to a common distance, maximum sound levels were computed both for 15 and 25 meters, the distance at which National Park Service watercraft noise emission regulations apply. One of the conclusions from the measurements at Glen Canyon was that, except for the boats with V-8 engines (which were louder), no significant differences were found in the sound levels produced by PWC and the other boats that were measured in the study.
15. Some comments expressed concern about the amount of raw fuel spilled into the water or on the shoreline when PWC were refueled by owners/operators at sites other than fuel docks.
16. A single commenter stated, the proposed rule, at page 56790, states that “based on fuel consumption estimates, between 1
17. One comment stated, the primary water quality concern that has been identified regarding continued PWC use is the discharge of unburned gasoline and gasoline additives from conventional carbureted two-stroke engines, as well as the spilling of such components during refueling (National Park Rulemaking at page 56790, DLMP/EIS (Lake Management Plan/Draft EIS) at pages 102, 133, 124, 188). PWC emissions in the Lake Mead area have already been reduced 25% below the 1998 baseline conditions.
The final EIS addresses impacts from PWC use as well as all watercraft on Lake Mead and Lake Mohave. Four alternatives were analyzed. Alternative A would continue the prohibition of use of PWC in the Lake Mead NRA. Alternative B would prohibit all carbureted two-stroke engines beginning in 2004. Alternative C assumes a ban on two-stroke carbureted engines for all vessels, including PWC, after 2012. Alternative D assumes that no ban would take place and that two-stroke engines would be converted in accordance with the Environmental Protection Agency's assumptions (40 CFR parts 89-91, “Air Pollution Control; Gasoline Spark-Ignition and Spark-Ignition Engines, Exemptions;” rule, 1996). Alternative C (the modified preferred alternative) is compared to alternative D because alternative D allows for a mix of older model-two stroke carbureted engines with the EPA compliant cleaner engine models (two stroke fuel injected and four stroke engines) through the life of the plan. A brief summary of the analysis of surface water quality impacts to Lakes Mead and Mohave found in the Final EIS for alternatives C and D are described below.
The approach to evaluating surface water quality impacts is found in Appendix G of the Final EIS. Engine conversion, restriction by engine type, and the total boating capacity used to calculate impacts varies between alternatives C and D. Alternative C uses a combined total boating capacity of boats for both Lakes Mead and Mohave of 5,055 boats at one time, while alternative D uses a combined total boating capacity of 5,800 boats at one time. These boating capacities reflect the heaviest use period of the summer. The threshold volumes required to meet water quality standards at Lake Mead
18. One commenter stated, EPA has confirmed that studies show most unburned gasoline and gasoline additives emitted from two-stroke marine engines evaporate from water within the first hour and 15 minutes after they are released. More specifically, at 86 degrees Fahrenheit 84% of the unburned gasoline/additive mix released into the water evaporated within 75 minutes.
19. There were a number of commenters concerned that the changeover to four-stroke and two-stroke direct injection PWC engines to meet the requirements of the EPA 2006 and CARB 2008 emission standards is occurring much more rapidly than EPA and National Park Service has estimated. Amounts of unburned fuel released at Lake Mead and Lake Mohave will accordingly continue to decline rapidly, achieving a reduction of approximately 90% from the 1998 baseline levels by 2012.
The commenter states that the data indicates that the conversion of PWC models to cleaner engines is occurring more rapidly than anticipated in the 1996 EPA analysis of the effects of the conversion rule. While the National Park Service has no reason to doubt that PWC conversions and sales may be proceeding at a greater rate than forecast by EPA, there is no survey or similar data available at this time that indicates that the engine mix at Lake Mead is proceeding at a faster or slower rate than the EPA forecast. Therefore, use of the EPA rates is considered appropriate in disclosing potential impacts to water quality.
20. One commenter stated the National Park Service committed to investigate the extent of oil and gas spills at refueling operations in the Lake Mead NRA, and to mitigate the impacts from these activities. This will further reduce the amount of unburned fuel released into the waters of the Lake Mead NRA from PWC use. Expected
21. One commenter was concerned that the USGS sampling data showed the presence of the gasoline additive MTBE. The federal government, Nevada or Arizona have not established standards or maximum contaminant levels for MTBE. EPA has adopted an advisory level of 20-40 μg/l for drinking water. The highest sample measured by USGS was 4.16 μg/l, well below this EPA advisory level. The reduction in PWC engine emissions (as well as emissions from other marine engines) at Lake Mead since the sample was measured in 1999 is not likely to be repeated.
In the analysis presented in the Final EIS in Table 50, Toxicity Benchmarks, the ecological benchmark for MTBE, which is considered preliminary chronic water quality criteria, of 51,000 μg/l was used. The table found in response to Comment Number 17 shows a negligible impact from MTBE under the modified preferred alternative (alternative C) and the baseline (alternative D). We are aware California has mandated removal of MTBE from gasoline by next year, and the EPA is considering doing the same within the near future.
22. One commenter is concerned that recent studies show that PAH emissions might increase as carbureted two-stroke PWC engines are replaced by direct injection two-stroke models and that increased PAH emissions will have adverse impacts on aquatic organisms in the Lake Mead NRA. The Kado study measured only PAH air emissions from the test chamber while the outboard engine ran in a water tank. The study says nothing about what levels of PAHs were deposited in water. It therefore can provide no basis whatsoever for suggesting that the use of current and future direct injection two-stroke PWC engines present a risk to aquatic organisms or will impair water resources in the Lake Mead NRA.
In addition, according to industry reports, it appears that the trend for conversion is toward the four-stroke model engines instead of direct injection two-stroke models. According to the PWIA, the two top selling PWC models for 2002 incorporated the four-stroke technology, which have shown to produce fewer PAH emissions. Also, in discussions with PWC retailers in the vicinity of Lake Mead, NPS has been informed that the majority of new PWC purchases have been four-stroke engines. If this trend in sales is realized and it continues, PAH emissions would be less than indicated in the analysis.
23. One commenter stated the National Park Service analysis does not reflect the dramatic decrease in PWC hydrocarbon plus nitrogen oxides (HC+NO
Note that in 2004 the conversion of carbureted two-stroke engines to cleaner engines is assumed to be the same for both alternatives C and D, but the emissions for alternative D would be higher than for alternative C. This would occur because alternative D would allow more watercraft to be in operation, compared to alternative C. The important result shown in the above table is that in 2012, alternative C would result in 287 fewer tons per year of HC+NO
Emission levels shown in the table above are not directly comparable with the emission levels submitted by the commenter because the National Park Service—Air Quality Division calculates emissions on an annual basis, and the commenter's calculations are for an average boating day during the boating season. Some assumptions made for National Park Service calculations are more conservative than those used for commenter's calculations. The National Park Service assumed that the conversions from carbureted two-stroke engines to cleaner engines would occur at the rate forecast by the Environmental Protection Agency. As shown in the table above for tons per year of estimated hydrocarbon and nitrogen oxides emissions for alternatives C and D, 21.6% conversion is assumed from 1998 levels by 2004, and 58.4% conversion by 2012. The commenter assumes a faster conversion. The commenter assumes that emissions would be reduced because a significant portion of PWC would be cleaner than EPA requirements due to compliance with the more restrictive California requirements. However, our goals for the reduction of emissions can not be achieved without the proposed 2012 restrictions.
24. One commenter expressed concern that PWC emissions are declining faster than forecast by the EPA. The existing fleet of PWC has achieved a 25% reduction in the pre-1999 baseline of HC+NO
The second assumption by the commenter is that 75% of the PWC at Lake Mead will have engines that comply with the California (CARB) conversion rule for all years, which requires that marine engine emission reductions targeted by the EPA for 2006 be achieved in California by 2001. The California rule then requires further emission reductions by 2004 and 2008 (title 13, California Code of Regulations, sections 2440-2448). The commenter assumes that 50% of the PWC users at Lake Mead will be from California and all will have CARB-compliant watercraft, and that, because of manufacturing and sales efficiencies outside of California, an additional 25% of the Lake Mead PWC users will have CARB-compliant watercraft. The National Park Service concurs that many watercraft users at Lake Mead have California-registered PWC, and that they will meet the California Air Resources Board standards.
There is no data relative to PWC at Lake Mead to confirm the 75% figure assumed by the commenter. The National Park Service emissions calculations are conservative only in the sense that it does not specifically account for watercraft that have already or will be converted to meet California Air Resources Board standards. This is not considered “overly” conservative because 50% of the park visitors originate from California, and a certain percentage of these visitors will have PWC that are compliant with the EPA 2006 rule. There is currently no data to support or refute this 75% estimate. Under the preferred alternative, the engines would be 100% compliance after 2012.
25. One commenter stated that PWC emissions of HC+NO
Clark County is currently in attainment of the federal 1-hour ozone standard. The EPA has not yet made attainment designations for the 8-hour ozone standard that was promulgated in 1997 but was delayed by litigation in implementation. Preliminary data indicates that Clark County might not attain the 8-hour ozone standard (
As shown in the previous responses, the proposed elimination of two-stroke carbureted engines from Lake Mead NRA after 2012 would result in a substantial reduction in emissions, and would contribute to the improvement of air quality in Clark County.
26. National Park Service notes that recent studies suggest changing from two-stroke carbureted to two-stroke direct injection PWC engines might increase PAH emissions. A study by Norman Y. Kado et al,
In speaking with local PWC businesses the NPS was informed that the majority of newer PWC models being sold are four-stroke engines, not two-stroke fuel injected engines, but no specific data is available. These comments concerning four-stroke sales are consistent with statements made by PWIA that nationally the two top-selling PWC models are four-stroke models. Nevertheless, while conversion of some carbureted two-stroke engines to direct-injected two-stroke engines would result in increased PAH emissions, the concurrent conversion to four-stroke engines would result in reduced PAH emissions. As shown by the commenter, using Kado data, the combined PAH emissions of one direct-injected two-stroke engine and one four-stroke engine would be slightly less than the PAH emissions of the two carbureted two-stroke engines that would be replaced. Therefore, the increase or decrease of PAH emissions as carbureted two-stroke engines are converted to cleaner engine types would depend on the relative numbers of the types of cleaner engines. The speculation of the mix of engine types would not appreciably change NPS conclusions made in the final EIS.
27. Continued PWC use on Lake Mead under the proposed rule will not pose any adverse health risks for park visitors under even the “worst case” airborne PAH concentrations that could theoretically be generated by the vessels.
28. One commenter questions the occurrence of the Southwestern willow flycatcher at the inflow areas of the Muddy and Virgin Rivers and stated that no Southwestern willow flycatchers nest within Lake Mead NRA.
As stated in the draft and final EIS under the “Affected Environment” section, much of the shoreline areas of Lakes Mead and Mohave have riparian stands that are comprised of non-native tamarisk, or are too young to provide suitable nesting habitat. However, several areas have been determined suitable, and nest sites have been located. Of particular importance are the sensitive inflow areas, which will be protected by zoning for primitive and semi-primitive settings. In addition, if surveys find nesting pairs elsewhere along Lakes Mead and Mohave, closing the area under temporal zoning could be implemented to protect these sites.
29. One commenter takes issue with the impact discussion on shorebirds and other wildlife. They state, “on the basis of anecdotal evidence (chiefly testimony from park staff) the proposed rule concludes that PWCs could disturb wildlife through the interruption of normal activities, alarm or flight, avoidance and displacement of habitat, and nest abandonment. The term “could” demonstrates that National Park Service has not obtained evidence that such disturbance actually occurs at Lake Mead NRA.”
In addition, National Park Service biologists provided information related to disturbance from motorized vessels to birds and other wildlife, and information pertaining to the sensitive shoreline areas around Lakes Mead and Mohave. This information was used in the draft and final EIS for developing mitigation and monitoring activities, and in establishing protective measures for wildlife within the recreation area. These measures, including establishing primitive and semi-primitive zones in the selected shoreline areas, will protect sensitive bird species from disturbance associated with the use of motorized vessels, including noise that flushes the birds, and wakes that disrupt nests.
30. There was concern expressed about the occurrence of the Yuma clapper rail. One commenter references the draft rule where it states that while the inflow areas of the Muddy and Virgin Rivers contain habitat that might support the endangered Yuma clapper rail, no confirmed sightings have occurred within the recreation area. The EIS concurs with this statement. However, on page 56788, the proposed rule contradicts itself, and states incorrectly that the Yuma clapper rail resides at Lake Mead NRA.
Clearly, the Yuma clapper rail cannot be said to “occupy” the shoreline or habitat of Lake Mead NRA if no one has ever seen it at the lake. This mistake should be corrected in the final rule.
31. There was one comment on the razorback sucker. The commenter points out the proposed rule states that biologists have studied the effect of motorized vessels on razorback sucker spawning areas at Lake Mead NRA for 10 years, and have concluded that such vessels, when passing through these areas interrupt spawning and generally interfere with the reproductive process. Nor do they include the studies or their data as appendices. As a result, the public and other scientists have no ability to determine whether the conclusions drawn by the “biologists” are valid. This is poor science. In addition, it appears that the proposed rule may be overstating the effects of PWCs and other vessels on the spawning habitats of the razorback sucker, given that the fish spawn between January and April, when few people visit Lake Mead NRA.
32. One commenter noted the proposed rule claims that use of motorized vessels, including PWCs “likely” disturbs bonytail chubs attempting to spawn in Lake Mead NRA. Again, no technical studies have been conducted to support these hypotheses.
While it is true that no technical studies have been conducted to study the impacts of recreational use on the bonytail chub, as stated in the draft and final EIS, scientists who have studied native fish in the recreation area in the past 10 years have observed that motorized use around spawning areas of razorback suckers can temporarily disrupt spawning activities, and the same is likely true for bonytail chub (Marsh 2001). Since bonytail chub are known to spawn in April and May, it can be hypothesized that some disturbance impacts from recreational use could temporarily affect the bonytail chub spawning activities. In addition, bony tail chub are known to spawn in the southern portion of Lake Mohave, just north of Katherine Landing. This area receives increased use starting in May, when spawning activities are known to occur.
Fish species have also been shown to be negatively affected by motorized watercraft emissions (Oris,
The National Park Service is required by law and policy to survey for, protect, and strive to recover all species native to the national park system units that are listed under the Endangered Species Act (Management Polices 2001). The policy further states that the National Park Service will undertake active management programs to inventory, monitor, restore, and maintain listed species' habitats, including controlling detrimental visitor access, and enhancing critical habitat. The National Park Service and the U.S. Fish and Wildlife Service have determined that the temporal zoning which could be imposed around spawning habitat would protect these species, and could enhance critical habitat. As stated in the Biological Opinion, the use of temporal zoning will not be imposed until recommended by Federal biologists working in consultation with the Native Fish Workgroup.
33. One commenter suggested the National Park Service should insist that all watercraft have the quieter four-stroke engines.
34. We received a number of comments citing a variety of concerns over the noise associated with PWC use. In almost all cases this noise was characterized as “annoying”. Specific concerns included the constant and repeated fluctuation in engine tone and pitch as PWCs enter and exit the water while jumping wakes, changing speed and performing other quick maneuvers along with the persistent noise associated with remaining in one general location rather than traveling from point-to-point.
As written in the enabling legislation, the management purpose of Lake Mead is to provide public recreation, benefit, and use in a manner that will preserve, develop, and enhance, so far as practicable, the recreation potential and preserve the scenic, historic, scientific, and important features of the area. Recreational uses specifically listed in the act include bathing, boating, camping, and picnicking. Various levels of sound are associated with some of those uses, such as boating and PWC, and are consistent with the park's purpose as defined by the legislation.
To provide a “peaceful and tranquil” experience in some locations, PWC use would be prohibited within the primitive and semiprimitive recreational opportunity zones. These zones also place restrictions on wake speed and identify acceptable motor types, such as electric trolling motors in primitive zones. These prohibitions or restrictions in alternatives B and C (the preferred alternative) of the draft and final EIS and the modified preferred alternative of the final EIS would provide for a peaceful and tranquil visitor experience. In areas such as Black Canyon, where a diverse range of visitors use a variety of nonmotorized and motorized watercraft, the National Park Service would temporally zone this unique area to accommodate all users and provide experiences that range from tranquil to more rural and mechanized. All alternatives include plans and policies for enforcement of noise regulations. These elements of the Environmental Impact Statement are consistent with NPS Management Policies.
35. One commenter stated, testing at the Glen Canyon National Recreation Area indicate that the maximum noise levels for PWC are lower than the maximum noise levels for other motorized vessels.
36. One commenter stated, since 1998, PWC engine sound levels have been reduced by up to 70%.
37. The commenter notes opponents of PWC have claimed that the vessels emit noises as high as 102 decibels, without specifying distances or the method of sound measurement. These unsubstantiated claims are refuted by the National Park Service's recent testing at Glen Canyon, and cannot be reproduced under accepted sound measurement standards.
38. One commenter stated, “The National Marine Manufacturers Association has published a Model Noise Act for use by state legislatures or other agencies with jurisdiction over the manufacture and operation of watercraft. The Model Noise Act promotes regulation or legislation that would prohibit the operation of watercraft in a manner to exceed 75 dBA at the shoreline. The model noise act would also promote regulation or legislation that would prohibit the manufacture of watercraft that could not operate in compliance with the 75 dBA standard.”
The principal authors of this final rule are: Jim Holland, Management Assistant, Lake Mead NRA; Kevin Hendricks, Assistant Chief Ranger, Lake Mead NRA; Nancy Hendricks, Resource Management Specialist, Lake Mead NRA; Kym Hall, Regulations Program Manager, National Park Service; and Michael Tiernan, Office of the Solicitor, Department of the Interior.
This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This determination is based upon the findings in a report prepared by the National Park Service entitled
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies, or controls. This is an agency specific rule.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.
(4) This rule raises novel legal or policy issues. This rule is among the first of its kind for managing PWC use in National Park Units and the first for managing use in a National Recreation Area. The National Park Service published general regulations (36 CFR 3.24) in March 2000, requiring individual park areas to adopt special regulations to authorize PWC use. The implementation of the requirements of the general regulation continues to generate interest and discussion from the public concerning the overall effect of authorizing PWC use and National Park Service policy and park management.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The National Park Service has completed an economic analysis to make this determination. This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and imposes no other requirements on other agencies, governments, or the private sector.
In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas by allowing PWC use in specific areas of the park.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required.
The National Park Service has analyzed this rule in accordance with the criteria of the National Environmental Policy Act and has prepared a draft Environmental Impact Statement (EIS). The draft EIS was made available for public review and comment on April 24, 2002, and the final EIS was made available for public review on January 10, 2003. A copy of the LMP/FinalEIS is available on the Lake Mead NRA Web page (
In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2: We have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.
This final rule will be effective upon publication in the
As discussed in the preamble of this rule, the final rule is a part 7 special regulation for Lake Mead National Recreation Area that relieves the restrictions imposed by the general regulation, 36 CFR 3.24. The general regulation, 36 CFR 3.24, prohibits the use of personal watercraft in units of the national park system unless an individual park area has designated the use of personal watercraft by adopting a part 7 special regulation. The proposed rule was published in the
The Attorney General's Manual on the Administrative Procedures Act, explained that the “reason for this exception would appear to be that the persons affected by such rules are benefited by them and therefore need no time to conform their conduct so as to avoid the legal consequences of violation. The fact that an interested person may object to such issuance, amendment, or repeal of a rule does not change the character of the rule as being one “granting or recognizing exemption or relieving restriction”, thereby exempting it from the thirty-day requirement.” This rule is within the scope of the exception as described by the Attorney General's Manual and the 30-day waiting period should be waived.
In accordance with the Administrative Procedures Act, this rule is also excepted from the 30-day waiting period by 5 U.S.C. 553 (d)(3) and is effective upon publication in the
The rule has been developed in full compliance with section 553(b) and (c) rulemaking requirements. The proposed rule was published in the
“In determining whether to invoke the exception, the agency is ‘required to balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable time to prepare for the effective date of its ruling.’ ”
District of Columbia, National parks, Reporting and recordkeeping requirements.
16 U.S.C. 1, 3, 9a, 460(q), 462(k); sec. 7.96 also issued under DC Code 8-137(1981) and DC Code 40-721 (1981).
(g)
(i) In the designated Primitive area known as the Gypsum Beds, which is described as Arizona T31N; R20W Portions of sections 2, 3, 10 and 11; and
(ii) In the designated Primitive area known as the Virgin River, which is described as Nevada T36N; R68E Portions of Sections 25, 26, 34, 35, 36; and
(iii) In the designated Primitive/Semiprimitive area in Black Canyon, from the Willow Beach Harbor to Hoover Dam, prohibited from the first Tuesday following Labor Day weekend through Friday of Memorial Day weekend; and prohibited only on Sundays and Mondays from the Sunday of Memorial Day weekend through the Monday of Labor Day weekend, which is described as Nevada T22S; R65E Portions of Sections 32; T23S; R65E Portions of Sections 5, 8, 17, 20, 21, 28, 29, 34; T23
(iv) In the designated Semiprimitive area known as the Muddy River Confluence with Lake Mead (Overton Wildlife Management Area), which is described as Nevada T16S; R68E Portions of Sections 28, 29, 32, 33 and 34 and T17; R68E; and
(v) In the designated Semiprimitive area known as Grand Wash Bay, which is described as Arizona T33N; R16W Portions of Sections 16, 17, 21, 22, 27, 28, 29, 33 and 34, and T32
(vi) In the designated Semiprimitive area known as Bonelli Bay, which is described as Arizona T31N; R20W Portions of Sections 4, 5, 7, 8, 9, 16, 17, 18, 19, 20, 21, 29 and 30.
(2) A person may not operate a personal watercraft at a speed in excess
(3) After December 31, 2012, no one may operate a personal watercraft that does not meet the 2006 emission standards set by EPA for the manufacturing of two-stroke engines. A person operating a personal watercraft that meets the EPA 2006 emission standards through the use of direct-injection two-stroke or four-stroke engines, or the equivalent thereof, is not subject to this prohibition and will be allowed to operate as described in this section.
(4) The Superintendent may limit, restrict, or terminate access to the areas designated for PWC use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives.
Environmental Protection Agency (EPA).
Final rule; technical correction.
EPA issued a final rule in the
This document is effective on February 19, 2003.
Adam Heyward, Antimicrobials Division, (7510C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-6422; e-mail address: heyward.adam@epa.gov.
The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket ID number.
An exemption from the requirement of a tolerance for decanoic acid was added to 40 CFR part 180 in the
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical correction final without prior proposal and opportunity for comment, because EPA is merely correcting the section number that was inadvertently assigned to the Decanoic acid tolerance exemption. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
This final rule implements a technical correction to the CFR, and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical correction is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled
Since the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute (see Unit III.), this action is not subject to provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule will not have substantial direct effects on the States or on one or more Indian tribes, on the relationship between the national government and the States or one or more Indian tribes, or on the distribution of power and responsibilities among the various levels of government or between the Federal government and Indian tribes. As such, this action does not have any “federalism implications” as described in Executive Order 13132, entitled
Since this final rule is not a “significant regulatory action” as defined by Executive Order 12866, it does not require OMB review or any Agency action under Executive Order 13045, entitled
This action does not involve any technical standards that require the Agency's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
This action will not result in environmental justice related issues and does not, therefore, require special consideration under Executive Order 12898, entitled
In issuing this final rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and record keeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
Environmental Protection Agency (EPA)
Immediate final rule.
The State of Oklahoma has applied for Final authorization of the changes to its Hazardous Waste Program under the Resource Conservation and Recovery Act (RCRA). The EPA has determined that these revisions satisfy all requirements needed to qualify for Final authorization, and is authorizing the State's changes through this immediate final action. The EPA is publishing this rule to authorize the revisions without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we get adverse comments which oppose this authorization during the comment period, the decision to authorize the Oklahoma Department of Environmental Quality's (ODEQ) revisions to their hazardous waste program will take effect. If adverse comments are received, we will publish a document in the
This immediate final rule is effective on June 9, 2003, unless EPA receives adverse written comments by May 9, 2003. Should EPA receive such comments, it will publish a timely document either: Withdrawing the immediate final publication or affirming the publication and responding to comments.
Written comments, referring to Docket Number OK-01-03, should be sent to Alima Patterson Region 6 Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. Copies of Oklahoma program revision application and the materials which EPA used in evaluating the revisions are available for inspection and copying from 8:30 a.m. to 4 p.m. Monday through Friday at the following address: Oklahoma Department of Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma 73101-1677, (405) 702-7180 and EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-6444.
Alima Patterson (214) 665-8533.
States that receive final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal Hazardous Waste Program. As the Federal program changes, States must
The effect of this decision is that a facility in Oklahoma subject to RCRA will have to comply with the authorized State Requirements (Cluster X listed in this document) instead of the equivalent federal requirements in order to comply with RCRA. Oklahoma has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: (1) Do inspections, and require monitoring, tests, analyses or reports, (2) enforce RCRA requirements and suspend or revoke permits. This action does not impose additional requirements on the regulated community because the regulations for which Oklahoma is being authorized by today's action are already effective, and are not changed by today's action.
Oklahoma initially received Final Authorization on January 10, 1985, (49 FR 50362-50363) published December 27, 1984 to implement its base hazardous waste management program. We authorized the following revisions: Oklahoma received authorization for revisions to its program with publication dates: April 17, 1990 (55 FR 14280-14282), effective June 18, 1990; September 26, 1990 (55 FR 39274) effective November 27, 1990; April 2, 1991 (56 FR 13411-13413) effective June 3, 1991; September 20, 1991 (56 FR 47675-47677) effective November 19, 1991; September 29, 1993 (58 FR 50854-50856) effective November 29, 1993; October 12, 1993 (52679-52682) effective December 13, 1993; October 7, 1994 (59 FR 51116-51122) effective December 21, 1994; January 11, 1995 (60 FR 2699-2702) effective April 27, 1995; October 9, 1996 (61 FR 52884-52886) effective December 23, 1996; Technical Correction March 14, 1997 (12100-12101) effective March 14, 1997; September 22, 1998 (63 FR 50528-50531) effective November 23, 1998; March 29, 2000 (65 FR 16528-16532) effective May 30, 2000; May 10, 2000 (65 FR 29981-29985) effective June 9, 2000; and January 2, 2001 (66 FR 28-33) effective March 5, 2001. The authorized Oklahoma RCRA program was incorporated by reference into the CFR published on December 9, 1998 (67800-67834) effective February 8, 1999 and August 26, 1999 (46567-46571) effective October 25, 1999. On October 15, 2001, Oklahoma submitted a final complete program revision application, seeking authorization of its program revision in accordance with 40 CFR 271.21.
Oklahoma statutes provide authority for a single State agency, the Oklahoma Department of Environmental Quality (ODEQ), to administer the provisions of the State Hazardous Waste Management Program. These statutes are the Oklahoma Department of Environmental Quality Act, 27 O.S. Supplement (Supp.) 2000 §§ 1-1-101
The Oklahoma Board adopted RCRA Cluster X rules on February 23, 2001, as permanent rules. These permanent rules became effective on June 11, 2001, to implement the State hazardous waste program, which are codified in OAC 252:205
The ODEQ remains the official agency of the State of Oklahoma, as designated by 27A O.S. Supp. 2000 Section 2-7-105(13) to cooperate with Federal agencies for purposes of hazardous waste regulation. The OHWMA delegates authority to the ODEQ to administer the State hazardous waste program, including the statutory and regulatory provisions necessary to administer the RCRA Cluster X provisions. The DEQ is the sole State agency responsible for administering the provisions of the OHWMA.
At the present, the Oklahoma Corporation Commission (OCC) regulates certain aspects of the oil and gas production and transportation industry in Oklahoma, including certain waste generated by pipelines, bulk fuel sales terminals and certain tank farms. The ODEQ and the OCC have in place a ODEQ/OCC Jurisdictional Guidance Document that reflects the current state of affairs between the two agencies. The current ODEQ/OCC jurisdictional Guidance Document was amended and signed on January 27, 1999.
The revisions of the State program to include administration of the provisions of portions of RCRA Cluster X will not require a change in responsibility for administration of the State hazardous waste program.
On October 15, 2001 the State of Oklahoma submitted a final complete program application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate Final decision, subject to receipt of written comments that oppose this action, that the State of Oklahoma's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. The State of Oklahoma revisions consist of regulations which specifically govern Federal Hazardous Waste promulgated from July 1, 1999 to June 30, 2000 (RCRA Cluster X) Oklahoma requirements are included in a chart with this document.
We conclude that Oklahoma's application for program revision meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Oklahoma final authorization to operate its hazardous waste program with the changes described in the authorization application. Oklahoma has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Oklahoma, including issuing permits, until the State is granted authorization to do so.
In this authorization of the State of Oklahoma's program revisions for RCRA Cluster X, there are no provisions that are more stringent or broader in scope. Broader in scope requirements are not part of the authorized program and EPA can not enforce them.
The State of Oklahoma will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. We will not issue any more permits or new portions of permits for the provision listed in that Table in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Oklahoma is not yet authorized.
The EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval because we believe this action is not controversial. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's
You should send written comments to Alima Patterson, Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8533. Please refer to Docket Number OK-01-03). We must receive your comments by May 9, 2003. You may not have an opportunity to comment again. If you want to comment on this action, you must do so at this time.
If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the
Unless EPA receives comments opposing this action, this final authorization approval will become effective without further notice on June 9, 2003.
You can review and copy the State of Oklahoma's application from 8:30 a.m. to 4 p.m. Monday through Friday at the following addresses: Oklahoma Department of Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma 73101-1677, (405) 702-7180 and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-6444. For further information contact Alima Patterson, Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8533.
Oklahoma is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect on Indian Country.
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the CFR. The EPA does this by referencing the authorized State rules in 40 CFR part 272. The EPA reserves the amendment of 40 CFR part 272, Subpart LL for this codification of Oklahoma's program changes until a later date.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore, this action is not subject to review by OMB. This rule incorporated by reference Oklahoma's authorized hazardous waste management regulations, and imposes no additional requirements beyond those imposed by State law. This final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This action 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 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).
This action also is not subject to Executive Order 13045 (62 FR 19885M April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Action Concerning Regulations That Significantly Affect Energy Supply Distribution or Use“ (66 FR 28344, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a State's application for incorporation by reference as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State incorporation by reference application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. The final rule does not include environment justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 3501
Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply.
This document is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Federal Communications Commission.
Correcting amendments.
This document makes a minor correction to part 76 of the Commission's rules pertaining to definition of markets which were published in the
Effective April 9, 2003.
Kenneth Lewis, Media Bureau (202) 418-2622.
The Order on Reconsideration and Second Report and Order, FCC 99-116, adopted May 21, 1999; released May 26, 1999, approved a final rule regarding the change of market definitions from Arbitron's areas of dominant influence to Nielsen Media Research's designated market areas for must-carry/retransmission elections. In this document we make a non-substantive change to update Nielsen Media Research's address in the publication of § 76.55(e)(2)(i) of the Commission's rules.
As published, the final regulations contain an old address for Nielsen Media Research.
Cable television.
47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
Surface Transportation Board, DOT.
Final rules and request for comments.
The Board amends its regulations to expedite the resolution of rail rate challenges considered under the stand-alone cost (SAC) methodology. The revisions institute a requirement for mandatory, non-binding post-complaint mediation between the shipper and railroad under Board auspices, and establish expedited processes, using Board staff, for resolving discovery and evidentiary disputes. The Board also requests comments on the following discovery-related issues: developing a list of standard information that should be routinely made available in discovery; limiting the number of discovery requests available to the parties; limiting the number of years of data for which discovery responses would be required, and establishing a cut-off date for updating discovery responses; and cost-sharing for production of discovery responses.
The final rules are effective on May 9, 2003; comments are due on June 9, 2003, with reply comments due on June 19, 2003.
Send comments (an original plus 10 copies) referring to Ex Parte No. 638 to: Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001.
Jamie P. Rennert (202) 565-1566. [Federal Information Relay Service (FIRS) (Hearing Impaired): (800) 877-8339.]
The Surface Transportation Board requests comments as follows:
We are asking each interested party to (1) submit lists of all of the information and documents that (a) it believes it should be entitled to obtain as a matter of course in discovery in a SAC case and (b) it would expect to produce to the other party as a matter of course in discovery in a SAC case, and then (2) comment on the lists submitted by other parties in this proceeding. After reviewing the parties' lists and comments, we will decide whether to issue a list of standard information and documents that the parties to a SAC case would be required to produce. We also seek comment on the practical aspects of this proposal, such as the appropriate timing for such initial disclosures. For example, would it be practical to require the complainant's initial disclosures to be made contemporaneously with the filing of the complaint, and to make the defendant's initial disclosures due at the same time as its answer to the complaint?
A suggestion was made to place a limit on the number of discovery requests that each party would be allowed to make, absent permission from the Board. This is the procedure that applies to complex commercial litigation conducted in the federal courts, in Rule 33(a) of the Federal Rules of Civil Procedure (which limits a party to 25 written interrogatories, including all discrete subparts, without leave of court). We seek comment on (1) the appropriate number of interrogatories and document requests that could be made without our leave, and why, and (2) whether such a limitation is a necessary and appropriate measure to prevent parties from requesting data in multiple formats or versions. Commenters should address this proposal both as if it were to be adopted alone and as if it were to be adopted in conjunction with a list of standard information and documents that the parties to a SAC case would be required to produce as initial disclosures.
Suggestions were also made to limit the number of years for which data would need to be produced for a SAC case, absent permission from the Board, and to establish a cut-off date for discovery after which responses to discovery requests would not need to be updated. We seek comment on (1) the advantages and disadvantages of establishing such limits, (2) whether
Finally, a suggestion has been made that the parties share the costs of production of data in response to discovery requests, rather than the responding party alone shouldering what can be substantial costs. We seek comment on (1) our authority to require such cost-sharing, (2) the circumstances, if any, under which parties should be required to share those costs, (3) how the costs of production would be quantified, and (4) how, if at all, the costs should be divided between the parties.
Additional information is contained in the Board's decision. To obtain a copy of the full decision, visit the Board's Web site at
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
We conclude that our action will not have a significant effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act because small entities are not litigants in the rail rate cases that are the subject of this proceeding.
Practice and procedure, Railroads.
5 U.S.C. 559; 49 U.S.C. 721, 10704, and 11701.
(a) A shipper seeking rate relief from a railroad or railroads in a case involving the stand-alone cost methodology must engage in non-binding mediation of its dispute with the railroad upon filing a formal complaint under 49 CFR Part 1111.
(b) Within 10 business days after the shipper files its formal complaint, the Board will assign a mediator to the case. Within 5 business days of the assignment to mediate, the mediator shall contact the parties to discuss ground rules and the time and location of any meeting. At least one principal of each party, who has the authority to bind that party, shall participate in the mediation and be present at any session at which the mediator requests that the principal be present.
(c) The mediator will work with the parties to try to reach a settlement of all or some of their dispute or to narrow the issues in dispute, and reach stipulations that may be incorporated into any adjudication before the Board if mediation does not fully resolve the dispute. If the parties reach a settlement, the mediator may assist in preparing a settlement agreement.
(d) The entire mediation process shall be private and confidential. No party may use any concessions made or information disclosed to either the mediator or the opposing party before the Board or in any other forum without the consent of the other party.
(e) The mediation shall be completed within 60 days of the appointment of the mediator. The mediation may be terminated prior to the end of the 60-day period only with the certification of the mediator to the Board. Requests to extend mediation, or to re-engage it later, will be entertained on a case-by-case basis, but only if filed by all interested parties.
(f) Absent a specific order from the Board, the onset of mediation will not affect the procedural schedule in stand-alone cost rate cases, set forth at 49 CFR 1111.8(a).
5 U.S.C. 559; 49 U.S.C. 721, 10704, and 11701.
(a)
(b)
(2) In addition, the Board may convene a conference of the parties with Board staff, after discovery requests are served but before any motions to compel may be filed, to discuss discovery matters in stand-alone cost rate cases. The parties should jointly propose a schedule for this discovery conference.
5 U.S.C. 559; 49 U.S.C. 721, 10704, and 11701.
(a)(1)
(2)
(3)
(4)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; Technical amendment.
This document corrects a cross reference in the regulatory text of 50 CFR part 679. The action is necessary to correct an error in a cross reference at § 679.20(a)(5)(iii)(B).
Effective April 8, 2003.
Patsy A. Bearden, NMFS, 907-586-7228 or e-mail at
A final rule, which published December 30, 2002 (67 FR 79692), redesignated § 679.20(a)(5)(ii) as § 679.20(a)(5)(iii). This paragraph redesignation affected a cross reference in existing § 679.20(a)(5)(iii)(B) but the change was not made. This error is corrected by this action.
This rule corrects a cross reference in § 679.20(a)(5)(iii)(B) by removing the reference to “(a)(5)(ii)(A)” and adding in its place “(a)(5)(iii)(A).”
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator of Fisheries (AA), NOAA, finds good cause to waive prior notice and an opportunity for public comment. NOAA finds that prior notice and comment are unnecessary as this rule makes a minor, non-substantive change to correct a mis-citation to another section of the regulation. Because this action is not substantive, 5 U.S.C. 553(d) does not apply. Therefore, this final rule is not subject to a 30-day delay in effectiveness.
Alaska, Fisheries, Recordkeeping and reporting requirements.
16 U.S.C. 773
In § 679.20(a)(5)(iii)(B), the cross-reference “(a)(5)(ii)(A)” is corrected to read “(a)(5)(iii)(A)”.
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management (OPM) is issuing proposed regulations to remove the premium rates and age bands under the Federal Employees' Group Life Insurance (FEGLI) Program from regulation. The information will be maintained on the FEGLI Web site at
Submit comments on or before June 9, 2003.
Send written comments to Abby L. Block, Special Advisor for Employee and Family Support, Strategic Human Resources Policy Division, Office of Personnel Management, Washington, DC 20415-3666; or deliver to OPM, Room 3425, 1900 E Street NW., Washington, DC; or FAX to (202) 606-0633.
Karen Leibach, (202) 606-0004.
OPM is removing the premiums and age bands from the regulations to streamline the process used by OPM to adjust premium rates based on mortality and claims experiences, and actuarial determinations. The premiums in the FEGLI Program represent actuarial estimates of premium income necessary to pay future expected benefits costs. The rates for all coverage categories are specific to the experience of the FEGLI group and are not based on mortality rates within the general population. Actuarial analysis of changing mortality rates and Program changes, if any, make periodic premium adjustments necessary. OPM needs a simplified process to ensure that premium income can pay the future expected benefit costs in the FEGLI Program.
When OPM determines rate changes are needed, we will announce them in a public notice in the
Although members of the public will no longer have the opportunity to comment on changes through the formal regulatory process, they can continue as always to comment through emails and letters to OPM. Almost all the comments we receive regarding premium and age band changes are in response to these types of notification, rather than formal responses to regulations. We will accept and reply to comments from members of the public as always. Publishing these changes in the
I certify that this regulation will not have a significant economic impact on a substantial number of small entities, because the regulation only affects life insurance benefits of Federal employees and retirees.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Administrative practice and procedure, Government employees, Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.
Accordingly, OPM is proposing to amend 5 CFR part 870 as follows:
1. The authority citation for part 870 is revised to read as follows:
5 U.S.C. 8716; subpart J also issued under sec. 599C, Pub. L. 101-513, 104 Stat. 2064, as amended; § 870.302(a)(3)(ii) also issued under sec. 153, Pub. L. 104-134, 110 Stat. 1321; § 870.302(a)(3) also issued under sections 11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251 and section 7(e), Pub. L. 105-274, 112 Stat. 2419.
2. In § 870.401, paragraphs (a), (b)(1), and (d) are revised to read as follows:
(a)(1) The cost of Basic insurance is shared between the insured individual and the Government. The employee pays two thirds of the cost, and the Government pays one-third.
(2) When OPM makes any adjustment to the Basic life insurance premium, we will issue a public notice in the
(b)(1) During each pay period in which an insured employee is in pay status for any part of the period, the employee's share of the premium must be withheld from the employee's biweekly pay. The amount withheld from the pay of an employee who is paid on other than a biweekly basis must be prorated and adjusted to the nearest one-tenth of one cent.
(d)(1) For an annuitant or compensationer who elects to continue Basic insurance and chooses the maximum reduction of 75 percent after age 65, under § 870.702(a)(2), the annuitant's share of the premium is withheld monthly and the compensationer's share is withheld every four weeks. These withholdings stop the month after the month in which the annuitant or compensationer reaches age 65. There are no withholdings from individuals who retired or began receiving compensation before January 1, 1990, and who elected the 75 percent reduction. For the purpose of this paragraph, an individual who separates from service after meeting the requirements for an immediate annuity under 5 U.S.C. 8412 (g) is considered to retire on the day before the annuity begins.
(2) An annuitant or compensationer who elects to continue Basic insurance and chooses either the reduction election of 50 percent or the no reduction after age 65, under § 870.702(a)(3) or § 870.702(a)(4), pays an additional premium for the 50 percent or no reduction election. This additional premium is withheld for each $1,000 of the BIA. At age 65, the Basic premium will stop, but the annuitant or compensationer must continue to pay the additional premium for either the 50 percent or the no reduction election.
3. Revise § 870.402 to read as follows:
(a)(1) The insured individual pays the full cost of all Optional insurance. There is no Government contribution toward the cost of any Optional insurance.
(2) Optional insurance premiums are based on 5-year age bands beginning at age 35. The last age band for Option A is age 60+. The last age band for Options B and C is 80+. For the purpose of this subpart, effective April 24, 1999, an individual is considered to reach the next age band the 1st day of the pay period following the pay period in which his/her birthday occurs.
(3) When OPM makes any adjustment to the Optional life insurance premiums, we will issue a public notice in the
(b) During each pay period in any part of which an insured employee is in pay status, the employing agency must withhold the full cost of Optional insurance from his/her pay.
(c)(1) Subject to the provisions for reemployed annuitants in § 870.707, the full cost of Optional insurance must be withheld from the annuity of an annuitant and the compensation of a compensationer.
(2) The withholdings for Option A stop the month after the month in which an annuitant or compensationer reaches age 65.
(3) For an annuitant or compensationer who elects Full Reduction for any Option B or Option C multiples, the withholdings for those multiples stop the month after the month in which he/she reaches age 65.
(4) For an annuitant or compensationer who elects No Reduction for any Option B or Option C multiples, the withholdings for those multiples continue, as long as he/she remains insured.
(d)(1) For Option A and Option C, the amount withheld from pay, annuity, or compensation paid on other than a biweekly basis must be prorated and adjusted to the nearest cent.
(2) For Option B, the amount withheld from pay, annuity, or compensation paid on other than a biweekly basis must be prorated and adjusted to the nearest one-tenth of 1 cent.
(e) If an employee's annual pay is paid during a period shorter than 52 work weeks, the employing office must determine the amount to withhold. To do this, it converts the biweekly cost to an annual cost and prorates it over the number of installments of pay regularly paid during the year.
(f) When an agency withholds less than or none of the proper amount of Optional life insurance deductions from an individual's pay, annuity or compensation, the agency must submit an amount equal to the uncollected deductions required under 5 U.S.C. 8714a, 8714b, 8714c to OPM for deposit in the Employees' Life Insurance Fund.
4. In § 870.404, paragraph (d) is revised to read as follows:
(d) The deposit described in §§ 870.401(f) and 870.402(f) must be made no later than 60 calendar days after the date the employing office determines the amount of the underdeduction that has occurred, regardless of whether or when the underdeduction is recovered by the agency. The agency must determine whether to waive collection of the overpayment of pay, in accordance with 5 U.S.C. 5584, as implemented by 4 CFR chapter I, subchapter G. However, if the agency involved is excluded from the provisions of 5 U.S.C. 5584, it may use any applicable authority to waive the collection.
5. In § 870.801, paragraph (e) is revised to read as follows:
(e) Upon the death of an insured family member, Option C benefits are paid to the employee, annuitant or compensationer responsible for withholdings under § 870.402(a), except as provided in paragraph (f) of this section.
Farm Service Agency, USDA.
Proposed rule.
The Farm Service Agency (FSA) proposes to amend the regulations for direct and guaranteed farm operating loans (OL) to implement the provision of the Farm Security and Rural Investment Act of 2002 (2002 Act) relating to loan eligibility for applicants with prior debt forgiveness resulting from a disaster or emergency designated by the President. FSA is proposing that borrowers who are current on an FSA loan at the onset of a Presidentially-declared disaster or emergency, but who receive debt forgiveness on that loan following the disaster, would be eligible for OL loan assistance if all other regulatory requirements were met. FSA is also proposing to amend the regulations for direct farm ownership (FO) loans to comply with the 2002 Act. FSA is proposing that applicants may qualify for a loan if they participated in the business operations of a farm or ranch for at least three of the past five years, rather than having operated a farm or ranch for that length of time. This portion of the rule is intended to make more borrowers eligible for FSA farm loan assistance. Finally, FSA is proposing to amend regulations concerning reamortization of amortized Shared Appreciation Agreement (SAA) recapture debt.
Comments on the rule must be received on or before June 9, 2003, to be assured of consideration.
Submit written comments to the Director, Loan Making Division, Farm Loan Programs, Farm Service Agency, United States Department of Agriculture, STOP 0522, 1400 Independence Avenue, SW., Washington, DC 20250-0522.
Kathy Zeidler, Senior Loan Officer, USDA, FSA, Farm Loan Programs, Loan Making Division, STOP 0522, 1400 Independence Avenue, SW., Washington, DC 20250-0522; telephone
This rule is issued as a proposed rule. Upon completion of the public comment period and consideration of the comments received, FSA will issue a final rule addressing the comments, announcing the final determination, and making the provisions effective.
This rule has been determined to be not significant under Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
The title and number of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which the rule applies are:
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-602), the undersigned has determined and certified by signature of this document that this rule will not have a significant economic impact on a substantial number of small entities. New provisions included in this rule will not impact a substantial number of small entities to a greater extent than large entities. Therefore, a regulatory flexibility analysis was not performed.
This rule contains no Federal mandates under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
This rule has been reviewed in accordance with Executive Order 12988. This rule preempts State laws that are inconsistent with it. This rule is not retroactive. Before judicial action may be brought concerning this rule, administrative remedies must be exhausted.
The environmental impacts of this rule have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This rule is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
The Agency's information collection requirements, currently approved under OMB control numbers 0560-0155, 0560-0157, and 0560-0167 are not affected by the proposed rule.
FSA is committed to compliance with the Government Paperwork Elimination Act and the Freedom to E-File Act, which require Government agencies in general and FSA in particular to provide the option of submitting information or transacting business electronically to the maximum extent possible. The forms and other information collection activities required for participation in the program are not yet fully implemented for the public to conduct business with FSA electronically. However, loan application forms are available electronically for downloading through the USDA eForms Web site at
Section 5319 of the 2002 Act provides another exception to the general rule prohibiting farm loans to borrowers who have received prior debt forgiveness. Under this provision, FSA farm loan borrowers who received debt forgiveness on not more than one occasion resulting directly and primarily from a major disaster or emergency designated by the President on or after April 4, 1996, under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
Section 5001 of the 2002 Act revised an eligibility requirement for FSA's direct FO loan program. Applicants may now be eligible for this program if they participated in the business operations of a farm or ranch for at least three years, rather than having operated a farm or ranch for that length of time. FSA has in place a policy in its direct OL program defining farm participation with regard to acceptable farm experience and on-the-job training. Because this policy was already in effect, it was expanded to cover the new participation requirement for direct FO loans through administrative notice. The policy notice issued to field offices clarified the participation requirement by stating that applicants who: (1) Owned, managed, or operated a farm or ranch business for at least three years worth of complete production and
Section 5314 of the 2002 Act authorizes FSA to consider reamortization of amortized SAA recapture debt for up to 25 years from the date of the original amortization agreement when the borrower becomes delinquent on this non-program debt. To be eligible for this reamortization, the default must be due to circumstances beyond the borrower's control, and the borrower must have acted in good faith in attempting to repay the recapture amount. As this reamortization can be considered even when a borrower has no outstanding FLP loans, or when the SAA was triggered by all FSA loans being paid in full, FSA is proposing to amend 7 CFR 1951.901, 1951.907, 1951.909, and 1951.914 to comply with this requirement.
General—Agriculture, Loan programs—Agriculture.
Crops, Livestock, Loan programs—Agriculture, Rural areas, Youth.
Crops, Loan programs—Agriculture, Recreation, Water resources.
Account servicing, Credit, Debt restructuring, Loan programs—Agriculture, Loan Programs—Housing and community development.
Accordingly, 7 CFR is revised as follows:
1. The authority citation for part 762 continues to read as follows:
5 U.S.C. 301, 7 U.S.C. 1989.
2. Amend § 762.102(b) by adding a definition of “Presidentially-designated emergency” to read as follows:
(b)
3. Amend § 762.120 by revising paragraph (a) to read as follows:
(a)
(i) More than three occasions on or prior to April 4, 1996; or
(ii) Any occasion after April 4, 1996.
(2) The applicant may receive a guaranteed OL to pay annual farm and ranch operating and family living expenses, provided the applicant meets all other requirements for the loan, if the applicant and anyone who will execute the promissory note:
(i) Received a write-down under section 353 of the CONACT;
(ii) Is current on payments under a confirmed bankruptcy plan; or
(iii) Received debt forgiveness on not more than one occasion after April 4, 1996, resulting directly and primarily from a Presidentially-designated emergency for the county in which the applicant operates. Only applicants who were current on all existing direct and guaranteed FSA loans prior to the onset of a Presidentially-designated emergency and received debt forgiveness on that debt within three years after the onset of such emergency meet this exception.
4. The authority citation for part 1941 continues to read as follows:
5 U.S.C. 301; 7 U.S.C. 1989.
5. Amend § 1941.4 by adding a definition of “Presidentially-designated emergency” to read as follows:
6. Amend § 1941.12 by revising paragraphs (a)(8) and (b)(11) to read as follows:
(a) * * *
(8)
(ii) The applicant may receive a direct OL loan to pay annual farm and ranch operating and family living expenses, provided the applicant meets all other requirements for the loan, if the applicant and anyone who will execute the promissory note:
(A) Received a write-down under section 353 of the CONACT;
(B) Is current on payments under a confirmed bankruptcy plan; or
(C) Received debt forgiveness on not more than one occasion after April 4, 1996, resulting directly and primarily from a Presidentially-designated emergency for the county in which the applicant operates. Only applicants who were current on all existing direct and guaranteed FSA loans prior to the onset of a Presidentially-designated emergency and received debt forgiveness on that debt within three
(b) * * *
(11)
(ii) The applicant may receive a direct guaranteed OL loan to pay annual farm and ranch and operating and family living expenses, provided the applicant meets all other requirements for the loan, if the applicant and anyone who will execute the promissory note,
(A) Received a write-down under section 353 of the CONACT;
(B) Is current on payments under a confirmed bankruptcy plan; or
(C) Received debt forgiveness on not more than one occasion after April 4, 1996, resulting directly and primarily from a Presidentially-designated emergency for the county in which the applicant operates. Only applicants who were current on all existing direct and guaranteed FSA loans prior to the onset of a Presidentially-designated emergency and received debt forgiveness on that debt within three years after the onset of such emergency meet this exception.
7. The authority citation for part 1943 continues to read as follows:
5 U.S.C. 301, 7 U.S.C. 1989.
8. Amend § 1943.4 by adding a definition of “participated in the business operations of a farm or ranch” to read as follows:
(1) Been the owner, manager or operator of a farm business for the year's complete production and marketing cycle as evidenced by tax returns, FSA farm records or similar documentation;
(2) Been employed as a farm manager or farm management consultant for the year's complete production and marketing cycle; or
(3) Participated in the operation of a farm by virtue of being raised on a farm or worked on farm with significant responsibility for the day-to-day decisions for the year's complete production and marketing cycle.
9. Amend § 1943.12 by revising the introductory text in paragraphs (a)(6) and (b)(8) to read as follows:
(a) * * *
(6) Have participated in the business operations of a farm or ranch for at least 3 years out of the 5 years prior to the date the application is submitted and satisfy at least one of the following conditions:
(b) * * *
(8) Have one or more members, constituting a majority interest in the business entity, who have participated in the business operations of a farm or ranch for at least 3 years out of the 5 years prior to the date the application is submitted and satisfy at least one of the following conditions:
10. The authority citation for part 1951 is revised to read as follows:
5 U.S.C. 301; 7 U.S.C. 1932 Note; 7 U.S.C. 1989; 31 U.S.C. 3716; 42 U.S.C. 1480.
11. Amend § 1951.901 by revising the third sentence to read as follows:
* * * Shared Appreciation amortized payments (SA) may be reamortized in accordance with §§ 1951.907(e), 1951.909(c)(6) and 1951.909(e)(2).
12. In § 1951.907, revise the second and third sentences of paragraph (c), introductory text, redesignate paragraph (e) as (f) and add a new paragraph (e) to read as follows:
(c) * * * If the borrower submits an incomplete application, see paragraph (f) of this section for procedures on requesting additional information. Delinquent borrowers who have also violated their loan agreements with the agency will be handled in accordance with paragraph (f) of this section. * * *
(e) The Agency will notify delinquent NP borrowers who have only SA amortization agreements that all items in paragraph (f)(5) of this section, with the exception of Attachment 2 or 4 of exhibit A and information for conservation contracts or debt settlement, must be submitted within 60 days or the account will be accelerated. If a complete application has not been submitted within 30 days, one additional notice will be sent to the NP borrower indicating the remaining information needed and the last day which it can be submitted.
13. Amend § 1951.909 by adding a new paragraph (c)(6) to read as follows:
(c) * * *
(6) Non-Program borrowers who have only SA amortization agreements must meet the eligibility requirement in paragraph (c)(1) of this section, have acted in good faith in attempting to repay the recapture amount, and develop a feasible plan. Borrowers who do not meet the eligibility or feasibility requirements of this section will be notified of the adverse decision, and the account will be liquidated according to subpart J of this part.
14. Amend § 1951.914 by revising paragraphs (e), introductory text, and (e)(11) to read as follows:
(e)
(11) If a borrower with an SA amortized payment also has outstanding Farm Loan Program loan(s) and becomes delinquent or financially distressed in accordance with § 1951.906 or if a borrower with an SA amortized
Farm Service Agency, USDA.
Proposed rule.
This rule proposes to consolidate, clarify and revise the servicing regulations for the Minor Programs currently administered by the Farm Service Agency, Farm Loan Programs (FSA). Minor Program loans involve existing loans only since there is no longer funding for new loans in these programs. FSA Minor Programs consist of the following loan types: Grazing Association loans and Irrigation and Drainage Association loans previously administered by the U.S. Department of Agriculture's Rural Development (RD) mission area, and Non-Farm enterprise and Recreation Loans made to individuals which have previously been administered by FSA. Recreation loans to associations will continue to be serviced by RD.
Comments on the proposed rule must be received on or before June 9, 2003 to be assured of consideration.
Mail comments on the proposed rule to: Veldon Hall, Director, Farm Loan Programs, Loan Servicing and Property Management Division, Farm Service Agency, USDA, 1400 Independence Avenue, SW. Stop 0523, Washington, DC 20250-0523, or hand deliver to Suite 500, 1250 Maryland Avenue, SW., Washington, DC 20024 during normal business hours. Comments and supporting documents may be viewed by contacting the information contact listed below. All comments, including names and addresses, will become part if the public record. Comments on the paperwork burden of this proposed rule must be sent to the addresses listed in the Paperwork Reduction Act section of this Rule.
Mel Thompson, Senior Loan Officer, Farm Service Agency; telephone: 202-720-7862; Facsimile: 202-690-1196; e-mail:
This rule was determined to be not significant under Executive Order 12866 and was not reviewed by the Office of Management and Budget.
The Agency certifies that this rule will not have a significant economic effect on a substantial number of small entities, because it does not require any action by the borrower who may be a small entity. The Agency, therefore, is not required to perform a Regulatory Flexibility Analysis as required by the Regulatory Flexibility Act, Pub. L. 96-534, as amended (5 U.S.C. 601). This rule does not impact small entities to a greater extent than large entities.
The environmental impacts of this proposed rule have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with that Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR parts 11 and 780 must be exhausted before requesting judicial review.
As stated in the Notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983) the programs and activities within this rule do not require consultation with state and local officials under the scope of Executive Order 12372.
This rule contains no Federal mandates as defined in Title II of the Unfunded Mandates Reform Act of 1995 (UMRA). Thus, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose any new significant loan servicing criteria on state and local governments. The proposed rule revises the citation references and consolidates the servicing regulations to streamline loan servicing criteria applicable to Minor Programs. Therefore, consultation with the states is not required.
The amendments to 7 CFR parts 772, 1901, subpart E, and 1951, subparts E and F, contained in this rule only delete requirements and propose no new collections nor do they significantly affect the aggregate information collection burden of the Agencies. Certain forms and information collection are included and approved in the Information Collection Package for OMB control number 0560-0158 and are not impacted by this collection. Still, this rule transfers some of the information collections assigned OMB control numbers 0575-0118, 0575-0093, and 0575-0066, to the proposed part 772. This will result in certain burden that is currently assigned by OMB to the
These proposed changes affect no programs listed in the Catalog of Federal Domestic Assistance.
This proposed rule consolidates and clarifies the servicing policies of the Farm Service Agency's Minor Loan Programs. The Minor Programs were administered by the former Farmers Home Administration (FmHA). Under the discretionary authority of the Department of Agriculture Reorganization Act of 1994, Pub. L. 103-354, on October 20, 1994, the Individual-type loans (Non-Farm Enterprise and Recreation loans) were assigned to FSA. The Association-type loans (Grazing Associations and Irrigation and Drainage loans) were assigned to USDA's Rural Development mission area. Regulations for servicing the Association-type loans of these programs are currently found at 7 CFR part 1901, subpart E for Civil Rights Compliance; 7 CFR part 1951, subpart E for servicing; 7 CFR part 1951, subpart F for graduation; 7 CFR part 1956, subpart C for debt settlement; and 7 CFR part 1962 subpart A for bankruptcy. Individual-type Minor Program loans are the Non-Farm enterprise loans which are a subgroup of FSA, Farm Operating and Farm Ownership loans defined in 7 CFR 1941.4 and 1943.4 and Recreation loans, which are defined as Farm Loan Program (FLP) loans under 7 CFR 1951.906. Although these loans are no longer made by FSA, both categories are serviced as FLP loans in accordance with 7 CFR part 1951, subpart S.
Because the current delegation of these similar loan programs between FSA and the agencies of the Rural Development mission area is inefficient, this rule proposes to remove parts of regulations that are currently shared by FSA and the agencies of the Rural Development mission area and publish a consolidated FSA regulation governing these programs. Consolidating these scattered regulations will result in more efficient and proper administration of the servicing requirements for the Minor Programs. Information not specific to the Minor Programs will be eliminated and language will be improved for readability. Only requirements specific to the Minor Programs will be included. The result will be better service to the borrowers with these types of loans, and, at the same time, ease the agency officials' burden in administering these programs. The regulations for servicing bankruptcy (7 CFR part 1962, subpart A) and debt settlement (7 CFR part 1956, subparts B and C) previously applied to all Minor Program loans and will continue to apply under this rule. This proposed rule contains no new requirements, nor does it eliminate any provision currently contained in existing regulations. The intended effect of this rule is to transfer and consolidate authorities contained within separate Federal regulations into one part.
Agriculture, Credit, Rural areas.
Civil rights, Compliance reviews, Minority groups.
Account servicing, Grant programs—housing and community development, Reporting requirements, Rural areas.
Accordingly, for the reasons stated in the preamble, 7 CFR part 772 is added and 7 CFR parts 1901 and 1951 are amended as follows:
1. Add part 772 to read as follows:
: 5 U.S.C. 301, 7 U.S.C. 1989, and 25 U.S.C. 490.
(a)
(b)
(a) Abbreviations.
(b)
(a)
(b)
(c)
(d)
Servicing activities such as transfers, assumptions, subordinations, sale or exchange of security property, and leasing of security will be reviewed for compliance with title 7, part 1940, subpart G of chapter XVIII of the Code of Regulations and the exhibits to that subpart.
(a)
(b)
(c)
(1) For chattel security, service the account according to title 7, part 1962, subpart A of chapter XVIII of the Code of Federal Regulations. If any normal income security as defined in that subpart secures a Minor Program loan, the reporting, approval and release provisions in that subpart shall apply.
(2) For real estate security for AMP loans, contact the Office of General Counsel for advice on the appropriate servicing including liquidation if warranted.
(3) For real estate security for IMP loans, service the account according to title 7, part 1951, subpart S, of chapter XVIII of the Code of Federal Regulations.
(a)
(1) The loan will still be adequately secured after the subordination or the value of the loan security will be increased by the amount of advances to be made under the terms of the subordination.
(2) The borrower can document the ability to pay all debts including the new loan.
(3) The action does not change the nature of the borrower's activities to the extent that they would no longer be eligible for a Minor Program loan.
(4) The subordination is for a specific amount.
(5) The borrower is unable, as determined by the Agency, to refinance its loan and graduate in accordance with this subpart.
(6) The loan funds will not be used in such a way that will contribute to erosion of highly erodible land or conversion of wetlands for the production of an agricultural commodity according to title 7, part 1940, subpart G of chapter XVIII of the Code of Federal Regulations.
(7) The borrower has not been convicted of planting, cultivating, growing, producing, harvesting or storing a controlled substance under Federal or state law. “Borrower”, for purposes of this subparagraph, specifically includes an individual or entity borrower and any member, stockholder, partner, or joint operator, of an entity borrower. “Controlled substance”, for the purpose of this subparagraph, is defined at 21 CFR part 1308. The borrower will be ineligible for a subordination for the crop year in which the conviction occurred and the four succeeding crop years. An applicant must attest on the Agency application form that it and its members, if an entity, have not been convicted of such a crime.
(b)
(1) The specific amount of debt for which a subordination is needed;
(2) An appraisal in accordance with § 761.7 of this chapter, if the request is for more than $10,000, unless an appraisal report that is sufficient, as determined by the Agency, that is less than one year old, is on file with the Agency; and
(3) Consent and subordination, as necessary, of all other creditors' security interests.
(c)
(1) If a subordination request does not meet the requirements of this part, the SED may reject it and offer appeal rights, or recommend it to the Administrator, FSA, pursuant to exception authority, for approval.
(2) When the SED rejects a subordination request, the State Office will notify the borrower of the decision.
(3) When recommending to the Administrator for an exception, the SED must provide documentation on how approval of the subordination is in the best interest of the Government.
(a)
(1) Leasing is the only feasible way to continue to operate the enterprise and is a customary practice;
(2) The lease will not interfere with the purpose for which the loan was made;
(3) The borrower retains ultimate responsibility for the operation, maintenance and management of the facility or service for its continued availability and use at reasonable rates and terms;
(4) The lease prohibits amendments to the lease or subleasing arrangements without prior written approval from the Agency;
(5) The lease terms provide that the Agency is a lien holder on the subject property and, as such, the lease is subordinate to the rights and claims of the Agency as lien holder; and
(6) The lease is for less than three years and does not constitute a lease/purchase arrangement, unless the transfer and assumption provisions of this subpart are met.
(b)
(a)
(i) The property is sold for market value based on a current appraisal in accordance with the standards at § 761.7 of this chapter;
(ii) The sale will not prevent carrying out the original purpose of the loan. The borrower must execute RD Form 400-4 “Assurance Agreement” or successor form. The covenant involved will remain in effect as long as the property continues to be used for the same or similar purposes for which the loan was made. The instrument of conveyance will contain the nondiscrimination covenants contained in 7 CFR 1951.204;
(iii) The remaining security for the loan is adequate or will not change after the transaction;
(iv) Sale proceeds remaining after paying any reasonable and necessary selling expenses are applied to the Minor Program loan according to lien priority;
(2) Exchange of all or a portion of security property for an AMP loan may be approved when:
(i) The Agency will obtain a lien on the property acquired in the exchange.
(ii) Property more suited to the borrower's needs related to the purposes of the loan is to be acquired in the exchange;
(iii) The AMP loan will be as adequately secured after the transaction as before;
(iv) It is necessary to develop or enlarge the facility, improve the borrower's debt-paying ability, place the operation on a more sound financial basis or otherwise further the loan objectives and purposes, as determined by the Agency.
(b)
(2) A sale or exchange of real estate that is serving as security for an IMP loan is governed by title 7, part 1965, subpart A of chapter XVIII of the Code of Federal Regulations.
(a)
(1) The debt is paid in full.
(2) Security property is sold for market value and sale proceeds are received and applied to the borrower's creditors according to lien priority, or
(3) An exchange in accordance with § 772.7(b) of this subpart has been concluded.
(b)
(c)
(a)
(1) The present borrower is unable or unwilling to accomplish the objectives of the loan.
(2) The transfer will not harm the Government or adversely affect the Agency's security position.
(3) The transferee will continue with the original purpose of the loan.
(4) The transferee will assume an amount at least equal to the present market value of the loan security.
(5) The transferee documents the ability to pay the AMP loan debt as provided in the assumption agreement and has the legal capacity to enter into the contract.
(6) If there is a lien or judgment against the Agency security being transferred, the transferee is subject to such claims. The transferee must document the ability to repay the claims against the land.
(7) If the transfer is to one or more members of the borrower's organization and there is no new member, there must not be a loss to the Government.
(b)
(1) The entire unpaid balance of the withdrawing member's share of the AMP loan must be assumed;
(2) In accordance with the Association's governing articles, the required number of remaining members
(3) The transfer will not adversely affect collection of the AMP loan.
(c)
(1) The written consent of any other lien holder, if applicable.
(2) A current balance sheet and cash flow statement.
(d)
(e)
(1) The full amount of the loan is assumed.
(2) Less than the full amount of the debt is assumed, and the balance remaining will be serviced in accordance with § 772.9(c) of this subpart.
Transfers and assumptions for IMP loans are processed in accordance with title 7, part 1962, subpart A of chapter XVIII of the Code of Federal Regulations for chattel secured loans and part 1965, subpart A of chapter XVIII of the Code of Federal Regulations for real estate secured loans. Any remaining transferor liability will be serviced in accordance with § 772.9(c) of this subpart.
(a)
(b)
(1) AMP loans shall be reviewed at least every two years. In the year to be reviewed, each borrower must submit, at a minimum, a year-end balance sheet and cash flow projection for the current year.
(2) All IMP borrowers classified as “commercial” or “standard” in accordance with title 7, part 1951, subpart F of chapter XVIII of the Code of Federal Regulations shall be reviewed at least every two years. In the year to be reviewed, each borrower must submit a year-end balance sheet, actual financial performance for the most recent year, and a projected budget for the current year.
(c)
(1) Borrowers with IMP loans that are classified as “commercial” or “standard” will be requested to apply for private financing within 30 days from the date the borrower is notified of lender interest, if an application is required by the lender. For good cause, the Agency may grant the borrower a reasonable amount of additional time to apply for refinancing.
(2) Borrowers with AMP loans will be considered for graduation at least every two years or as otherwise determined by the Agency that the borrower's financial condition has significantly improved.
(d)
(1) The Agency will accelerate the loan of a Minor Program borrower who fails to provide requested documents, does not take positive steps to refinance the loan when commercial credit can be obtained at reasonable rates and terms, or refuses to cooperate in any way with the requirements of this section.
(2) The Agency must inform the borrower in writing of the specific request of which the borrower failed or refused to cooperate and provide appeal rights in accordance with 7 CFR part 780 and 7 CFR part 11.
(a)
(1)
(2)
(3)
(4)
(b)
(a) The Agency may approve reamortization of AMP loans when there is no extension of the final maturity date of the loan and no intervening lien exists on the security for the loan which would jeopardize the Government's security position, and when:
(1)(i) The account is delinquent and cannot be brought current within one year; and
(ii) The borrower has presented a cash flow budget which demonstrates the ability to meet the proposed new payment schedule; or
(2) The account is current, but due to circumstances beyond the borrower's control, the borrower will be unable to meet the annual loan payments;
(b) An exception may be provided by and at the discretion of the Agency Administrator to the conditions in paragraph (a) of this section in accordance with § 772.18.
(a) The Agency may approve, without regard to any loan or total indebtedness limitation, vouchers to pay costs, including insurance and real estate taxes, to preserve and protect the security, the lien, or the priority of the
(b) The Agency may pay protective advances only when it determines it to be in the Government's best financial interest.
(c) Protective advances are immediately due and payable.
When the Agency determines that continued servicing will not accomplish the objectives of the loan and the delinquency or financial stress cannot be cured by the options in § 772.13, the borrower will be encouraged to dispose of the Agency security voluntarily through sale or transfer and assumption. If a transfer or voluntary sale is not carried out, the loan will be liquidated according to title 7, part 1955, subpart A of chapter XVIII of the Code of Federal Regulations.
With respect to any aspect of a credit transaction, the Agency will comply with the requirements of the Equal Credit Opportunity Act as implemented in § 1910.2 of title 7, part 1910, subpart A of chapter XVIII of the Code of Federal Regulations, and the Department's civil rights policy in 7 CFR part 15d.
Exceptions to any requirement in this subpart can be approved in individual cases by the Administrator if application of any requirement or failure to take action would adversely affect the Government's interest. Any exception must be consistent with the authorizing statute and other applicable laws.
2. The authority citation for part 1901 is revised to read as follows:
: 5 U.S.C. 301; 7 U.S.C. 1989; 40 U.S.C. 442; 42 U.S.C. 1480.
3. Amend § 1901.204 by:
a. Removing paragraphs (a)(1), (2), (4), and (10);
b. Redesignating paragraph (a)(3) as paragraph (a)(1);
c. Redesignating paragraphs (a)(5) through (9) as paragraphs (a)(2) through (6); and
d. Redesignating paragraphs (a)(11) through (28) as paragraphs (a)(7) through (24).
4. The authority citation for part 1951 continues to read as follows:
5 U.S.C. 301; 7 U.S.C. 1932 note; 7 U.S.C.1989; 42 U.S.C. 1480.
5. Amend § 1951.201 by removing the words “loans for Grazing and other shift-in-land-use projects;” and “Association Irrigation and Drainage loans;''.
6. Amend § 1951.221 in paragraph (b) heading by removing the words “Grazing Association Loans, Irrigation and Drainage and other''.
Agricultural Marketing Service, USDA.
Proposed rule.
This rule invites comments on a proposed change in the fiscal period under the Walla Walla sweet onion marketing order from June 1 through May 31 to January 1 through December 31. This rule was recommended by the Walla Walla Sweet Onion Marketing Committee (Committee), the agency responsible for local administration of the marketing order regulating the handling of sweet onions grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon. The current fiscal period has been in place since the marketing order's inception in 1995. Because of advance planning needed for market promotion, including paid advertising, the Committee now develops its budget of expenditures before June 1, but delays actual expenditures until that date. This has made it more difficult for the Committee to coordinate the timing of marketing promotion activities with the short harvest and marketing season for Walla Walla sweet onions. The recommended change is expected to help the Committee better coordinate its marketing promotion activities with the marketing season—mid-June into September.
Comments must be received by June 9, 2003.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or E-mail:
Robert J. Curry, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax: (503) 326-2724; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small business may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement and Order No. 956 (7 CFR part 956) regulating the handling of Walla Walla sweet onions grown in Southeast Washington and Northeast Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would change the fiscal period from June 1 through May 31 to January 1 through December 31. This rule would also make conforming changes to the order's administrative rules and regulations. This change was unanimously recommended by the Committee at its December 17, 2003, meeting.
Section 956.40 of the order provides authority for the Committee to incur expenses that are reasonable and necessary to operate the program. Section 956.42 provides that these expenses be paid by assessments levied on fresh shipments of Walla Walla sweet onions. Further, § 956.41 provides that an annual budget of expenses be prepared by the Committee based on the defined fiscal period. Section 956.13 of the order defines “fiscal period” to mean the period beginning on June 1 and ending on May 31 of each year, or such other period as may be recommended by the Committee and approved by USDA.
Walla Walla sweet onions are traditionally harvested from about mid-June through about mid-August, although in recent years harvest has been extended into September due to an increase in spring planted onions and the use of better storage facilities. Walla Walla sweet onions have a short shelf life and are therefore generally marketed within a relatively short period of time following harvest. During the promulgation of the order in 1995, the proponent industry committee—the organization responsible for drafting the order and presenting it during the promulgation hearing—was of the opinion that the new order's fiscal period should begin shortly before the marketing season began. Testimony during the hearing supported the position that the start of the fiscal period should be close to the beginning of the season. This was so a minimum of expenses would be incurred prior to the time assessment revenue was received by the Committee following the sweet onion harvest.
Experience gained over the last eight years has shown the Committee that the June 1 through May 31 fiscal period is not conducive to coordinating the timing of its marketing promotion, including paid advertising activities, with the short harvest and marketing season for Walla Walla sweet onions. The crop is harvested and marketed during a four-month period—mid-June into September.
Because of advance planning needed for marketing promotion projects, the Committee now develops its budget of expenditures before June 1, but delays actual expenditures until that date. This has made it more difficult for the Committee to coordinate the timing of its promotion activities with the short harvest and marketing season. The Committee believes that better timing of marketing promotion activities with the harvest and marketing of Walla Walla sweet onions would improve the distribution and consumption of sweet onions. Hence, the Committee recommended that the fiscal period begin January 1 and end December 31 each year.
As previously stated, the Committee's current fiscal period is June 1 through May 31. The Committee plans on formulating a budget for the twelve-month period beginning June 1, 2003, and submitting it to the USDA for approval prior to that date. The Committee could then begin expending funds in early June for its 2003-2004 promotion and research plans, as well as for administration costs. Any final rule issued as a consequence of this proposed rule would be made effective January 1, 2004. Thus, the Committee would meet after this proposed change is issued as a final rule, but prior to January 1, 2004, to reformulate and resubmit a new budget for USDA approval for the new fiscal period beginning January 1, 2004, and ending December 31, 2004.
As conforming changes to the proposed fiscal period change, this rule would also update language in § 956.142, Interest charges, and § 956.180, Reports by removing the words “of each fiscal period” wherever they appear.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 21 handlers of Walla Walla sweet onions subject to regulation under the order and approximately 37 Walla Walla sweet onion producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.
The Committee estimates that in 2002, 611,955 50-pound units of Walla Walla sweet onions were marketed at an average FOB price of about $9.00 per unit. Thus the total industry value at shipping point was about $5,507,595. Thus, a majority of handlers and producers of Walla Walla sweet onions may be classified as small entities.
This proposal would change the current fiscal period from June 1 through May 31 to January 1 through December 31. The current fiscal period has been in place since the marketing order's inception in 1995. Because of advance planning needed for marketing promotion projects, including paid advertising, the Committee now develops its budget of expenditures before June 1, but delays actual expenditures until that date. This has made it more difficult for the Committee to coordinate the timing of marketing promotion activities with the short harvest and marketing season for Walla Walla sweet onions—mid-June into September. The Committee believes that better timing of marketing promotion and marketing would result with a January 1 through December 31 fiscal period and improve the distribution and consumption of Walla Walla sweet onions.
Section 956.13 of the order defines “fiscal period” and provides the authority by which this recommended change is being proposed. This rule is a change to Committee operations which would not impose any new requirements or costs on Walla Walla sweet onion handlers or producers. It could, on the other hand, simplify the business operations within the Walla Walla sweet onion industry by putting the order's fiscal period on the same basis as that of normal business recordkeeping practices.
The Committee discussed the alternative of leaving the fiscal period as it presently exists, but unanimously concluded that this change, as recommended, would improve program administration.
This rule would not impose any additional reporting or recordkeeping requirements on either small or large Walla Walla sweet onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
The Committee's meeting was widely publicized throughout the Walla Walla sweet onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the December 17, 2002, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Onions, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 956 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 956 continues to read as follows:
7 U.S.C. 601-674.
2. A new § 956.113 is added to subpart “Rules and Regulations” to read as follows:
Pursuant to § 956.13,
3. Section 956.142 is amended by removing the words “of each fiscal period” in the second sentence.
4. Section 956.180 is amended by removing the words “of each fiscal period” in the introductory text.
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the Virus-Serum-Toxin Act regulations to specify the actions that would have to be taken by veterinary biologics licensees and permittees upon their receipt of notice from the Animal and Plant Health Inspection Service (APHIS) to stop the preparation, distribution, sale, barter, exchange, shipment, or importation of any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product. After receiving notice from APHIS to stop the preparation, distribution, sale, barter, exchange, shipment, or importation of any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product, licensees and permittees would be required to notify wholesalers, dealers, jobbers, or other persons known to have veterinary biological products in their possession to stop the preparation, distribution, sale, barter, exchange, shipment, or importation of any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product. In addition, licensees and permittees would be required to submit a complete accounting of the inventory of affected serials or subserials of biological products in the current possession of each person involved in the distribution or sale of the product, and provide written documentation concerning the required notifications as directed by the Administrator of APHIS. These proposed changes are necessary in order to clarify the regulations, provide for the most expeditious means of notification, and to prevent the risk that any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product may cause harm to animals, the public health, or to the environment.
We will consider all comments that we receive on or before June 9, 2003.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 02-107-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 02-107-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Dr. Albert P. Morgan, Chief of Operational Support, Center for Veterinary Biologics, Licensing and Policy Development, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737-1231, (301) 734-8245.
Parts 105 and 115 of the Virus-Serum-Toxin Act regulations (9 CFR parts 105 and 115, referred to below as the regulations) provide, respectively, for the suspension, revocation, or termination of biological licenses or permits and for the inspection of veterinary biologics establishments and veterinary biological products. These regulations also contain provisions that address the actions to be taken by veterinary biologics licensees, permittees, jobbers, wholesalers, dealers, or other persons known to have veterinary biologics in their possession, upon their receipt of notice from the Animal and Plant Health Inspection Service (APHIS) to stop the preparation, distribution, sale, barter, exchange, shipment, or importation of worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product.
Section 105.3 of the regulations provides, in relevant part, that APHIS may notify a licensee or permittee to stop the preparation, sale, barter, exchange, shipment, or importation of any veterinary biological product if at any time it appears that such product may be dangerous in the treatment of domestic animals, or found to be unsatisfactory according to applicable Standard Requirements.
Similarly, § 115.2 provides, in relevant part, that if as a result of any inspection it appears that any veterinary biological product is worthless, contaminated, dangerous, or harmful, the Secretary will give notice of that finding to the manufacturer or importer and to any jobbers, wholesalers, dealers or other persons known to have any of such product in their possession. After receiving such notice, no person may sell, barter, or exchange any such product in any place under the jurisdiction of the United States or ship or deliver for shipment any such product in or from any State, Territory, or the District of Columbia.
Typically, before the stop distribution and sale notifications provided for by §§ 105.3 and 115.2 can be given, APHIS must obtain from the licensees and permittees (manufacturers or importers) the names and addresses of the wholesalers, dealers, jobbers, consignees, or other persons known to have any of the product in their possession. Any delay in obtaining the names and addresses of persons in possession of biological products subject to a stop distribution and sale action increases the risk that such product may cause harm to animals, the public health, or to the environment. APHIS believes that it is prudent to use the most expeditious means available to notify wholesalers, dealers, jobbers, consignees, or other persons concerning the stop distribution and sale action. Therefore, this proposed rule would amend §§ 105.3 and 115.2 to specify actions that veterinary biologics licensees and permittees would have to take when APHIS issues a stop distribution and sale notice concerning a veterinary biological product.
Specifically, APHIS is proposing to amend the regulations to provide that APHIS would contact veterinary biologics licensees and permittees concerning stop distribution and sale actions against any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product. After being contacted by APHIS, veterinary biologics licensees or permittees would be required to immediately provide stop distribution and sale notification to wholesalers, jobbers, dealers, consignees or other persons in their respective distribution systems known to be in possession of such product. APHIS believes that having licensees or permittees provide stop distribution and sale notification to wholesalers, jobbers, dealers, consignees, or other persons in their respective distribution systems known to be in possession of any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product is the most expeditious means of notification. Licensees and permittees have information readily available to them concerning the products that have been shipped to wholesalers, jobbers, dealers, consignees, or other persons in their respective distribution systems.
In addition, veterinary biologics licensees and permittees also would be required to document, in writing, all communications with wholesalers, dealers, jobbers, consignees, or other persons concerning the stop distribution and sale action; obtain a complete accounting of the inventory of such product in the possession of such wholesalers, jobbers, dealers, and other persons; and, as directed by the Administrator, submit records of all actions taken to ensure compliance with the stop distribution and sale notification.
This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for purposes of Executive Order 12866, and, therefore, has not been reviewed by the Office of Management and Budget.
APHIS issues stop distribution and sale actions if information is received indicating that a serial or subserial of a licensed veterinary biological product is worthless, contaminated, dangerous, harmful, or unsatisfactory. Such information may come from inspection findings, an investigation, an adverse event report, or tests conducted by the Center for Veterinary Biologics Laboratory or by the licensee or permittee. Stop distribution and sale actions may be necessary to prevent risk to the health of animals, to the public health or well-being, or to the environment. Currently, the regulations in §§ 105.3 and 115.2 provide that APHIS may issue a notice requiring veterinary biologics licensees and permittees to stop distribution and sale if a product is found to be unsatisfactory according to applicable standard requirements or if it appears that such product is worthless, contaminated, dangerous, or harmful.
APHIS is proposing to amend the regulations to provide that APHIS would contact veterinary biologics licensees and permittees concerning stop distribution and sale actions against any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product. After being contacted by APHIS, veterinary biologics licensees or permittees would be required to immediately provide stop distribution and sale notification to wholesalers, jobbers, dealers, consignees, or other persons in their respective distribution systems known to be in possession of such product. APHIS believes that having licensees or permittees provide stop distribution and sale notification to wholesalers, jobbers, dealers, consignees, or other persons in their respective distribution systems known to be in possession of any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product is the most expeditious means of notification. Licensees and permittees have information readily available to them
In addition, veterinary biologics licensees and permittees also would be required to document, in writing, all communications with wholesalers, dealers, jobbers, consignees, or other persons concerning the stop distribution and sale action; obtain a complete accounting of the inventory of such product in the possession of such wholesalers, jobbers, dealers, and other persons; and, as directed by the Administrator, submit records of all actions taken to ensure compliance with the stop distribution and sale notification.
The effect of this action would be to clarify the regulations, provide for the most expeditious means of notification, and to prevent the risk that any worthless, contaminated, dangerous, harmful, or unsatisfactory veterinary biological product may cause harm to animals, the public health, or to the environment.
This proposed rule would affect all veterinary biologics licensees and permittees. Currently, there are approximately 135 veterinary biological establishments, including permittees. According to the standards of the Small Business Administration, most veterinary biological establishments would be classified as small entities.
Section 116.2 of the regulations currently requires licensees and permittees to maintain records of the quantity and location of each biological product that is prepared, that is in storage, and that is in distribution channels. In addition, each licensee, distributor, and permittee must maintain detailed disposition records showing the sale, shipment, or other disposition of any biological products that they have handled. Given these existing recordkeeping requirements, APHIS believes that the proposed requirement that licensees and permittees submit to APHIS a complete accounting of the inventory of an affected serial or subserial of a biological product in the current possession of each person involved in the distribution or sale of the product should not impose any undue recordkeeping burden. APHIS also believes that the current requirement for the maintenance of detailed disposition records would enable licensees and permittees to notify persons in their distribution system concerning stop distribution and sale notifications issued by APHIS without having to incur any undue recordkeeping burden.
APHIS anticipates that the only economic effects that would be associated with this proposed rule would be related to the costs incurred by licensees and permittees in connection with the notification process itself. This proposed rule does not specify the means by which licensees and permittees are required to give notification, only that the notification be made by them immediately upon receipt of the stop distribution and sale notification from APHIS. APHIS expects that most licensees and permittees would use electronic mail or facsimile to notify wholesalers, jobbers, dealers, consignees, or other persons in their respective distribution systems known to be in possession of any biological product for which APHIS has issued a stop distribution and sale action. Both of these methods are inexpensive, so the actual transmittal costs associated with the proposed notification requirement would be minimal.
Licensees and permittees could retain electronic mail return receipts or facsimile confirmation sheets to address the proposed requirement for documentation that notifications have been made, both of which can be produced automatically by the sender's electronic mail system or facsimile machine. There would be some personnel costs associated with producing and addressing the notification document that would have to be sent out, but the existing requirement for the maintenance of detailed disposition records discussed in the previous paragraph should serve to minimize, to the extent possible, the time spent engaging in those activities.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This program is listed in the category of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. The Virus-Serum-Toxin Act does not provide administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
In this document, we are proposing to amend the regulations in §§ 105.3 and 115.2 to specify actions that veterinary biologics licensees and or permittees would have to take when APHIS issues a stop distribution and sale notice concerning a veterinary biological product. This process would entail the use of two new information collection activities.
First, after being contacted by APHIS, veterinary biologics licensees or permittees would be required to immediately provide stop distribution and sale notification to wholesalers, jobbers, dealers, consignees, or other persons in their respective distribution systems known to be in possession of such product.
Second, veterinary biologics licensees and permittees would have to obtain a complete accounting of the inventory of such product in the possession of such wholesalers, jobbers, dealers, and other persons in their distribution system.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Animal biologics, Exports, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements.
Animal biologics, Exports, Imports, Reporting and recordkeeping requirements.
Accordingly, we propose to amend 9 CFR parts 105 and 115 as follows:
1. The authority citation for part 105 would continue to read as follows:
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
2. Section 105.3 would be amended by adding a new paragraph (c) to read as set forth below:
(c) When notified to stop distribution and sale of a serial or subserial of a veterinary biological product under the provisions of paragraph (a) or (b) of this section, veterinary biologics licensees or permittees shall:
(1) Stop the preparation, distribution, sale, barter, exchange, shipment, or importation of the affected serial(s) or subserial(s) of any veterinary biological product pending further instructions from APHIS.
(2) Immediately send stop distribution and sale notifications to any jobbers, wholesalers, dealers, foreign consignees, or other persons known to have any such veterinary biological product in their possession, which instruct them to stop the preparation, distribution, sale, barter, exchange, shipment, or importation of any such veterinary biological product. All notifications shall be documented in writing by the licensee or permittee.
(3) Account for the quantity of each serial(s) or subserial(s) of any veterinary biological product at each location in the distribution channel.
(4) When required by the Administrator, submit complete and accurate reports of all notifications concerning stop distribution and sale actions to the Animal and Plant Health Inspection Service pursuant to § 116.5 of this subchapter.
3. The authority citation for part 115 would continue to read as follows:
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
4. Section 115.2 would be revised to read as follows:
(a) Any biological product, the container of which bears a United States veterinary license number or a United States veterinary permit number or other mark required by these regulations, may be inspected at any time or place. If, as a result of such inspection, it appears that any such product is worthless, contaminated, dangerous, or harmful, the Secretary shall give notice to stop distribution and sale to the manufacturer or importer and may proceed against such product pursuant to the provisions of part 118 of this subchapter.
(b) When notified to stop distribution and sale of a serial or subserial of a veterinary biological product by the Secretary, veterinary biologics licensees or permittees shall:
(1) Stop the preparation, distribution, sale, barter, exchange, shipment, or importation of the affected serial(s) or subserial(s) of any veterinary biological product pending further instructions from APHIS.
(2) Immediately send stop distribution and sale notifications to any jobbers, wholesalers, dealers, foreign consignees, or other persons known to have any such veterinary biological product in their possession, which instruct them to stop the preparation, distribution, sale, barter, exchange, shipment, or importation of any such veterinary biological product. All notifications shall be documented in writing by the licensee or permittee.
(3) Account for the quantity of each serial(s) or subserial(s) of any veterinary biological product at each location in the distribution channel.
(4) When required by the Administrator, submit complete and accurate reports of all notifications concerning stop distribution and sale actions to the Animal and Plant Health Inspection Service pursuant to § 116.5 of this subchapter.
(c) Unless and until the Secretary shall otherwise direct, no persons so notified shall thereafter sell, barter, or exchange any such product in any place under the jurisdiction of the United States or ship or deliver for shipment any such product in or from any State, Territory, or the District of Columbia. However, failure to receive such notice shall not excuse any person from compliance with the Virus-Serum-Toxin Act.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve revisions to particulate matter (PM) regulations for Richmond Power and Light Company (RPL) of Wayne County, Indiana. On January 31, 2003, Indiana requested that EPA “parallel process” this State Implementation Plan (SIP) revision request, as an amendment to 326 Indiana Administrative Code (IAC) 6-1-14. RPL operates a power plant with two coal-fired boilers. EPA approved revisions to the short-term PM limits for these boilers on April 9, 1996 (61 FR 15704). Indiana is now seeking to revise the long-term (annual) PM limits for RPL to make them consistent with the short-term limits. The new PM limits are 320 tons per year (TPY) for boiler no. 1 and 700 TPY for boiler no. 2. Modeling analyses show that air quality is expected to be maintained.
The EPA must receive written comments by May 9, 2003.
You should mail written comments to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
You may inspect copies of Indiana's submittal at: Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Matt Rau, Environmental Engineer, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone: (312) 886-6524.
Throughout this document wherever “we,” “us,” or “our” are used we mean the EPA.
The EPA is proposing, through “parallel processing,” to approve revisions to the annual (long-term) PM limits for two boilers at the Richmond Power and Light facility. These revisions to the limits in 326 IAC 6-1-14 make these long-term limits consistent with the short-term limits previously approved by EPA as SIP revisions. The requested new PM limits are 320 TPY for boiler no. 1 and 700 TPY for boiler no. 2.
Parallel processing enables EPA to propose action on a state rule before it becomes final under state law. If the final, adopted state rule is substantially unchanged from the submission on which the proposed rule is based, then EPA may take final action based on its proposal. Significant changes in the rule between the version reviewed and the final, adopted version, may result in a new EPA proposed rule on the adopted rule. Without such significant changes, EPA will proceed with final rulemaking.
Indiana submitted, as a parallel processing request, revisions to 326 IAC 6-1-14 on January 31, 2003. Indiana revised the long-term PM limits for the two RPL boilers to make them consistent with their short-term limits. For boiler no. 1, the new limit is 320 TPY; for boiler no. 2, the new limit is 700 TPY. The previous limits were 71.6 TPY and 233.3 TPY, respectively. RPL's short-term limits remain at 0.19 pounds per million British Thermal Units (lb/MMBTU) and 0.22 lb/MMBTU, respectively. The combined short-term emissions limit for both boilers stays at 0.22 lb/MMBTU.
Indiana submitted a PM modeling analysis for RPL on August 8, 1995 as part of the SIP revision request approved by EPA in April 1996. This modeling analysis applies to both the short-term limits approved in 1996 and to the new long-term limits. The maximum modeled annual PM concentration was 42.5 micrograms per meter cubed (μg/m
Particulate matter interferes with lung function when inhaled. Exposure to PM can cause heart and lung disease. PM also aggravates asthma and bronchitis. Airborne particulate is the main source of haze that causes a reduction in visibility. It also is deposited on the ground and in the water. This harms the environment by changing the nutrient and chemical balance.
Each boiler is equipped with a control device. A common 325-foot tall stack replaced two 150-foot tall stacks in 1989. Both of these features help reduce PM concentration. Although the proposed new long-term emission limits are an increase over current limits, they are consistent with the short-term limits. The short-term limits should protect against brief, high concentration episodes. The modeling analysis found that with the new limits, the annual PM NAAQS should be maintained. Therefore, the new limits being proposed should protect the air quality of Wayne County, Indiana.
EPA is proposing, through parallel processing, to approve revisions to 326 IAC 6-1-14, the PM emission limits for Wayne County, Indiana. These revisions change the long-term (annual) PM emission limits for both boilers at the RPL facility to make them consistent with short-term limits for these sources. EPA approved revisions to the short-term limits for RPL on April 9, 1996. The PM modeling analysis show concentrations below the NAAQS level, demonstrating that the air quality of Wayne County, Indiana should be protected.
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
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 Clean Air Act.
This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 9, 2003. 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. (
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule and request for comment.
The EPA (also “the Agency” in this preamble) is proposing to grant final authorization to the State of Oklahoma Department of Environmental Quality (ODEQ) for its hazardous waste program revisions, specifically, revisions needed to meet the Resource Conservation and Recovery Act (RCRA), Cluster X which contains Federal rules promulgated from July 1, 1999, to June 30, 2000. In the “Rules and Regulations” section of this
Written comments must be received on or before May 9, 2003.
Mail written comments to Alima Patterson, Region 6, Regional Authorization Coordinator, Grants and Authorization Section (6PD-G), Multimedia Planning and Permitting Division, at the address shown below. You can examine copies of the materials
Alima Patterson (214) 665-8533.
For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this
Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS).
Notification of a proposal for EFPs to conduct experimental fishing; request for comments.
The Administrator, Northeast Region, NMFS (Regional Administrator) has made a preliminary determination that the subject EFP application contains all the required information and warrants further consideration. The Regional Administrator has also made a preliminary determination that the activities authorized under the EFP would be consistent with the goals and objectives of the Northeast (NE) Multispecies Fishery Management Plan (FMP). However, further review and consultation may be necessary before a final determination is made to issue the EFP. Therefore, NMFS announces that the Regional Administrator proposes to issue an EFP that would allow three vessels to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the Northeastern United States. The EFP would exempt three vessels from the minimum mesh size requirements for the Gulf of Maine (GOM) Regulated Mesh Area (RMA); regulations pertaining to the GOM Rolling Closure Areas III and V; days-at-sea (DAS) restrictions; and minimum fish size requirements. The experiment proposes to conduct a study to target cod and other groundfish species using modified bottom trawl gear to assess the effectiveness of square and hexagonal mesh escape windows, both with and without visual stimuli, in reducing the bycatch of non-target and undersized fish in the GOM groundfish fishery. The EFP would allow these exemptions for three commercial fishing vessels, for not more than 24 days of sea trials. All experimental work would be monitored at sea by observers trained to NMFS standards as part of this Cooperative Research Partners Initiative-funded project. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.
Comments on this document must be received on or before April 24, 2003.
Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on the Cooperative Research Partners Initiative Escape Window and Visual Stimuli Selectivity Study.” Comments may also be sent via facsimile (fax) to (978) 281-9135.
Douglas W. Christel, Fisheries Management Specialist, 978-281-9141.
A completed application for an EFP was submitted by Dr. Christopher Glass as part of a Cooperative Research Partners Initiative-funded project on January 28, 2003. The EFP would exempt three federally permitted commercial fishing vessels from the following NE multispecies provisions: The minimum mesh size requirements for the GOM RMA at 50 CFR 648.80(a)(3)(i); regulations pertaining to the GOM Rolling Closure Areas III and V at 50 CFR 648.81(g)(1)(iii) and (v), respectively; NE multispecies DAS restrictions at 50 CFR 648.82(a); and minimum fish size requirements specified at 50 CFR 648.83(a)(1).
The EFP would allow the commercial vessels to conduct the proposed study using modified bottom trawl gear. A total of four experimental codend configurations would be developed, including: (1) A codend made of 6.5-inch (16.51-cm) diamond mesh preceded by a 7-inch (17.78-cm) square mesh escape window in the extension; (2) a codend made of 6.5-inch (16.51-cm) diamond mesh preceded by a 7-inch (17.78-cm) hexagonal mesh escape window in the extension; (3) a codend made of 6.5-inch (16.51-cm) diamond mesh preceded by a 7-inch (17.78-cm) square mesh escape window in the extension, with additional visual stimulus by a black panel wrapped around the codend between the escape window and the codend; (4) a codend made of 6.5-inch (16.51-cm) diamond mesh preceded by a 7-inch (17.78-cm) hexagonal mesh escape window in the extension, with additional visual stimulus by a black panel wrapped around the codend between the escape window and the codend. Two conventional nets of 6.5-inch (16.51-cm) diamond mesh and 6.5-inch (16.51-cm) square mesh codends would be used to compare the effectiveness of the experimental extension configurations. For each of the four experimental codend configurations, a total of 30 valid tows would be conducted, while a total of 18 valid tows would be conducted for each of the two control codends, for a project total of approximately 156 tows of 20 minutes each in duration. Each of the three participating vessels would test all six of the codend configurations, concurrently, in different portions of the intended sampling area. Sampling would occur during two seasons (spring and fall), with operations taking place in May and October 2003, respectively.
A total of 24 DAS would be used during the course of this research. Each vessel would conduct 4-day fishing trips during each of the two seasons to carry out the sea trials. Vessels would target the following species: Atlantic cod, haddock, yellowtail flounder, winter flounder, summer flounder, and American plaice. The incidental catch is expected to be comprised mainly of skate, smooth and spiny dogfish, sculpin, sea raven, and sea robin.
The applicant requested that the research be conducted in the GOM in an area including 30-minute statistical squares 124, 125, 132, and 133;
The catches of each codend configuration would be compared and analyzed to assess the effectiveness of
The participating vessels would be required to report all landings in their Vessel Trip Reports. The data collection activities aboard the participating vessel would be observers trained to NMFS standards to ensure compliance with the experimental fishery objectives. The EFP would also contain a provision that the Regional Administrator has the authority to reconsider the continuation of the experimental fishery on a month-to-month basis, based upon a monthly status report outlining total catch and bycatch submitted by the applicant, and would authorize the Regional Administrator to terminate the experimental fishery at any time, at her discretion.
Based on the results of the EFPs, this action may lead to future rulemaking.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, we are giving notice of a meeting of the National Wildlife Services Advisory Committee.
The meeting will be held on June 24, 2003, from 8 a.m. to 5 p.m. and June 25, 2003, from 8 a.m. to noon.
The meeting will be held at the USDA Center at Riverside, 4700 River Road, Riverdale, MD.
Mrs. Joanne Garrett, Director, Operational Support Staff, WS, APHIS, 4700 River Road, Unit 87, Riverdale, MD 20737-1234, (301) 734-7921.
The National Wildlife Services Advisory Committee (Committee) advises the Secretary of Agriculture concerning policies, program issues, and research needed to conduct the Wildlife Services (WS) program. The Committee also serves as a public forum enabling those affected by the WS program to have a voice in the program's policies.
The meeting will focus on operational and research activities and will be open to the public. Due to time constraints, the public will not be able to participate in the Committee's discussions. However, written statements concerning meeting topics may be filed with the Committee before or after the meeting by sending them to Mrs. Joanne Garrett at the address listed under
This notice of meeting is given pursuant to section 10 of the Federal Advisory Committee Act (5 U.S.C. App. II).
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has determined the regulatory review period for Poulvac® ST Vaccine and is publishing this notice of that determination as required by law. We have made this determination in response to the submission of an application to the Commissioner of Patents and Trademarks, Department of Commerce, for the extension of a patent that claims that veterinary biologic.
We will consider all requests for revision of the regulatory review period determination that we receive on or before May 9, 2003. We will consider all due diligence petitions that we receive on or before October 6, 2003.
You may submit revision requests and due diligence petitions by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your request or petition (an original and three copies) to: Docket No. 03-035-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your request or petition refers to Docket No. 03-035-1. If you use e-mail, address your request or petition to
You may request a copy of the regulatory review period determination by writing to Dr. Patricia L. Foley, USDA, APHIS, VS, CVB-LPD, 510 South 17th Street, Suite 104, Ames, IA 50010-8197, or by calling (515) 232-5785. Please refer to the docket number, date, and complete title of this notice when requesting copies.
A copy of the regulatory review period determination and any revision requests or due diligence petitions that we receive on this determination are available for public inspection in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Dr. Albert P. Morgan, Chief Staff Officer, Operational Support Section, Center for Veterinary Biologics, Licensing and Policy Development, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737-1231; phone (301) 734-8245; fax (301) 734-4314. For information regarding the regulatory review period determination, contact Dr. Patricia L. Foley, APHIS, VS, CVB-LPD, 510 South 17th Street, Suite 104, Ames, IA 50010-8197; phone (515) 232-5785.
The provisions of 35 U.S.C. 156, “Extension of patent term,” provide, generally, that a patent for a product may be extended for a period of up to 5 years as long as the patent claims a product that, among other things, was subject to a regulatory review period before its commercial marketing or use. (The term “product” is defined in that section as “a drug product” [which includes veterinary
The regulations in 9 CFR part 124, “Patent Term Restoration” (referred to below as the regulations), set forth procedures and requirements for the Animal and Plant Health Inspection Service's (APHIS) review of applications for the extension of the term of certain patents for veterinary biological products pursuant to 35 U.S.C. 156. As identified in the regulations, the responsibilities of APHIS include:
• Assisting Patent and Trademark Office of the U.S. Department of Commerce in determining eligibility for patent term restoration;
• Determining the length of a product's regulatory review period;
• If petitioned, reviewing and ruling on due diligence challenges to APHIS's regulatory review period determinations; and
• Conducting hearings to review initial APHIS findings on due diligence challenges.
The regulations are designed to be used in conjunction with regulations issued by the Patent and Trademark Office concerning patent term extension, which may be found at 37 CFR 1.710 through 1.791.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For veterinary biologics, the testing phase begins on the date the authorization to prepare an experimental veterinary biologic became effective and runs until the approval phase begins. The approval phase begins on the date an application for a license was initially submitted for approval and ends on the date such license was issued. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Commissioner of Patents and Trademarks may award, APHIS' determination of the length of a regulatory review period for a veterinary biologic will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(5)(B).
APHIS recently licensed for production and marketing the veterinary biologic Poulvac ® ST Vaccine. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for Poulvac ® ST Vaccine (U.S. Patent No. 4,735,801) from the Board of Trustees of Leland Stanford Junior University, and the Patent and Trademark Office requested APHIS' assistance in determining this patent's eligibility for patent term restoration. In a letter dated January 22, 2003, APHIS advised the Patent and Trademark Office that this veterinary biologic had undergone a regulatory review period and that the approval of Poulvac ® ST Vaccine (Salmonella Typhimurium Vaccine, Live Virus) represented the first permitted commercial licensing or use of the product. Subsequently, the Patent and Trademark Office requested that APHIS determine the product's regulatory review period.
APHIS has determined that the applicable regulatory review period for Poulvac ® ST Vaccine is 1,695 days. Of this time, 128 days occurred during the testing phase of the regulatory review period, and 1,567 days occurred during the approval phase. These periods were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for for patent extension, this applicant seeks 1,695 days of patent term extension.
Section 124.22 of the regulations provides that any interested person may request a revision of the regulatory review period determination within 30 days of the date of this notice (see
• The identity of the product;
• The identity of the applicant for patent term restoration;
• The docket number of this notice; and
• The basis for the request for revision, including any documentary evidence.
Further, under § 124.30 of the regulations, any interested person may file a petition with APHIS, no later than 180 days after the date of this notice (see
35 U.S.C. 156.
Commodity Credit Corporation, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Commodity Credit Corporation’s (CCC) intention to request an extension for a currently approved information collection in support of the Regulations—Financing Commercial Sales of Agricultural Commodities under Title I, Public Law 480; Request for Vessel Approval, Form CCC-105 and Request for Vessel Approval Form CCC-105 (cotton); and Declaration of Sale, Form FAS-359.
Comments on this notice must be received by June 9, 2003, to be assured of consideration.
William Hawkins, Director, Program Administration Division, Foreign Agricultural Service, U.S. Department of Agriculture, Stop 1031, Washington, DC 20250-1031, telephone (202) 720-3241.
The information collected is used by CCC to manage, plan, evaluate and account for government resources. The reports and records are required to ensure the proper and judicious use of public funds.
Copies of this information collection can be obtained from Kimberly Chisley, the Agency Information Collection Coordinator, at (202) 720-2568.
Farm Service Agency and the Commodity Credit Corporation, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Farm Service Agency (FSA) and the Commodity Credit Corporation (CCC), is seeking comments from all interested individuals and organizations on a currently approved information collection with revision. This information collection is used to support payment eligibility and payment limitation determinations for a multiple programs including the Conservation Reserve Program, the Price Support Programs, and the Direct and Counter-Cyclical Program authorized by the Farm Security and Rural Investment Act of 2002, and the Noninsured Crop Disaster Assistance Program.
Comments on this notice must be received on or before June 9, 2003, to be assured consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Farm Service Agency, Attn: James Baxa, Agricultural Program Specialist, Production, Emergencies, and Compliance Division, Farms Service Agency, United States Department of Agriculture, STOP 0517, Room 4752, South Building, 1400 Independence Avenue, SW., Washington, DC 20250-0517. Comments also may be submitted via facsimile to (202) 720-4941 or by e-mail to
James Baxa, Agricultural Program Specialist at (202) 720-4189, or Diane Sharp, Director of Production, Emergencies, and Compliance Division at (202) 720-7641.
All comments received in responses 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.
Forest Service, USDA.
Notice.
This notice lists the newspapers that will be used by the ranger districts, forests and regional office of the Intermountain Region to publish legal notices required under 36 CFR parts 215 and 217. The intended effect of this action is to inform interested members of the public which newspapers the Forest Service will use to publish notices of proposed actions and notices of decision. This will provide the public with constructive notice of Forest Service proposals and decisions, provide information on the procedures to comment or appeal, and establish the date that the Forest Service will use to determine if comments or appeals were timely.
Publication of legal notices in the listed newspapers will begin on or after April 1, 2003. The list of newspapers will remain in effect until October 1, 2003, when another notice will be published in the
Priscilla McLain, Regional Appeals Coordinator, Intermountain Region, 324 25th Street, Ogden, UT 84401, and phone (801) 625-5146.
The administrative procedures at 36 CFR parts 215 and 217 require the Forest Service to publish notices in a newspaper of general circulation. The content of the notices is specified in 36 CFR parts 215 and 217. In general, the notices will identify: the decision or project, by title or subject matter; the name and title of the official making the decision; how to obtain additional information; and where and how to file comments or appeals. The date the notice is published will be used to establish the official date for the beginning of the comment or appeal period. The newspapers to be used are as follows:
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Wyoming Range Allotment Complex (composed of the Corral Creek, Mule Creek, Grizzly Creek, Pickle Pass, Upper Grayback/Phosphate, North Horse, and Prospect Peak domestic sheep allotments) is located in Townships 34, 35, 36 and 37 North, Ranges 114, 115 and 116 West; Sixth Principal Meridian. The majority of the area (65%) is located within Sublette County, with the remainder being in Lincoln County. The complex is located on three districts—Greys River, Jackson, and Big Piney. Big Piney Ranger District administers all the allotments except Pickle Pass, which is administered by the Greys River District.
Comments concerning the scope of the analysis must be received by May 11, 2003. The draft environmental impact statement is expected July 2003 and the final environmental impact statement is expected September 2003.
Send written comments to: District Ranger, Big Piney Ranger District, Box 218, Big Piney, Wyoming 83113. For further information, mail correspondence to
District Ranger, Big Piney Ranger District, Box 218, Big Piney, Wyoming 83113 or phone (307) 276-3710.
The Purpose and Need is to make recommendations on interpretation and site specific application of Forest Plan standards and guidelines to determine whether or not to allow domestic livestock grazing on the allotment complex.
To date, the Forest Service has identified four alternatives:
The Forest Service proposes to determine on the allotment complex if livestock grazing of 5 sheep bands will continue to be authorized on the allotment complex. All vacant allotment and allotment boundary changes have been incorporated into the complex through the administrative process as defined in FSH 2209.13—Grazing Permit Administration Handbook, Chapter 90—Rangeland Management Decision Making, Interim Directive No.: 2209.13-2002-4 Section 96—Delineation of Grazing Allotments and Section 98—Allotment Management Changes.
The current management provides for grazing 5 bands of sheep on the allotment complex. All vacant allotment and allotment boundary changes have been incorporated into the complex through the administrative process as defined in FSH 2209.13—grazing permit administration handbook, chapter 90—rangeland management decision making, Interim Directive No.: 2209.13-2002-4 Sections 96—Delineation of Grazing Allotments and section 98—Allotment Management Changes.
This alternative would close the Upper Grayback/Phosphate, Pickle Pass, Grizzly Creek and approximately
No domestic livestock would be allowed to graze on the allotment complex. We are required in 40 CFR 1502.14(d) and Forest Service Handbook 1909.15, 23.1 to consider the No Livestock Grazing alternative in detail and to use it as a “baseline” for comparing the effects of the other alternatives.
Greg Clark, District Forest Ranger, Big Piney Ranger District, P.O. Box 218, Big Piney, Wyoming 83113. District Forest Ranger, Greys River Ranger District, P.O. Box 339, Afton, Wyoming 83110 Nancy Hall, District Forest Ranger, Jackson Ranger District, P.O. Box 1689, Jackson, Wyoming 83001.
The decision, which is based on this analysis, will be decide if livestock will be allowed to graze on the allotment complex, either through the implementation of the proposed action, or an alternative to the proposed action. The decision would include any mitigation measures needed in addition to those prescribed in the Forest Plan.
The Forest Service is seeking information, comments, and assistance from individuals, organizations, tribal governments, and federal, state, and local agencies interested in or affected by this project. Comments submitted on the 1999 scoping effort, comments on the Environmental Assessment released in December of 2002, previous field trips, and any new comments will be used to prepare the Draft Environmental Impact Statement (DEIS). Public participation will be solicited by notifying in person and/or by mail known interested and affected publics. News releases will be used to give the public general notice. Public participation activities would include requests for written comments. The first formal opportunity to comment is to respond to this notice of intent, which initiates the scoping process (40 CFR 1501.7). Scoping includes: (1) Identifying potential issues, (2) narrowing the potential issues and identifying significant issues of those that have been covered by prior environmental review, (3) exploring alternatives in addition to No Action, and (4) identifying potential environmental effects of the proposed action and alternatives.
The Forest Service has identified the following potential issues. In addition, through the April 1999 scoping effort and comments received on the Environmental Assessment released in December 2002, issues have been
This notice of intent initiates the scoping process that guides the development of the environmental impact statement.
The Draft EIS (DEIS) is proposed to be filed with the Environmental Protection Agency (EPA) and to be available for public comment in the Spring of 2003. At that time, the EPA will publish a notice of availability for the DEIS in the
Forest Service, USDA.
Notice of meeting.
The Olympic Peninsula Resource Advisory Committee will hold its next meeting on May 7, 2003. The meeting will be held at Washington State University Extension Learning Center, 201 W Pattison, Port Hadlock, Washington. The meeting will begin at 9:30 a.m. and end at approximately 3:30 p.m. Agenda topics are: Introductions; Approval of minutes of previous meeting; Update on Title II and III Projects; Presentation of project proposals; Selection of recommended projects and priorities; Public comments; and Identify next meeting date and location.
All Olympic Peninsula Resource Advisory Committee Meetings are open to the public. Interested citizens are encouraged to attend.
Direct questions regarding this meeting to Ken Eldredge, RAC Liaison, USDA, Olympic National Forest Headquarters, 1835 Black Lake Blvd., Olympia, WA 98512-5623, (360) 956-2323 or Dale Hom, Forest Supervisor and Designated Federal Official, at (306) 956-2301.
Forest Service, USDA.
Notice of meeting.
The Grays Harbor Resource Advisory Committee will hold its next meeting on May 8, 2003. The meeting will be held at the Aberdeen Timberland Library, 121 E Market Street, Aberdeen, Washington. The meeting will begin at 6:30 p.m. and end at 8:30 p.m. Agenda topics are: Approval of minutes of previous meeting; Update on Title II Projects; Presentation of FY 2003 Title II project proposals; Selection of recommended projects and priorities; Public comments; and Identify next meeting date and location.
All Grays Harbor Resource Advisory Committee Meetings are open to the public. Interested citizens are encouraged to attend.
Direct questions regarding this meeting to Ken Eldredge, RAC Liaison, USDA, Olympic National Forest Headquarters, 1835 Black Lake Blvd., Olympia, WA 98512-5623, (360) 956-2323 or Dale Hom, Forest Supervisor and Designated Federal Official, at (306) 956-2301.
National Agricultural Statistics Service, USDA.
Notification of appointment to the Advisory Committee on Agriculture Statistics.
The Office of the Secretary of Agriculture announces members appointed to the Advisory Committee on Agriculture Statistics, in accordance with the Federal Advisory Committee Act, 5 U.S.C. App.
Carol House, Executive Director, Advisory Committee on Agriculture Statistics, U.S. Department of Agriculture, National Agricultural Statistics Service, 1400 Independence Avenue SW., Room 4117 South Building, Washington, DC 20250-2000. Telephone: 202-720-4333, Fax: 202-720-9013, or e-mail:
The appointment for the twenty-five member committee, which has representation across seven categories which covers a broad range of agricultural disciplines and interests, was signed on February 13, 2003. Appointed members, by their associated category are:
The duties of the Committee are solely advisory. The Committee will make recommendations to the Secretary of Agriculture with regards to the agricultural statistics program of the National Agricultural Statistics Service (NASS) and such other matters as it may deem advisable, or which the Secretary of Agriculture, Under Secretary for Research, Education, and Economics, or the Administrator of NASS may request. The Advisory Committee meeting was held on February 24-25, 2003. All meetings are open to the public. Committee members will be reimbursed for official travel expenses only.
Bureau of the Census, Department of Commerce.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act, Title 5, United States Code, Appendix 2, section 10(a)(b), the Bureau of the Census (Census Bureau) is giving notice of a joint meeting, followed by separate and concurrently held meetings of the Census Advisory Committees (CACs) on the African American Population, the American Indian and Alaska Native Populations, the Asian Population, the Hispanic Population, and the Native Hawaiian and Other Pacific Islander Populations. The Committees will address issues related to the 2010 reengineered decennial census, including the American Community Survey and other related decennial programs. The five Census Advisory Committees on Race and Ethnicity will meet in plenary and concurrent sessions on May 6 and 7. Last-minute changes to the schedule are possible, which could prevent us from giving advance notification.
May 6-7, 2003. On May 6, the meeting will begin at approximately 8 a.m. and end at approximately 5:30 p.m. On May 7, the meeting will begin at approximately 8 a.m. and end at approximately 12:15 p.m.
The meeting will be held at the Sheraton Reston Hotel, 11810 Sunrise Valley Drive, Reston, Virginia 20191.
Jeri Green, Committee Liaison Officer, Department of Commerce, U.S. Census Bureau, Room 3627, Federal Office Building 3, Washington, DC 20233, telephone (301) 763-2070, TTY (301) 457-2540.
The CACs on the African American Population, the American Indian and Alaska Native Populations, the Asian Population, the Hispanic Population, and the Native Hawaiian and Other Pacific Islander Populations are comprised of nine members each. The Committees provide an organized and continuing channel of communication between the representative race and ethnic populations and the U.S. Census Bureau. The Committees provide an outside-user perspective about how research and design plans for the 2010 reengineered decennial census, the American Community Survey, and other related programs realize goals and satisfy needs associated with these communities. They also assist the Census Bureau on ways that census data can best be disseminated to diverse race and ethnic populations and other users.
All meetings are open to the public. A brief period will be set aside at the meeting for public comment. However, individuals with extensive questions or statements must submit them in writing to the Committee Liaison Officer, named above, at least three days before the meeting. Seating is available to the public on a first-come, first-served basis.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Committee Liaison Officer as soon as known and preferably two weeks prior to the meeting.
Notice is hereby given that the application of the Board of Harbor Commissioners of the City of Los Angeles, grantee of FTZ 202, for authority to expand and reorganize FTZ 202 in the Los Angeles, California, area (Doc. 54-2002, 67 FR 72643, 12/6/02), has been amended to include a parcel (42 acres) within Proposed Site 20 at the Park Mira Loma West, which was inadvertently omitted. This increases the total acreage at this site from 531 acres to 573 acres. The application otherwise remains unchanged.
Comments on the change may be submitted to the Foreign-Trade Zones Board, U.S. Department of Commerce, FCB-Suite 4100W, 1401 Constitution Avenue, NW., Washington, DC 20230, by April 25, 2003.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce is currently conducting an administrative review of the antidumping duty order on bulk aspirin from the People's Republic of China. The period of review is July 1, 2001, through June 30, 2002. This review covers imports of subject merchandise from two producer/exporters.
We preliminarily find that sales have been made at not less than normal value. If these preliminary results are adopted in our final results of review, we will instruct the Customs Service to liquidate entries of bulk aspirin produced and exported by Shandong Xinhua Pharmaceutical Co., Ltd., and Jilin Henghe Pharmaceutical Company Ltd., without regard to antidumping duties.
We invite interested parties to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.
April 9, 2003.
Julie Santoboni or Blanche Ziv, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4194, or(202) 482-4207, respectively.
On July 11, 2000, the Department of Commerce (“Department”) published an antidumping order on bulk aspirin from the People's Republic of China (“PRC”).
On July 10 and 30, 2002, in accordance with 19 CFR 351.213(b), two producer/exporters of the subject merchandise, Shandong Xinhua Pharmaceutical Co., Ltd. (“Shandong”), and Jilin Henghe Pharmaceutical Company Ltd. (“Jilin”), respectively, requested that the Department conduct an administrative review of this order. On July 31, 2002, Rhodia, Inc. (“petitioner”) also requested an administrative review for Jilin and Shandong.
On August 27, 2002, we published a notice of initiation of the administrative review.
We issued questionnaires to Jilin and Shandong on September 24, 2002. We received responses to the questionnaires from Shandong and Jilin on November 22 and December 4, 2002, respectively.
On December 18, 2002, the Department invited interested parties to comment on surrogate country selection and to provide publicly available information for valuing the factors of production. We received responses from the petitioner on January 22 and 27, 2003. Jilin provided surrogate value information to the Department on January 28 and March 13, 2003.
We issued supplemental questionnaires to Jilin and Shandong between December 2002, and March 2003. We received responses to the supplemental questionnaires from both respondents from January through March 2003.
The product covered by this review is bulk acetylsalicylic acid, commonly referred to as bulk aspirin, whether or not in pharmaceutical or compound form, not put up in dosage form (tablet, capsule, powders or similar form for direct human consumption). Bulk aspirin may be imported in two forms, as pure ortho-acetylsalicylic acid or as mixed ortho-acetylsalicylic acid. Pure ortho-acetylsalicylic acid can be either in crystal form or granulated into a fine powder (pharmaceutical form). This product has the chemical formula C9H8O4. It is defined by the official monograph of the United States Pharmacopoeia 23 (“USP”). It is currently classifiable under the
Mixed ortho-acetylsalicylic acid consists of ortho-acetylsalicylic acid combined with other inactive substances such as starch, lactose, cellulose, or coloring materials and/or other active substances. The presence of other active substances must be in concentrations less than that specified for particular nonprescription drug combinations of aspirin and active substances as published in the
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under review is dispositive.
It is the Department's standard policy to assign all exporters of the merchandise subject to review in nonmarket economy (“NME”) countries a single rate unless an exporter can demonstrate an absence of government control, both in law and in fact, with respect to exports. To establish whether an exporter is sufficiently independent of government control to be entitled to a separate rate, the Department analyzes the exporter in light of the criteria established in the
Evidence supporting, though not requiring, a finding of
A
In the
For certain sales made by the respondents to the United States, we used constructed export price (“CEP”) in accordance with section 772(b) of the Tariff Act of 1930, as amended (“the Act”), because the first sale to an unaffiliated purchaser occurred after importation of the merchandise into the United States. For other sales made by Jilin, we used export price (“EP”), in accordance with section 772(a) of the Act, because the subject merchandise was sold outside the United States to unaffiliated purchasers in the United States prior to importation into the United States and constructed export price methodology was not otherwise indicated.
We calculated EP based on the FOB prices to unaffiliated purchasers. We calculated CEP based on FOB and delivered prices from the respondents' U.S. subsidiaries to unaffiliated customers. In accordance with section 772(c) of the Act, as appropriate, we deducted from the starting price foreign inland freight, international freight, marine insurance, brokerage and handling, U.S. inland freight, U.S. customs duties, and U.S. warehousing expenses. We valued the deductions for foreign inland freight using surrogate data based on Indian freight costs. We selected India as the surrogate country for the reasons explained in the “
To value brokerage and handling, we used the public version of a U.S. sales listing reported in the questionnaire response submitted by Meltroll Engineering for
In accordance with section 772(d)(1) of the Act, for CEP sales we made deductions for the following selling expenses that related to economic activity in the United States: credit expenses, indirect selling expenses, inventory carrying costs, and direct selling expenses. Since neither respondent had U.S. dollar denominated borrowings during the POR, we calculated credit expenses using the short-term interest rate during the POR, as stated by the Federal Reserve Board. In accordance with section 772(d)(3) of the Act, we deducted from the starting price an amount for profit.
Section 773(c)(1) of the Act provides that the Department shall determine the normal value (“NV”) using a factors-of-production methodology if: (1) the merchandise is exported from a NME country; and (2) the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value (“CV”) under section 773(a) of the Act.
The Department has treated the PRC as a NME country in all previous antidumping cases. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is a NME country shall remain in effect until revoked by the administering authority. The parties in this proceeding have not contested such treatment in this review. Therefore, we treated the PRC as a NME country for purposes of this review and calculated NV by valuing the factors of production in a surrogate country.
Section 773(c)(4) of the Act requires the Department to value the NME producer's factors of production, to the extent possible, in one or more market economy countries that: (1) are at a level of economic development comparable to that of the NME, and (2) are significant producers of comparable merchandise. The Department has determined that India, Pakistan, Indonesia, Sri Lanka, and the Philippines are countries comparable to the PRC in terms of overall economic development. For a further discussion of our surrogate selection, see the December 12, 2002, Memorandum to Susan Kuhbach from Jeffrey May, “2
We obtained and relied upon publicly available information wherever possible. In many instances, we used the
In accordance with section 773(c) of the Act, we calculated NV based on factors of production reported by the respondents. To calculate NV, the
In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices to make them delivered prices. For the distances reported, we added to Indian CIF surrogate values a surrogate freight cost using the reported distances from the PRC port to the PRC factory, or from the domestic supplier to the factory. This adjustment is in accordance with the United States Court of Appeals for the Federal Circuit's decision in
Certain inputs in the production of bulk aspirin are considered business proprietary information by the respondents and cannot be discussed in this preliminary results notice. For a complete analysis of surrogate values,
We preliminary find that the following dumping margins exist for the period July 1, 2001, through June 30, 2002:
Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of bulk aspirin entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(1) of the Act: (1) for the companies named above, the cash deposit rates for exports to the United States by these companies will be the rates for these firms shown above, except that, for exporters with
Any interested party may request a hearing within 30 days of publication of this notice.
The Department will issue a notice of final results of this administrative review, including the results of its analysis of issues raised in any such written comments, within 120 days of publication of these preliminary results.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results and Partial Rescission of Countervailing Duty Administrative Review.
The Department of Commerce is conducting an administrative review of the countervailing duty order on certain pasta from Italy for the period January 1, 2001, through December 31, 2001. We preliminarily find that certain producers/exporters have received countervailable subsidies during the period of review. If the final results remain the same as these preliminary results, we will instruct the U.S. Customs Service to assess countervailing duties as detailed in the “Preliminary Results of Review” section of this notice.
As certain requests for review were withdrawn, we are rescinding this review for the following companies: Labor S.r.L., F. Divella, S.p.A., and Delverde, S.p.A.
Interested parties are invited to comment on these preliminary results (
April 9, 2003.
Craig Matney or Stephen Cho, AD/CVD Enforcement, Group I, Office 1, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1778 or 482-3798, respectively.
The Department of Commerce (the “Department”) published the countervailing duty order on certain pasta from Italy on July 24, 1996 (
On October 2, 2002, F. Divella, S.p.A. and Labor S.r.L. withdrew their requests for review, and on October 11, 2002, Delverde, S.p.A. withdrew its request for review. We are rescinding this administrative review for these three companies (
Thus, this administrative review of the order covers the following producers/exporters of the subject merchandise: F.lli De Cecco di Filippo Fara S. Martino S.p.A. (“De Cecco”) and Italian American Pasta Company, S.r.L. (“IAPC”).
On September 10, 2002, we issued countervailing duty questionnaires to the Commission of the European Union (“EC”), the Government of Italy (“GOI”), and the producers/exporters which requested a review.
As noted above, F. Divella, S.p.A., Labor S.r.L. and Delverde, S.p.A. withdrew their requests for review. Because these withdrawals were timely filed, we are rescinding this review with respect to these companies (
Imports covered by this review are shipments of certain non-egg dry pasta in packages of five pounds (2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white (“subject merchandise”). The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags, of varying dimensions.
Excluded from the scope of this review are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by the Istituto Mediterraneo di Certificazione, Bioagricoop S.c.r.l., QC&I International Services, Ecocert Italia, the Consorzio per il Controllo dei Prodotti Biologici, Associazione Italiana per l'Agricoltura Biologica, or Codex S.r.L.
The merchandise subject to review is currently classifiable under item 1902.19.20 of the
The Department has issued the following scope rulings to date:
(1) On August 25, 1997, the Department issued a scope ruling that multicolored pasta, imported in kitchen display bottles of decorative glass that are sealed with cork or paraffin and bound with raffia, is excluded from the scope of the countervailing duty order. (
(2) On July 30, 1998, the Department issued a scope ruling, finding that multipacks consisting of six one-pound packages of pasta that are shrink-wrapped into a single package are within the scope of the countervailing duty order. (
(3) On October 26, 1998, the Department self-initiated a scope inquiry to determine whether a package weighing over five pounds as a result of allowable industry tolerances may be within the scope of the countervailing duty order. On May 24, 1999, we issued a final scope ruling finding that, effective October 26, 1998, pasta in packages weighing or labeled up to (and including) five pounds four ounces is within the scope of the countervailing duty order. (
The period of review (“POR”) for which we are measuring subsidies is from January 1, 2001, through December 31, 2001.
Consistent with the ruling in
The third review of this order was subject to section 351.524(d)(2) of the Department's regulations. Under this regulation, the Department will use the AUL in the IRS tables as the allocation period, unless a party can show that the IRS tables do not reasonably reflect the company-specific AUL or the country-wide AUL for the industry. If a party can show that either of these time periods differs from the AUL in the IRS tables by one year or more, the Department will use the company-specific AUL or the country-wide AUL for the industry as the allocation period. In
In the fifth review, no respondent has contested the 12-year AUL in the IRS tables. Therefore, we are assigning a 12-year allocation period to non-recurring subsidies received in the POR, as well as any non-recurring subsidies received in prior years by companies that were not included in previous reviews.
Law 64/86 provided assistance to promote development in the Mezzogiorno (the south of Italy). Grants were awarded to companies constructing new plants or expanding or modernizing existing plants. Pasta companies were eligible for grants to expand existing plants but not to establish new plants because the market for pasta was deemed to be close to saturated. Grants were made only after a private credit institution, chosen by the applicant, made a positive assessment of the project. (Loans were also provided under Law 64/86;
De Cecco received grants under Law 64/86 which conferred a benefit during the POR. IAPC did not receive any grants under this program.
In
In
We used the grant methodology described in section 351.524(d) of the Department's regulations to calculate the countervailable subsidy from those grants that were allocated over time. We divided the benefit received by De Cecco in the POR by its total sales in the POR.
On this basis, we preliminarily determine the countervailable subsidy from the Law 64/86 industrial development grants to be 0.97 percent
In 1986, the European Union (“EU”) initiated an investigation of the GOI's regional subsidy practices. As a result of this investigation, the GOI changed the regions eligible for regional subsidies to include depressed areas in central and northern Italy in addition to the Mezzogiorno. After this change, the areas eligible for regional subsidies are the same as those classified as Objective 1, Objective 2, and Objective 5(b) areas by the EU.
Law 488/92 grants are made only after a preliminary examination by a bank authorized by the Ministry of Industry. On the basis of the findings of this preliminary examination, the Ministry of Industry ranks the companies applying for grants. The ranking is based on indicators such as the amount of capital the company will contribute from its own funds, the number of jobs created, regional priorities, etc. Grants are then made based on this ranking.
De Cecco received grants under Law 488/92 which conferred a benefit during the POR. IAPC did not receive any grants under this program.
Industrial development grants under Law 488/92 were found countervailable in
In
We used the grant methodology as described in section 351.524(d) of the Department's regulations to calculate the subsidy for those grants that were allocated over time. We divided the benefits received by De Cecco in the POR by its total sales in the POR.
On this basis, we preliminarily determine the countervailable subsidy from the Law 488/92 industrial development grants to be 0.40 percent
In addition to the industrial development grants discussed above, Law 64/86 also provided reduced rate industrial development loans with interest contributions paid by the GOI on loans taken by companies constructing new plants or expanding or modernizing existing plants in the Mezzogiorno. For the reasons discussed above, pasta companies were eligible for interest contributions to expand existing plants, but not to establish new plants. The interest rates on these loans were set at the reference rate with the GOI's interest contributions serving to reduce this rate. Although Law 64/86 was abrogated in 1992 (effective 1993), projects approved prior to 1993, were authorized to receive interest subsidies after 1993.
De Cecco had Law 64/86 industrial development loans outstanding during the POR. IAPC did not have any loans under this program.
In
In accordance with section 351.505(c)(2) of the Department's
On this basis, we preliminarily determine the countervailable subsidy from the Law 64/86 industrial development loans to be 0.41 percent
Law 85/95 created the
De Cecco had a Law 341/95 debt consolidation loan outstanding during the POR. IAPC did not have any loans under this program.
We preliminarily determine that the interest contributions on this loan confer a countervailable subsidy within the meaning of section 771(5) of the Act. They are a direct transfer of funds from the GOI providing a benefit in the amount of the interest contributions. Also, these interest contributions are regionally specific within the meaning of section 771(5A)(D)(iv) of the Act.
Because De Cecco anticipated receiving the interest contributions when it applied for the debt consolidation loan, we are calculating the amount of the subsidy as if this were a reduced interest loan (
On this basis, we preliminarily determine the countervailable subsidy from interest contributions under Law 341/95 to be 0.01 percent
Italian law allows companies, particularly those located in the Mezzogiorno, to use a variety of exemptions and reductions (“
The various laws identified as having provided sgravi benefits during the POR are: Law 183/76, Law 407/90, Law 863/84, Law 449/97, and Law 448/98. (Laws 449/97 and 448/98 are related and sometimes referred to jointly as “
In
In accordance with section 351.524(c) of the Department's regulations and consistent with our methodology in
On this basis, we preliminarily determine the countervailable subsidy from the
On January 1, 1998, the local income tax (ILOR) was replaced with a new regional tax, the IRAP, as a result of Legislative Decree 446 (December 15, 1997). Existing exemptions from the ILOR continued under IRAP. In particular, income from production facilities located in the Mezzogiorno was exempt from tax for ten years.
De Cecco claimed the IRAP tax exemption on its tax returns filed during the POR. IAPC did not claim any exemption under this program.
In
In accordance with sections 351.509(b) of the Department's regulations and our treatment of the ILOR tax exemption in
On this basis, we preliminarily determine the countervailable subsidy from the IRAP tax exemption to be 0.08 percent
The EU provides restitution payments to EU pasta exporters based on the durum wheat content of their exported pasta products. The program is designed to compensate pasta producers for the difference between EU prices and world market prices for durum wheat. Generally, under this program, a restitution payment is available to any EU exporter of pasta products, regardless of whether the pasta was made with imported wheat or wheat grown within the EU.
De Cecco received export restitution payments during the POR for shipments of pasta to the United States. IAPC did
In
In
On this basis, we preliminarily determine the countervailable subsidy from the export restitution program to be 0.01 percent
We examined the following programs and preliminarily determine that the producers and/or exporters of the subject merchandise under review did not apply for or receive benefits under these programs during the POR:
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for each producer/exporter covered by this administrative review. For the period January 1, 2001 through December 31, 2001, we preliminarily determine the net subsidy rates for producers/exporters under review to be those specified in the chart shown below. If the final results of this review remain the same as these preliminary results, the Department intends to instruct the U.S. Customs Service (“Customs”) to assess countervailing duties at these net subsidy rates. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of the final results of this review. The Department also intends to instruct Customs to collect cash deposits of estimated countervailing duties at these rates on the f.o.b. value of all shipments of the subject merchandise from the producers/exporters under review that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review.
The calculations will be disclosed to the interested parties in accordance with section 351.224(b) of the Department's regulations.
For companies that were not named in our notice initiating this administrative review (except Barilla G. e R. F.lli S.p.A. and Gruppo Agricoltura Sana S.r.L. which were excluded from the order in
For all non-reviewed firms, we will instruct Customs to collect cash deposits of estimated countervailing duties at the most recent company-specific or all others rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order are those established in the
Interested parties may submit written arguments in case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, limited to issues raised in case briefs, may be filed not later than five days after the date of filing the case briefs. Parties who submit briefs in this proceeding should provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).
Interested parties may request a hearing within 30 days after the date of publication of this notice. Any hearing, if requested, will be held two days after the scheduled date for submission of rebuttal briefs.
The Department will publish a notice of the final results of this administrative review within 120 days from the publication of these preliminary results.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of application and proposed authorization for incidental harassment of marine mammals; request for comments.
NMFS has received a request from The Boeing Company (Boeing) for an authorization to take small numbers of marine mammals by harassment incidental to harbor activities related to the Delta IV/Evolved Expendable Launch Vehicle (EELV) at south Vandenberg Air Force Base, CA (VAFB). Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to authorize Boeing to take, by harassment, small numbers of several species of pinnipeds at south VAFB beginning in May 2003.
Comments and information must be received no later than May 9, 2003.
Comments on the application should be addressed to Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225. Comments will not be accepted if submitted via e-mail or the Internet. A copy of the application (which includes the list of references used in this document) may be obtained by writing to this address or by telephoning one of the contacts listed here.
Kimberly Skrupky, (301) 713-2322, ext. 163 or Christina Fahy, (562) 980-4023.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Permission for incidental takings may be granted if NMFS finds that the taking will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Subsection 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. The MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which
(i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On January 28, 2003, NMFS received an application from Boeing requesting an authorization for the harassment of small numbers of Pacific harbor seals (
To accommodate the
A more detailed description of the work proposed for 2003 is contained in the application which is available upon request (
The marine mammal species likely to be harassed incidental to harbor activities at south VAFB are the Pacific harbor seal and the California sea lion. The most recent estimate of the Pacific harbor seal population in California is 30,293 seals (Forney et al., 2000). From 1979 to 1995, the California population increased at an estimated annual rate of 5.6 percent. The total population of harbor seals on VAFB is now estimated to be 1,040 (775 on south VAFB) based on sighting surveys and telemetry data (SRS Technologies, 2001).
The daily haul-out behavior of harbor seals along the south VAFB coastline is dependent on time of day rather than tide height. The highest number of seals haul-out at south VAFB between 1100 through 1700 hours. In addition, haul-out behavior at all sites seems to be influenced by environmental factors such as high swell, tide height, and wind. The combination of all three may prevent seals from hauling out at most sites. The number of seals hauled out at any site can vary greatly from day to day based on environmental conditions. Harbor seals occasionally haul out at a beach 76.2 m (250 ft) west of the south VAFB harbor and on rocks outside the harbor breakwater where Boeing will be conducting Delta Mariner operations, cargo loading, dredging activities, and reef enhancement activities. The maximum number of seals present during past dredging of the harbor was 43, with an average of 21 seals sighted per day. The harbor seal pupping site closest to south VAFB harbor is at Rocky Point, approximately 1.6 km (1 mi) north.
Several factors affect the seasonal haul-out behavior of harbor seals including environmental conditions, reproduction, and molting. Harbor seal numbers at VAFB begin to increase in March during the pupping season (March to June) as females spend more time on shore nursing pups. The number of hauled-out seals is at its highest during the molt which occurs from May through July. During the molting season, tagged harbor seals at VAFB increased their time spent on shore by 22.4 percent; however, all seals continued to make daily trips to sea to forage. Molting harbor seals entering the water because of a disturbance are not adversely affected in their ability to molt and do not endure thermoregulatory stress. During pupping and molting season, harbor seals at the south VAFB sites expand into haul-out areas that are not used the rest of the year. The number of seals hauled out begins to decrease in August after the molt is complete and reaches the lowest number in late fall and early winter.
During the wharf modification activity in June-July 2002, California sea lions were observed hauling out in small numbers. Although this is considered to be an unusual occurrence and is possibly related to fish schooling in the area, Boeing included sea lions in their request.
California sea lions range from British Columbia to Mexico. The minimum U.S. population estimate for California sea lions is 109,854 individuals. Since 1983, the population has grown at a rate of 5.0-6.2 percent annually. A 1985-1987 population survey indicated that most individuals on the Northern Channel Islands were on San Miguel Island, with the population ranging from 2,235 to over 17,000. The largest numbers of California sea lions in the VAFB vicinity occur at Lion Rock, 0.4 mi (0.64 km) southeast of Point Sal. This area is approximately 1.5 mi (2.41 km) north of the VAFB boundary. At least 100 sea lions can be observed during any season at this site. The Point Arguello beaches and the rocky ledges of South Rocky Point on south VAFB are haulout areas that may be used by California sea lions. The maximum number of sea lions seen hauling out during the recent wharf modification was six, daily counts ranging from 1 to 6 animals.
During the breeding season, most of California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to San Miguel Island and to the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente. Breeding season begins in mid-May, occurring within 10 days of arrival at the rookeries. Molting occurs gradually over several months in the late summer and fall. Because the molt is not catastrophic, the sea lions can enter the water to feed.
Male California sea lions migrate annually. In the spring they migrate southward to breeding rookeries in the Channel Islands and Mexico, then migrate northward in the late summer following breeding season. Females appear to remain near the breeding rookeries. The greatest population on land occurs in September and October during the post-breeding dispersal and although many of the sea lions, particularly juveniles and sub-adult and adult males, may move north away from the Channel Islands.
Small groups of sea lions have been observed heading south along the VAFB coastline each year in April and May. In August, large groups of 25 to over 300 sea lions can be seen migrating north. Hauled out juvenile sea lions, as well as harbor seals, can be observed along the South Base sites in July, August, and September. Starving and exhausted subadult sea lions are also fairly common on the central California beaches during July and August.
Other marine mammal species are known to occur infrequently along the south VAFB coast during certain times of the year and are unlikely to be harassed by Boeing's activities. These four species are: the northern elephant seal, the northern fur seal, Guadalupe fur seal (
Stock_Assessment_Program/sars.html. Please refer to those documents for information on these species.
Acoustic and visual stimuli generated by the use of heavy equipment during the
Pinnipeds sometimes show startle reactions when exposed to sudden brief sounds. An acoustic stimulus with sudden onset (such as a sonic boom)
According to the MMPA, if harbor activities disrupt the behavioral patterns of harbor seals, these activities would take marine mammals by Level B harassment. In general, if the received level of the noise stimulus exceeds both the background (ambient) noise level and the auditory threshold of the animals, and especially if the stimulus is novel to them, there may be a behavioral response. The probability and degree of response will also depend on the season, the group composition of the pinnipeds, and the type of activity in which they are engaged. Minor and brief responses, such as short-duration startle or alert reactions, are not likely to result in disruption of behavioral patterns, such as migration, nursing, breeding, feeding, or sheltering (i.e., Level B harassment) and would not cause serious injury or mortality to marine mammals.
On the other hand, startle and alert reactions accompanied by large-scale movements, such as stampedes into the water, could resul in injury of individuals and would be considered a take by harassment. In addition, such large-scale movements by dense aggregations of marine mammals or on pupping sites could potentially lead to takes by serious injury or death. However, there is no potential for large-scale movements leading to serious injury or mortality near the south VAFB harbor, because on average the number of harbor seals hauled out near the site on average is less than 30 and there is no pupping at nearby sites. The effects of the harbor activities are expected to be limited to short-term startle responses and localized behavioral changes.
For a further discussion of the anticipated effects of the planned activities on harbor seals in the area, please refer to the application and ENSR International's 2001 Final Environmental Assessment. Information in the application and referenced sources is preliminarily adopted by NMFS as the best information available on this subject.
Boeing estimates that a maximum of 43 harbor seals per day may be hauled out near the south VAFB harbor, with a daily average of 21 seals sighted when tidal conditions were favorable during previous dredging operations in the harbor. Considering the maximum and average number of seals hauled out per day, assuming that the seals may be seen more than once, and using a maximum total of 83 operating days in 2003-2004, NMFS estimates that 145 to 623 Pacific harbor seals may be subject to Level B harassment, as defined in 50 CFR 216.3.
During wharf modification activities, a maximum of six California sea lions were seen hauling out in a single day, averaging between one and six sea lions each day. Based on its own calculations, NMFS believes that a total of 100 California sea lions, 10 northern elephant seals, and 5 northern fur seals may be subject to Level B harassment, as defined in 50 CFR 216.3, because they may be in nearby waters.
Boeing anticipates no loss or modification to the habitat used by Pacific harbor seals or California sea lions that haul out near the south VAFB harbor. The harbor seal and sea lion haul-out sites near south VAFB harbor are not used as breeding, molting, or mating sites; therefore, it is not expected that the activities in the harbor will have any impact on the ability of Pacific harbor seals or California sea lions in the area to reproduce.
Boeing does anticipate unavoidable kelp removal during dredging. This habitat modification will not affect the marine mammal habitat. However, Boeing will mitigate for the removal of kelp habitat by placing 150 tons of rocky substrate in a sandy area between the breakwater and the mooring dolphins to enhance an existing artificial reef. This type of mitigation was implemented by the Army Corps of Engineers following the 1984 and 1989 dredging. A lush kelp bed adjacent to the sandy area has developed from the efforts. The substrate will consist of approximately 150 sharp-faced boulders, each with a diameter of about 2 ft (0.61 m) and each weighing about one ton. The boulders will be brought in by truck from an off-site quarry and loaded by crane onto a small barge at the wharf. The barge is towed by a tugboat to a location along the mooring dolphins from which a small barge-mounted crane can place them into the sandy area. Boeing plans to perform the reef enhancement in conjunction with the next maintenance dredging event in order to minimize cost and disturbances to animals. Noise will be generated by the trucks delivering the boulders to the harbor and during the operation of unloading the boulders onto the barges and into the water.
There are no subsistence uses for Pacific harbor seals in California waters, and, thus, there are no anticipated effects on subsistence needs.
To reduce the potential for disturbance from visual and acoustic stimuli associated with the activities Boeing will undertake the following marine mammal mitigating measures:
(1) If activities occur during nighttime hours, lighting will be turned on before dusk and left on the entire night to avoid startling harbor seals at night.
(2) Activities should be initiated before dusk.
(3) Construction noises must be kept constant (i.e., not interrupted by periods of quiet in excess of 30 minutes) while harbor seals are present.
(4) If activities cease for longer than 30 minutes and harbor seals are in the area, start-up of activities will include a gradual increase in noise levels.
(5) A qualified marine mammal observer will visually monitor the harbor seals on the beach adjacent to the harbor and on rocks for any flushing or other behaviors as a result of Boeing's activities. If flushing results, then the activities suspected of causing the seals to enter the water will be delayed until the seals leave the area.
(6) The
(7) As alternate dredge methods are explored, the dredge contractor may introduce quieter techniques and equipment.
As part of its 2002 application, Boeing provided a proposed monitoring plan for assessing impacts to harbor seals from the activities at south VAFB harbor and for determining when mitigation measures should be employed.
A NMFS-approved and VAFB-designated biologically trained observer will monitor the area for pinnipeds during all harbor activities. During nighttime activities, the harbor area will be illuminated, and the monitor will use a night vision scope. Monitoring activities will consist of:
(1) Conducting baseline observation of pinnipeds in the project area prior to initiating project activities.
(2) Conducting and recording observations on pinnipeds in the vicinity of the harbor for the duration of the activity occurring when tides are low enough for pinnipeds to haul out (2 ft, 0.61 m, or less).
(3) Conducting post-construction observations of pinniped haul-outs in the project area to determine whether animals disturbed by the project activities return to the haul-out.
Boeing will notify NMFS 2 weeks prior to initiation of each activity. After each activity is completed, Boeing will provide a report to NMFS within 90 days. This report will provide dates and locations of specific activities, details of seal behavioral observations, and estimates of the amount and nature of all takes of seals by harassment or in other ways. In addition, the report will include information on the weather, the tidal state, the horizontal visibility, and the composition (species, gender, and age class) and locations of haul-out group(s). In the unanticipated event that any cases of pinniped injury or mortality are judged to result from these activities, this will be reported to NMFS immediately.
Under section 7 of the Endangered Species Act, NMFS has begun consultation on the proposed issuance of an IHA. Consultation will be concluded prior to the issuance of an IHA.
Although sea otters are not within the jurisdiction of NMFS, VAFB formally consulted with U.S. Fish and Wildlife Service (FWS) in 1998 on the possible take of southern sea otters during Boeing's harbor activities at south VAFB. A Biological Opinion was issued in August 2001. Southern sea otters were discussed in these documents and FWS recognized that Boeing will restore sea otter habitat (i.e., kelp beds) in the vicinity of the harbor to replace kelp destroyed during dredging. In addition, the FWS noting that VAFB has committed to a southern sea otter monitoring program designed to detect the presence and possible disturbance at the VAFB harbor area during dredging activities.
In accordance with section 6.01 of the National Oceanic and Atmospheric Administration (NOAA) Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999), NMFS has determined based on the content and analysis of Boeing's request for an IHA, and the Final EA for Harbor Activities Associated with the Delta IV Program at VAFB (ENSRI, 2001) that the proposed issuance of this IHA to Boeing by NMFS will not individually or cumulatively result in a significant impact on the quality of the human environment as defined in 40 CFR 1508.27. Impacts are not expected to be outside the scope of that EA. Therefore, this action meets the definition of a “Categorical Exclusion” as defined under NOAA Administrative Order 216-6 and is exempted from further environmental review.
NMFS proposes to issue an IHA to Boeing for harbor activities related to the Delta IV/EELV to take place at south VAFB over a 1-year period. The proposal to issue this IHA is contingent upon adherence upon the previously mentioned mitigation, monitoring, and reporting requirements. NMFS has preliminarily determined that the impact of harbor activities related to the Delta IV/EELV at VAFB, including: transport vessel operations, cargo movement activities, harbor maintenance dredging, and kelp habitat mitigation will result in the harassment of only small numbers of Pacific harbor seals and California sea lions; would have no more negligible impact on these marine mammal stocks,; and would not have an unmitigable adverse impact on the availability of marine mammal stocks for subsistence uses. While behavioral modifications may be made by these species to avoid the resultant acoustic and visual stimuli, there is no potential for large-scale movements, such as stampedes, since harbor seals and sea lions haul out in such small numbers near the site (maximum number of harbor seals hauled out in one day estimated at 43 seals, averaging at 21 seals per day, maximum number of sea lions hauled out in one day is estimated at six sea lions). The effects of the harbor activities are expected to be limited to short-term and localized behavioral changes. Therefore, NMFS preliminarily concludes that the effects of the planned demolition activities will have no more than a negligible impact on pinnipeds.
Due to the localized nature of these activities, the number of marine mammals potentially taken by harassment are estimated to be small. In addition, no take by injury and/or death is anticipated, and the potential for temporary or permanent hearing impairment is unlikely given the low noise levels and will be entirely avoided through the incorporation of appropriate mitigation measures. No rookeries, mating grounds, areas of concentrated feeding, or other areas of special significance for marine mammals occur within or near south VAFB harbor.
NMFS requests interested persons to submit comments and information concerning this request (
National Telecommunications and Information Administration (NTIA), Commerce.
Notice of closing date for solicitation of PEACESAT applications.
The National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce, announces the solicitation of applications for a grant for the Pan-Pacific Education and Communications Experiments by Satellite (PEACESAT) Program. Projects funded pursuant to this Notice are intended to support the PEACESAT Program's acquisition of satellite communications to service Pacific Basin communities and to manage the operations of this network. Applications for the PEACESAT Program grant will compete for funds from the Public Broadcasting, Facilities, Planning and Construction Funds account. The
Applications for the PEACESAT Program grant must be received on or before 5 p.m. EDT on May 9, 2003. Applicants sending applications by the United States Postal Service or commercial delivery services must ensure that the carrier will be able to guarantee delivery of the application by the closing date and time. NTIA will not accept mail delivery of applications posted on the closing date or later and received after the above deadline. However, if an application is received after the closing date due to carrier error, when the carrier accepted the package with a guarantee for delivery by the closing date, NTIA will, upon receipt of proper documentation, consider the application as having been received by the deadline.
To submit completed applications, or send any other correspondence, write to: NTIA/PTFP, Room H-4625, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230. Applicants submitting applications by hand delivery are notified that, due to security procedures in the Department of Commerce, all packages must be cleared by the Department's security office. The security office is located in Room 1874, located at Entrance No. 10 on the 15th St. NW. side of the building.
William Cooperman, Director, Public Broadcasting Division, telephone: (202) 482-5802; fax: (202) 482-2156.
Funding for the PEACESAT Program is provided pursuant to Public Law 108-7, “The Consolidated Appropriations Resolution, 2003,” and Public Law 106-113, “The Consolidated Appropriations Act, Fiscal Year 2000.” Public Law 106-113 provides “That, hereafter, notwithstanding any other provision of law, the Pan-Pacific Education and Communications Experiments by Satellite (PEACESAT) Program is eligible to compete for Public Broadcasting Facilities, Planning and Construction funds.” The PEACESAT Program was authorized under Pub. L. 100-584 (102 Stat. 2970) and also Pub. L. 101-555 (104 Stat. 2758) to acquire satellite communications services to provide educational, medical, and cultural needs of Pacific Basin communities. The PEACESAT Program has been operational since 1971 and has received funding from NTIA for support of the project since 1988.
Public Law 108-7 appropriated $43.5 million for this account to be awarded for Public Telecommunications Facilities Program (PTFP) grants and for PEACESAT Program grants. Solicitation notices for the PTFP Program were published in the
NTIA requests that each applicant for a PEACESAT Program grant supply one (1) original signed application and five (5) copies, unless doing so would present a financial hardship, in which case the applicant may submit one(1) original and two (2) copies of the application. The application form consists of the Standard Form 424 Application for Federal Assistance; Standard Form 424A Budget Information-Non-Construction Programs; Standard Form 424 B, Assurances; Standard Form CD-511 Certification; and Standard Form LLL, Disclosure of Lobbying Activities (if applicable). These requirements are subject to the Paperwork Reduction Act and have been approved by the Office of Management and Budget under control numbers 0348-0043, 0348-0044, 0348-0040 and 0348-0046.
Eligible applicants will include any for-profit or non-profit organization, public or private entity, other than an agency or division of the Federal government. Individuals are not eligible to apply for the PEACESAT Program funds.
Grant recipients under this program will not be required to provide matching funds toward the total project cost.
The costs allowable under this Notice are not subject to the limitation on costs contained in the October 17, 2002 or March 5, 2003 Notices regarding the PTFP Program.
11.550 Public Telecommunications Facilities Program.
Public Law Number 108-7 was enacted February 20, 2003. Public Law No. 108-7 appropriated funds to the Public Broadcasting, Facilities, Planning and Construction Funds account. Pursuant to Public Law 106-113 the Pan-Pacific Education and Communications Experiments by Satellite (PEACESAT) Program can compete for funds from the Public Broadcasting, Facilities, Planning and Construction Funds account. Funds appropriated to the Public Broadcasting, Facilities, Planning and Construction Funds account do not carry fiscal year limitations. A notice published on March 16, 1999 set forth the scope of the project and eligible costs, and a description of the evaluation and selection process for applications for the PEACESAT Program. Since funds for the Public Broadcasting, Facilities, Planning and Construction Funds account are available without fiscal year limitations, the administrative requirements; scope of project and eligible costs criteria; and evaluation and selection process criteria set forth in the March 16, 1999 notice apply to the 1999 PEACESAT program and to all subsequent years. A copy of the March 16,1999 Notice is available to potential applicants from NTIA at the address listed in the Address section and is also available on the Internet at
Applicants for grants for the PEACESAT Program must file their applications on or before May 9, 2003. NTIA anticipates making the grant award by September 30, 2003. NTIA shall not be liable for any proposal preparation costs.
Any project awarded pursuant to this notice will be for a one-year period.
The Department of Commerce Pre-Award Notification of Requirements for Grants and Cooperative Agreements
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA),unless that collection displays a currently valid Office of Management and Budget control number.
It has been determined that this notice is “not significant” for the purpose of Executive Order 12866.
It has been determined that this notice does not contain policies with Federalism implications as that term is defined in EO 13132.
Because notice and comment are not required under 5 U.S.C. 553, or any other law, for this notice related to public property, loans, grants, benefits or contracts, 5 U.S.C. 553(a), a Regulatory Flexibility Analysis is not required and has not been prepared for this notice. 5 U.S.C. 601
Pub. L. 108-7, “The Consolidated Appropriations Resolution, 2003,” and Public Law 106-113, “The Consolidated Appropriations Act, Fiscal Year 2000.”
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
United States Patent and Trademark Office (USPTO).
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of Data Architecture and Services, Data Administration Division, (703) 308-7400, USPTO, Suite 310, 2231 Crystal Drive, Washington, DC 20231, or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before May 9, 2003 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by May 9, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by May 9, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Office of the Secretary, DoD.
Notice.
Under 45 CFR part 164, “Standards for Privacy of Individually Identifiable Health Information” and DoD 6025.18-R, “DoD Health Information Privacy Regulation” provisions are made to allow appropriate uses and disclosures of protected health information concerning members of the armed forces to assure the proper execution of the military mission, provided that the Department of Defense publishes in the
This notice is effective April 14, 2003.
CDR Sam Jenkins, Health Information Privacy Officer, TRICARE Management Activity, Skyline 5, Suite 810, 5111 Leesburg Pike, Falls Church, Virginia 22041-3206, (703) 681-5611, extension 6824.
In accordance with 45 CFR 164.512(K)(1)(i), the Department of Defense has established in DoD 6025.18-R, paragraph C7.11.1, the following provisions.
1.
2.
2.1. All Commanders who exercise authority over an individual who is a member of the Armed Forces, or other person designated by such a Commander to receive protected health information in order to carry out an activity under the authority of the Commander.
2.2 The Secretary of Defense, the Secretary of the Military Department responsible for the Armed Force for which the individual is a member, or the Secretary of Homeland Security when a member of the Coast Guard when it is not operating as a service in the Department of the Navy.
2.3. Any official delegated authority by a Secretary listed in subparagraph 2.2 to take an action designed to ensure the proper execution of the military mission.
3.
3.1. To determine the member's fitness for duty, including but not limited to the member's compliance with standards and all activities carried out under the authority of DoD Directive 1308.1, “DoD Physical Fitness and Body Fat Program,” July 20, 1995, DoD Instruction 1332.38, “Physical Disability Evaluation,” November 14, 1996, DoD Directive 5210.42, “Nuclear Weapons Personnel Reliability Program (PRP),” January 8, 2001, and similar requirements.
3.2. To determine the member's fitness to perform any particular
3.3. To carry our activities under the authority of DoD Directive 6490.2, “Joint Medical Surveillance,” August 30, 1997.
3.4. To report on casualties in any military operation or activity in accordance with applicable military regulations or procedures.
3.5. To carry out any other activity necessary to the proper execution of the mission of the Armed Forces.
Office of the Secretary, DoD.
Notice to Add Systems of Records.
The Office of the Secretary of Defense proposes to add a system of records notice to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on May 9, 2003 unless comments are received that would result in a contrary determination.
Send comments to OSD Privacy Act Coordinator, Records Management Section, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Mr. Dan Cragg at (703) 601-4722.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted on April 1, 2003, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Biographies of OSD Officials.
Office of the Secretary of Defense, Chief Information Office, ATTN: Biographies of OSD Officials, 1950 Defense Pentagon, Room BG849, Washington, DC 203301-1950.
Military and civilian personnel currently occupying professional positions within the offices of the Office of the Secretary of Defense (OSD). A professional position is one occupied by a civilian in the grade of GS 13 and above or a military officer in the grade of major/lieutenant commander and above; employees in developmental programs such as Presidential Management Interns and Defense Fellows; and employees from other organizations serving as detailees and serving under intergovernmental personnel act agreements who are integrated within the OSD workforce.
Basic biographical information on individual OSD staff to include full name of the individual; rank/grade; title; organization/office; current assignments within OSD (starting with present and working backwards to cover all periods of assignment within OSD); past experiences (a brief history of other related past experiences); and education (optional). A photograph of the individual is optional.
10 U.S.C. 131, Office of the Secretary of Defense.
To provide the Secretary and Deputy Secretary of Defense, as well as the OSD Principal Staff Assistants (PSA), with immediate access to biographical information on the OSD staff personnel. PSAs will only have access to those biographies for personnel who are employed, assigned, or detailed to their respective offices.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ set forth at the beginning of OSD's compilation of systems of records notices applies to this system.
Records are stored on electronic media.
Retrieved alphabetically by the individual's full name.
Records are maintained in a secure, limited access or monitored area. Physical entry by unauthorized persons is restricted by the use of locks, guards, or administrative procedures. Access to personal information is limited to those who require the records to perform their official duties. All personnel whose official duties require access to the information are trained in the proper safeguarding and use of the information.
Records are deleted when the individual concerned departs the OSD staff.
Chief, Personnel Systems and Evaluation Division, Washington Headquarters Services, Personnel and Security Directorate, ATTN: Biographies of OSD Officials, 5001 Eisenhower Avenue, Room 2N36, Alexandria, VA 22333-0001.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the Chief, Personnel Systems and Evaluation Division, Washington Headquarters Services, Personnel and Security Directorate, ATTN: Biographies of OSD Officials, 5001 Eisenhower Avenue, Room 2N36, Alexandria, VA 22333-0001.
Requests for information should contain individual's full name.
Individuals seeking to access information about them selves
Requests for information should contain individual's full name.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
The source of record is from the individuals concerned.
None.
Department of the Navy, DOD.
Notice.
The inventions listed below are assigned to the United States Government as represented by the Secretary of the Navy and are available for licensing by the Department of the Navy. Patent application 10/342,649: HAZMAT Platform; a portable, re-usable, elevated platform that provides a large, non-slip, grated surface on which an individual wearing a fully-encapsulated hazardous materials suit may stand to ensure thorough on-site decontamination. The elevated design with a top grate and two folding/ pivoting support leg assemblies allows for the collection of the hazardous material runoff in a containment vessel deployed underneath. It is made of impervious, strong, lightweight material to prevent absorption of any hazardous chemicals and to provide sufficient structural strength while keeping its overall weight reasonable. The design is simple and straightforward and can be economically manufactured. Patent application 10/314,484: Hexagonal Ball Socket Driver Bit; a ball socket driver bit that includes a ball portion and a shank portion. The ball portion cross section perpendicular to the bit axis is hexagonal. The shank portion has a cross section smaller than the ball portion. The first portion end is adapted to axially enter a socket head screw. The ball portion is adapted to enter a socket such that when turning the socket the socket head screw can be turned when the socket axis is not axially aligned with the screw axis.
Requests for copies of the invention cited should be directed to the Naval Surface Warfare Center, Crane Div, Code OCF, Bldg 64, 300 Highway 361, Crane, IN 47522-5001.
Mr. Darrell Boggess, Naval Surface Warfare Center, Crane Div, Code OCF, Bldg 64, 300 Highway 361, Crane, IN 47522-5001, telephone (812) 854-1130. To download an application for license, see:
35 U.S.C. 207, 37 CFR part 404.
Department of Education.
The Leader, Regulatory Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before May 9, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Acting Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address
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 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,
Responses: 2,000.
Burden Hours: 10,000.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grants Information Collections (1890-0001). Therefore, this 30-day public comment notice will be the only public comment notice published for this information collection.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at (202) 708-9266 or via his e-mail address
Department of Education.
The Leader, Regulatory 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 June 9, 2003.
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 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,
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: 80;
Burden Hours: 4,880.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at (202) 708-6287 or via her e-mail address Sheila.Carey@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
The Leader, Regulatory 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 June 9, 2003.
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 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,
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
Responses: 115.
Burden Hours: 690.
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 Joseph Schubart at (202) 708-9266. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Office of Fossil Energy, DOE.
Notice of application.
Direct Commodities Trading Inc. (DCT) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before May 9, 2003.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Import/Export (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-287-5736).
Ellen Russell (Program Office) 202-586-9624 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On March 26, 2003, the Office of Fossil Energy (FE) of the Department of Energy (DOE) received an application from DCT to transmit electric energy from the United States to Canada. DCT, a Canadian corporation, does not own or control any electric power generation or transmission facilities and does not have a franchised electric power service area.
DCT will purchase the power to be exported from the New York Independent System Operator and transmit it on its own behalf to Canada over the existing international transmission facilities currently owned by the New York Power Authority and Niagara Mohawk Power Corporation. The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by DCT, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the DCT application to export electric energy to Canada should be clearly marked with Docket EA-278. Additional copies are to be filed directly with Jean-Jacques Taza, DCT Inc., 4821 Park Avenue, Suite 6, Montreal, Quebec, Canada H2V 4E7.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy home page at
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice.
In this notice, the Department of Energy (DOE or Department) is forecasting the representative average unit costs of five residential energy sources for the year 2003 persuant to the Energy Policy and Conservation Act. The five sources are electricity, natural gas, No. 2 heating oil, propane, and kerosene.
The representative average unit costs of energy contained
Brian Card, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Forrestal Building, Mail Station EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. (202) 586-9228.
Francine Pinto, Esq., U.S. Department of Energy, Office of General Counsel, Forrestal Building, Mail Station GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103. (202) 586-9507.
Section 323 of the Energy Policy and Conservation Act (Act) (42 U.S.C. 6291—6309) requires that DOE prescribe test procedures for the determination of the estimated annual operating costs or other measures of energy consumption for certain consumer products specified in the Act (42 U.S.C. 6293). These test procedures are found in 10 CFR part 430, subpart B.
Section 323(b) of the Act requires that the estimated annual operating costs of a covered product be calculated from measurements of energy use in a representative average use cycle or period of use and from representative average unit costs of the energy needed to operate such product during such cycle (42 U.S.C. 6293(b)). The section further requires that DOE provide information to manufacturers regarding the representative average unit costs of energy (42 U.S.C. 6293(b)(4)). This cost information should be used by manufacturers to meet their obligations under section 323(c) of the Act. Most notably, these costs are used to comply with Federal Trade Commission (FTC) requirements for labeling. Manufacturers are required to use the revised DOE representative average unit costs when the FTC publishes new ranges of comparability for specific covered products, 16 CFR part 305. Interested parties can also find information covering the FTC labeling requirements at
The Department last published representative average unit costs of residential energy for use in the Energy Conservation Program for Consumer Products Other Than Automobiles on April 24, 2002 (67 FR 20104). Effective May 9, 2003, the cost figures published on April 24, 2002, will be superseded by the cost figures set forth in this notice.
The Department's Energy Information Administration (EIA) has developed the 2003 representative average unit after-tax costs found in this notice. The representative average unit after-tax costs for electricity, natural gas, No. 2 heating oil, and propane are based on simulations used to produce the November, 2002, EIA
The 2003 representative average unit costs pursuant to section 323(b)(4) of the Act are set forth in Table 1, and will become effective May 9, 2003. They will remain in effect until further notice.
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be tranferred to EPA's Office of Water and its contractor, ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., in accordance with 40 CFR 2.307(h)(3), and 2.308(h)(2). ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., have been awarded a contract to perform work for EPA's Office of Water. Access to this information will enable ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., to fulfill the obligations of the contract.
EPA's Office of Water and its contractor, ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., will be given access to this information on or before April 21, 2003.
Erik R. Johnson, FIFRA Security Officer, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-7248; e-mail address:
This action applies to the public in general. As such, 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
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA dockets. You may use EPA dockets at
Under Contract No. 68-C0-2009, ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., will perform the following tasks:
1.
2.
3.
OPP has determined that access by ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., to information on all pesticide chemicals is necessary for the performance of this contract.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA under sections 3, 4, 6, and 7 of FIFRA and under sections 408 and 409 of FFDCA.
In accordance with the requirements of 40 CFR, 2.307(h)(3), this contract with ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., prohibits use of the information for any purpose not specified in the contract; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the subcontractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the FIFRA Information Security Manual. In addition, ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., are required to submit for EPA approval a security plan under which any CBI will be secured and protected against unauthorized release or compromise. No information will be provided to ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., until the requirements in this document have been fully satisfied. Records of information provided under this contract will be maintained by EPA Project Officers for this contract. All information supplied to, ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., by EPA for use in connection with this contract will be returned to EPA when ICF and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., have completed their work.
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be tranferred to Dynamac Corporation in accordance with 40 CFR 2.307(h)(3) and 2.308(i)(2). Dynamac Corporation has been awarded multiple contracts to perform work for OPP, and access to this information will enable Dynamac Corporation to fulfill the obligations of the contracts.
Dynamac Corporation will be given access to this information on or before April 14, 2003.
Erik R. Johnson, FIFRA Security Officer, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-7248; e-mail address:
This action applies to the public in general. As such, 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
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
1. Under Contract No. 68-W0-0070, the contract shall require the contractor to research, evaluate, and analyze data and information pertaining to the ecotoxicity of pesticides and concentrations of pesticides in the environment—including soil, water, wildlife food items such as foliage and insects, and to complete ecological risk assessments as specified in the Statement of Work. Assessments completed by the contractor shall analyze all valid and adequate data, including data studies retrieved from the open literature, as well as any ecological toxicity documents provided by registrants or other governmental bodies and present in detailed summary of the results.
2. Under Contract No. 68-W0-0171, this contract will provide support primarily in the area of review and evaluation of available data pertaining to the chemistry and fate of pesticides in the environment (including the evaluation of environmental monitoring data), and, secondarily, the assessment of pesticide fate and transport in the environment. It may require the contractor, on occasion, to conduct research to understand science issues, support scientific workshops, conduct analyses of issues and provide science policy options. EPA's Environmental Fate and Evaluation Division (EFED) will make available to the contractor the data, studies, and information which is to be reviewed.
These contracts involve no subcontractors.
OPP has determined that the contracts described in this document involve work that is being conducted in connection with FIFRA, in that pesticide chemicals will be the subject of certain evaluations to be made under the contracts. These evaluations may be used in subsequent regulatory decisions under FIFRA.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA under sections 3, 4, 6, and 7 of FIFRA and under sections 408 and 409 of FFDCA.
In accordance with the requirements of 40 CFR 2.307(h)(3), the contracts with Dynamac Corporation, prohibits use of the information for any purpose not specified in these contracts; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the contractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the FIFRA Information Security Manual. In addition, Dynamac Corporation is required to submit for EPA approval a security plan under which any CBI will be secured and protected against unauthorized release or compromise. No information will be provided to Dynamac Corporation until the requirements in this document have been fully satisfied. Records of information provided to Dynamac Corporation will be maintained by EPA Project Officers for these contracts. All information supplied to Dynamac Corporation by EPA for use in connection with these contracts will be returned to EPA when Dynamac Corporation has completed its work.
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency.
Notice of peer-review workshop and public meeting.
The U.S. Environmental Protection Agency (EPA) is announcing a peer review workshop to facilitate preparation of the Environmental Effects Chapter to be included in a revised version of the EPA document Air Quality Criteria for Ozone and Related Photochemical Oxidants (Ozone Criteria Document, EPA 600/P-93/004aF-cF). Draft sections for this chapter, prepared (with the assistance of qualified scientists under contract) by the EPA's National Center for Environmental Assessment-Research Triangle Park Division (NCEA-RTP) within EPA's Office of Research and Development, will be reviewed at the Workshop. NCEA will then consider the peer-review advice in revising the sections and incorporating them into the overall Environmental Effects Chapter of the First External Review Draft Ozone Criteria Document to be released later for public comment.
The peer-review workshop will begin on Tuesday, April 22, 2003, at 9 a.m., and end on Wednesday, April 23, 2003, at 5 p.m. Members of the public are invited to attend as observers.
The peer-review workshop will be held at the Sheraton Imperial Hotel, 4700 Emperor Boulevard, Durham, North Carolina 27703. Sleeping room reservations may be made at 919-541-5050. Logistics for the workshop are being arranged by Science Applications International Corporation (SAIC), an EPA contractor. To attend the workshop, register by Monday, April 21, 2003, by calling SAIC at 703-318-4678 or by sending a facsimile to 703-736-0826. You can also register in advance via e-mail at
For workshop information and logistics, contact SAIC at: telephone: 703-318-4678; facsimile: 703-736-0826. For technical information, contact Dr. Robert W. Elias, U.S. EPA, NCEA-RTP, B243-01, Research Triangle Park, NC 27711; telephone: 919-541-4167; facsimile: 919-541-1818; or e-mail:
As discussed in a previous call for information (65 FR 57810, September 26, 2000), EPA is undertaking to review and, where appropriate, update and revise the Ozone Criteria Document last issued in July 1996. Pursuant to section 109 of the Clean Air Act, 42 U.S.C. 740, EPA periodically reviews, and when appropriate, updates and revises, the air quality criteria for ozone published under Section 108 of the Act, 42 U.S.C. 7408. EPA then considers these air quality criteria when it periodically reviews the National Ambient Air Quality Standards (“NAAQS”) for ozone.
Interested parties are invited to assist the EPA in further developing and refining the scientific information base by identifying and submitting pertinent new information on potential health and environmental effects of ozone. In order to be considered for possible inclusion in the criteria document, submitted information should be published or be accepted for publication in a peer-reviewed scientific journal. Such information should be provided to Dr. Robert W. Elias via the above-noted contact information.
Environmental Protection Agency.
Notice.
Under section 10(a)(2) of Public Law 92-423, “The Federal Advisory Committee Act,” notice is hereby given of a meeting of the National Drinking Water Advisory Council (NDWAC), established under the Safe Drinking Water Act, as amended (42 U.S.C. 300f
The Council meeting will be held on May 14, 2003, from 8:30 a.m. until 5:30 p.m. and May 15, 2003, from 8:30 a.m. until 1 p.m., Eastern Standard Time.
The meeting will be held at The Washington Terrace Hotel located at 1515 Rhode Island Ave., NW., Washington, DC and is open to the public.
Members of the public that would like to attend the meeting, present an oral statement, or submit a written statement, should contact Brenda Johnson, Designated Federal Officer, National Drinking Water Advisory Council, by phone at (202) 564-3791, by e-mail to
The Council encourages the public's input and will allocate one hour during the meeting for this purpose. Oral statements will be limited to five minutes, and it is preferred that only one person present the statement on behalf of a group or organization. To ensure adequate time for public involvement, individuals or organizations interested in presenting an oral statement should notify the Council's Designated Federal Officer by telephone at (202) 564-3791, no later than May 2, 2003. Any person who wishes to file a written statement can do so before or after a Council meeting. Written statements received no later than May 2, 2003 will be distributed to all members of the Council before any final discussion or vote is completed. Any statements received after the meeting will become part of the permanent meeting file and will be forwarded to the Council members for their information.
Any person needing special accommodations at this meeting, including wheelchair access, please contact Brenda Johnson (see
Environmental Protection Agency (EPA)
Notice of a Cancellation Order.
This notice announces that a cancellation order was signed on March 17, 2003, in response to the use terminations and cancellations voluntarily requested by the registrants of wood preservative pesticide products containing Chromated Copper Arsenate (CCA) pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. In addition to stating the Agency's response to the requests for cancellation of certain CCA products and amendments to terminate certain uses of other CCA products, this notice also addresses the considerable number of comments received in response to the Agency's requests for public comments on the above stated requests. In the cancellation order, the Agency granted certain of the aforementioned requests and did not take any action regarding certain other elements of the requests. Any sale, distribution, or use of affected products listed in this notice will only be permitted if such distribution, sale, or use is consistent with terms and conditions set forth in the cancellation order.
The effective dates of cancellation are as follows:(1) For affected product registrations—March 17, 2003 (2) For affected product registrations amended to delete terminated uses—May 16, 2003.
By mail: Bonaventure Akinlosotu, Office of Pesticide Programs (7510C), Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, DC 20460. Office location for commercial courier delivery, telephone number and e-mail address: Rm. 308, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA 22202, (703) 605-0653; e-mail:
This announcement consists of five parts. The first part contains general information. The second part provides background, and summarizes the use terminations and product cancellations requested by the CCA product registrants. The third part summarizes the comments received in response to the Agency's request for public comments on the aforementioned registrants' requests, and provides the Agency's response to the comments. The fourth part provides a summary of the Agency's decision on the voluntary cancellation and use termination requests. The fifth part sets forth the existing stocks provisions that the Agency authorized in the cancellation order.
This action is directed to the public in general. You may be potentially affected by this action if you manufacture, sell, distribute, or use CCA products. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule, for purposes of 5 U.S.C. 804(3). 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
1.
2.
On February 22, 2002, the Agency announced the receipt of requests from the registrants of wood preservative
EPA received requests from four registrants (Table 1 of this unit) to cancel 2 products (Table 2 of this unit), and to amend 17 other affected end-use and manufacturing-use registrations to terminate all uses of such products (Table 3 of this unit) with the exception of the treatment of wood products that fall under the American Wood-Preservers' Association (AWPA) standards (based on the 2001 edition of the AWPA Standards) listed in the text of the requested label amendment stated below.
For affected manufacturing-use products, the label amendments were proposed to read as follows:
Effective December 31, 2003, this product may only be used (1) for formulation of the following end-use wood preservative products: ammoniacal copper zinc arsenate (ACZA) or chromated copper arsenate (CCA) labeled in accordance with the Directions for Use shown below, or (2) by persons other than the registrant, in combination with one or more other products to make: ACZA wood preservative; or CCA wood preservative that is used in accordance with the Directions for Use shown below.
Effective December 31, 2003, this product may only be used for preservative treatment of the following categories of forest products and in accordance with the respective cited standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers Association Standards: Lumber and Timber for Salt Water Use Only (C2), Piles (C3), Poles (C4), Plywood (C9), Wood for Highway Construction (C14), Poles, Piles and Posts Used as Structural Members on Farms, and Plywood Used on Farms (C16), Wood for Marine Construction (C18), Round Poles and Posts Used in Building Construction (C23), Sawn Timber Used To Support Residential and Commercial Structures (C24), Sawn Crossarms (C25), Structural Glued Laminated Members and Laminations Before Gluing (C28), Structural Composite Lumber (C33), and Shakes and Shingles (C34). Forest products treated with this product may only be sold or distributed for uses within the AWPA Commodity Standards under which the treatment occurred.
For affected end-use products, the label amendments were proposed to read as follows:
Effective December 31, 2003, this product may only be used for preservative treatment of the following categories of forest products and in accordance with the respective cited standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers Association Standards: Lumber and Timber for Salt Water Use Only (C2), Piles (C3), Poles (C4), Plywood (C9), Wood for Highway Construction (C14), Poles, Piles and Posts Used as Structural Members on Farms, and Plywood Used on Farms (C16), Wood for Marine Construction (C18), Round Poles and Posts Used in Building Construction (C23), Sawn Timber Used To Support Residential and Commercial Structures (C24), Sawn Crossarms (C25), Structural Glued Laminated Members and Laminations Before Gluing (C28), Structural Composite Lumber (C33), and Shakes and Shingles (C34). Forest products treated with this product may only be sold or distributed for uses within the AWPA Commodity Standards under which the treatment occurred.
In addition, the registrants requested that EPA allow use of the previous (unamended) labels for a period of 60 calendar days from the date on which the particular affected registrant receives EPA's approval of the amendment(s) to terminate use(s), and that EPA allow a further amendment by notification on or before December 1, 2003, to (1) delete the use directions in effect prior to these amendments, and (2) to delete the preface phrase “Effective December 31, 2003,” from the amended labels such that the statement begins by reading, “This product may only be used for preservative treatment of the following categories of forest products and in accordance with the respective cited standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers' Association Standards* * *.” Furthermore, the registrants stated in their letters that they would neither amend nor withdraw their requests for cancellation/use terminations before EPA acts on them. Additionally, the registrants will notify their customers of the amended labels by certified mail after EPA acts on the requests.
The Agency issued a notice of receipt of the aforementioned requests along with a solicitation for public comments (February 22, 2002), followed by another notice to extend the comment period until April 9, 2002 (March 22, 2002). Approximately 6,700 comments were submitted by the wood preservative industry, the chromium industry, the lumber industry, the agricultural industry, Kentucky and Texas State government officials, federal government officials, environmental groups, businesses and private citizens of Corpus Christi, Texas, as well as from others. Based on the nature of the concern(s) expressed, the comments were grouped into four major categories: (1) business and economic concerns from the Agricultural Community and Wood Treatment Industry, (2) concerns with the possible adverse economic impact on the Chromium Industry and Corpus Christi, Texas, (3) concerns raised by Environmental Groups, and (4) other significant, pertinent comments.
Generally, the purpose of soliciting comments pursuant to Section 6(f) of FIFRA is to give an opportunity to comment to those individuals or businesses that would be affected by a registrant's requested action and to those who may want to apply for a registration for a pesticide for which there is a request to cancel the registration or to terminate use(s). This process helps to ensure that EPA is basing its regulatory decisions on the most up-to-date and complete information. The Agency did not specifically solicit comments for the purpose of determining if the voluntary cancellation/use termination requests were comprehensive enough or fast enough. Because these are voluntary cancellation/use termination requests, the registrants have proposed their own terms of cancellation/use termination. This type of public comment opportunity under Section 6(f) differs from the current reregistration public process in that during the reregistration public process the Agency solicits comments on a draft preliminary risk assessment and on draft risk mitigation proposals in anticipation of actions that may not be voluntary. Therefore, the scope of the public comment opportunity in the reregistration process is much broader than the scope of the opportunity in this voluntary cancellation/use termination.
Below is the summary of the comments received in response to EPA's request for public comments, along with the corresponding Agency response.
Rather than delay acceptance of other portions of the voluntary cancellation/use termination requests until the reregistration review is complete, EPA has decided to accept the requests for voluntary cancellation/use termination for the other uses and defer any action with respect to requests to terminate agricultural fence post and permanent wood foundation uses until the Agency has evaluated those uses through the reregistration process. If at any time during the reregistration review the Agency determines it has sufficient information to take an action, that is, to either accept or refuse the requests for use termination of those uses, the Agency will take appropriate action. EPA believes this temporary deferral of action is consistent with the principle to phase out CCA for residential uses.
Also, the chromium industry and wood treatment industry requested EPA limit its action regarding the phase-out to only CCA-treated playground structures and decks at this time, pending the outcome of the risk assessment being currently conducted by the Agency. It was requested that certain uses of CCA-treated wood, which were proposed for termination be allowed to continue. Specifically, the commenters requested that CCA-treated wood continue to be permitted for the following uses under the AWPA Commodity Standards C2 (Lumber, Timber, Bridge Ties, Mine Ties for above-ground, soil and freshwater use), C5 (Fence Posts), C15 (Wood for Commercial-Residential Construction-Preservative Treatment by Pressure Processes), C16 (Agricultural Fence Posts and certain Wood used on Farms), and C22 (Permanent Wood Foundation Material).
Under the statute, a registrant may at any time voluntarily request cancellation of a particular pesticide registration or termination of certain uses for the registration. Upon receipt of such requests, the Agency acts upon the requests pursuant to section 6(f) of FIFRA by notifying the public and soliciting comments from the public on the requests received. The Agency reviews the comments and may, based upon the comments received and/or any information or knowledge it may have concerning the pesticide and its uses in the environment, accept or deny the request either in whole or part.
With regard to the comments received from the chromium industry and on behalf of residents of Corpus Christi, Texas, as stated earlier, at this time, the Agency is not acting upon certain use terminations proposed by the registrants. Specifically, the Agency is deferring action on two use terminations addressed in the comments, agricultural fence posts and permanent wood
The environmental groups also believe that the time frame for the phase-out of CCA-treated wood from residential uses is too lengthy, and that the phase-out is not comprehensive enough. They appeared to assume that CCA-treated plywood would continue to be sold in retail stores indefinitely. The commenters also expressed concerns that the Agency doesn't address proper disposal of CCA-treated wood, and treated wood could be burned or dumped in landfills where it can contaminate soil and groundwater. They suggested that the registration be amended to include proper handling, use and disposal of CCA-treated wood.
The Agency is also currently examining the use of CCA-treated wood in light of the latest science and safety standards, under EPA's reregistration process. Upon the completion of the overall risk assessment, which will address the remaining uses of CCA and any occupational hazards that may exist from exposure to CCA, and the benefits assessment, the Agency will announce its proposed approach and the public will be afforded an opportunity to provide comments. The Agency will then consider any comments received and make a final determination as to the reregistration eligibility of the remaining uses of CCA.
With respect to the disposal of CCA-treated wood, CCA-treated wood is classified as non-hazardous waste under the Federal Resource Conservation and Recovery Act (RCRA). Disposal of CCA-treated wood is addressed via the Consumer Awareness Program (CAP). The CAP is a voluntary program established in 1986 (and later updated in 2001) by the registrants of CCA products, to protect consumers by providing them with information on the proper handling, use and disposal of CCA-treated wood. Under this program, instructions on the proper handling, use and disposal of CCA-treated wood are disseminated to consumers upon purchasing CCA-treated wood products via the Consumer Safety Information Sheets (CSIS) and/or end tag labeling applied to the wood product itself. EPA also disseminates guidance to consumers to advise against burning CCA-treated wood. Additional information regarding the CAP, handling, use and disposal of CCA-treated wood can be obtained from the Agency's Web site at:
1.
2.
3.
The Agency has accepted portions of the proposed voluntary cancellation/use termination requests and is deferring action on other portions. As stated earlier, in light of the issues raised by commenters with regard to the agricultural fence post and permanent wood foundation uses, the Agency has decided to defer its decision and action on the registrants' request to terminate these uses until the Agency has evaluated these uses through the reregistration process. If at any time during the reregistration review the Agency determines it has sufficient information to take any action, that is, to either accept or refuse the requests for termination of those uses, the Agency will take appropriate action at that time. EPA's decision on the other portions of the requests for voluntary cancellation/use termination is as follows:
1. The following product registrations were cancelled as of March 17, 2003:
2. The following manufacturing product registrations were amended to delete certain terminated uses as of May 16, 2003:
For the above identified manufacturing-use products, the accepted amended labeling reads as follows:
Effective December 31, 2003, this product may only be used (1) for formulation of the following end-use wood preservative products: ammoniacal copper zinc arsenate (ACZA) or chromated copper arsenate (CCA) labeled in accordance with the Directions for Use shown below, or (2) by persons other than the registrant, in combination with one or more other products to make: ACZA wood preservative; or CCA wood preservative that is used in accordance with the Directions for Use shown below.
Effective December 31, 2003, this product may only be used for preservative treatment of the following categories of forest products and in accordance with the respective cited standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers Association Standards: Lumber and Timber for Salt Water Use Only (C2), Piles (C3), Poles (C4), Plywood (C9), Wood for Highway Construction (C14), Round, Half Round and Quarter Round Fence Posts (C16), Poles, Piles and Posts Used as Structural Members on Farms, and Plywood Used on Farms (C16), Wood for Marine Construction (C18), Lumber and Plywood for Permanent Wood Foundations (C22), Round Poles and Posts Used in Building Construction (C23), Sawn Timber Used To Support Residential and Commercial Structures (C24), Sawn Crossarms (C25), Structural Glued Laminated Members and Laminations Before Gluing (C28), Structural Composite Lumber (C33), and Shakes and Shingles (C34). Forest products treated with this product may only be sold or distributed for uses within the AWPA Commodity Standards under which the treatment occurred.
3. The following end use product registrations were amended to delete certain terminated uses as of May 16, 2003:
For the above identified end-use products, the accepted amended label is to read as follows:
Effective December 31, 2003, this product may only be used for preservative treatment of the following categories of forest products and in accordance with the respective cited standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers Association Standards: Lumber and Timber for Salt Water Use Only (C2), Piles (C3), Poles (C4), Plywood (C9), Wood for Highway Construction (C14), Round, Half Round and Quarter Round Fence Posts (C16), Poles, Piles and Posts Used as Structural Members on Farms, and Plywood Used on Farms (C16), Wood for Marine Construction (C18), Lumber and Plywood for Permanent Wood Foundations (C22), Round Poles and Posts Used in Building Construction (C23), Sawn Timber Used To Support Residential and Commercial Structures (C24), Sawn Crossarms (C25), Structural Glued Laminated Members and Laminations Before Gluing (C28), Structural Composite Lumber (C33), and Shakes and Shingles (C34). Forest products treated with this product may only be sold or distributed for uses within the AWPA Commodity Standards under which the treatment occurred.
4. Further amendments to the product label will be made by the registrants of the above identified amended registrations via notification to the Agency on or before December 1, 2003, to: (1) Delete the use directions in effect prior to these amendments, and (2) delete the preface phrase “Effective December 31, 2003,” from the amended labels such that the statement begins by reading, “This product may only be used for preservative treatment of the following categories of forest products and in accordance with the respective cited standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers' Association Standards...” These specific changes may be done via notification.
5. The registrants of the above identified products will notify their customers of the amended registrations/labels by certified mail. This is to ensure that those who are affected by the cancellation order are aware of the labeling changes.
6. The cancellation order included existing stocks provisions as described in Unit V below.
7. The text in 40 CFR 152.132 provides that a distributor (or supplemental registrant) is considered an agent of the registrant for intents and purposes under the act, and both the registrant and the distributor may be held liable for violations pertaining to the distributor product.
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 cancellation or amendment. Any distribution, sale or use of existing stocks in a manner inconsistent with the terms of the cancellation order or the existing stocks provisions contained in the order will be considered a violation of section 12(a)(2)(K) and/or section 12(a)(1)(A) of FIFRA. The following summarizes the effective dates of cancellation as well as the existing stocks provisions for each product subject to the cancellation order.
1.
2.
Environmental protection, Chromated Copper Arsenate, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces Agency approval of applications submitted by Plant Products Co. Ltd., Brampton, ON L6T 1G1, Canada, to conditionally register the pesticide products
Sharlene R. Matten, Biopesticides and
You may be potentially affected by this action if you produce crops or animals or manufacture food or pesticides. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS 111)
• Animal production (NAICS 112)
• Food manufacturing (NAICS 311)
• Pesticide manufacturing (NAICS 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
In accordance with section 3(c)(2) of FIFRA, a copy of the approved label, the list of data references, the data and other scientific information used to support registration, except for material specifically protected by section 10 of FIFRA, are available for public inspection in the Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Rm. 119, Crystal Mall #2, Arlington, VA (703) 305-5805. Requests for data must be made in accordance with the provisions of the Freedom of Information Act and must be addressed to the Freedom of Information Office (A-101), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. Such requests should: Identify the product name and registration number and specify the data or information desired.
A paper copy of the fact sheet, which provides more detail on this registration, may be obtained from the National Technical Information Service (NTIS), 5285 Port Royal Rd., Springfield, VA 22161.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
A conditional registration may be granted under section 3(c)(7)(C) of FIFRA for a new active ingredient where certain data are lacking, on condition that such data are received by the end of the conditional registration period and do not meet or exceed the risk criteria set forth in 40 CFR 154.7; that use of the pesticide during the conditional registration period will not cause unreasonable adverse effects; and that use of the pesticide is in the public interest. The Agency has considered the available data on the risks associated with the proposed use of
Consistent with section 3(c)(7)(C) of FIFRA, the Agency has determined that these conditional registrations are in the public interest. Use of the pesticides are of significance to the user community, and appropriate labeling, use directions, and other measures have been taken to ensure that use of the pesticides will not result in unreasonable adverse effects to man and the environment.
EPA issued a notice, published in the
The following products were approved on September 20, 2002 to control powdery mildew disease on greenhouse-grown cut roses and English seedless cucumbers:
1.
2. Sporodex L Biological Fungicide (EPA Registration Number 69697-3).
Both conditional registrations were signed on September 20, 2002 and will expire on September 30, 2004. EPA is requiring the registrant to provide data by October 31, 2003 showing detailed analysis of microbial contaminants in production batches, and reporting any incidents of hypersensitivity or other adverse health incidents to workers, applicators, or bystanders. In addition, EPA is requiring storage stability data for Sporodex L Biological Fungicide, and an acute pulmonary infectivity/toxicity study for
Environmental protection, Chemicals, Microbes, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application 75437-EUP-R from Great Lakes Fishery Commission (GLFC) requesting an experimental use permit (EUP) for the sea lamprey migratory pheromone, petromyzonol sulfate. The Agency has determined that the application may be of regional and national significance. Therefore, in accordance with 40 CFR 172.11(a), the Agency is soliciting comments on this application.
Comments, identified by docket ID number OPP-2003-0080, must be received on or before May 9, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Andrew Bryceland, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6928; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to those persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 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
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). 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 docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The GLFC has submitted an application for an EUP to determine if the sea lamprey migratory pheromone, petromyzonol sulfate can be used to attract sea lamprey into traps located in rivers. The study is to be conducted in the following creeks/rivers, states, and counties: Green Creek, Michigan, Cheboygan; Mulligan Creek, Michigan, Presque Isle; Black Mallard River, Michigan, Presque Isle; Ocqueoc River, Michigan, Presque Isle; Trout River, Michigan, Presque Isle; Poultney River/Hubbarton Brook, Vermont and New York, Rutland (VT) and Washington (NY); Winooski River/Sunderland Brook, Vermont, Chittendon; Great Chazy River/Corbeau Creek, New York, Clinton; and Mallets Bay/Allen Brook, Vermont, Chittendon. The total acreage to be treated is 16.7 acres.
Following the review of the GLFC application and any comments and data received in response to this notice, EPA will decide whether to issue or deny the EUP request for this EUP program, and if issued, the conditions under which it is to be conducted. Any issuance of an EUP will be announced in the
The Agency's authority for taking this action is under FIFRA section 5.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application 75437-EUP-E from Great Lakes Fishery Commission (GLFC) requesting an experimental use permit (EUP) for the male sea lamprey sex pheromone 3-ketopetromyzonol sulfate. The Agency has determined that the application may be of regional and national significance. Therefore, in accordance with 40 CFR 172.11(a), the Agency is soliciting comments on this application.
Comments, identified by docket ID number OPP-2003-0081, must be received on or before May 9, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Andrew Bryceland, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6928; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to those persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 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
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). 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 docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The GLFC has submitted an application for an EUP to determine if the male sea lamprey sex pheromone, 3-ketopetromyzonol sulfate is as effective as spermiating male sea lamprey washings in attracting ovulated female sea lampreys. The study is to be conducted in the Ocqueoc River, Presque County, Michigan with a total treated acreage of 0.15 acre.
Following the review of the GLFC application and any comments and data received in response to this notice, EPA will decide whether to issue or deny the EUP request for this EUP program, and if issued, the conditions under which it is to be conducted. Any issuance of an EUP will be announced in the
The Agency's authority for taking this action is under FIFRA section 5.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“CERCLA”), 42 U.S.C. 9601-9675, and the Solid Waste Disposal Act, commonly referred to as the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 (“RCRA”), 42 U.S.C. 6901-6992k, notice is hereby given that a proposed Prospective Lessee Agreement (“Lessee Agreement”) associated with a 27-acre parcel of property formerly owned and operated by Allied-Signal located in Baltimore, Maryland (the “Property”), was executed by the Environmental Protection Agency, the Maryland
During its operation and ownership of the Property, Allied-Signal used the Property for chromium processing activities which contributed to chromium contamination in the soil and the groundwater at the Property. In June 1989, Region III, the MDE and Allied-Signal entered into a Consent Decree under RCRA under which Allied-Signal agreed to conduct an on-site and off-site investigation. As a result of those investigations, EPA and MDE chose a remedy for the Site which required Allied-Signal to, among other things, construct a hydraulic barrier to contain the contaminated groundwater and conduct perpetual monitoring.
EPA and MDE have determined that Honeywell, the current owner of the Property, is successfully completing the requirements under the Consent Decree. Upon entering a lease with the Lessees, Honeywell will still be required to complete and maintain the remedy as provided for under the Consent Decree.
For fifteen (15) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed Lessee Agreement. The Agency's response to any comments received will be available for public inspection at the U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103.
Comments must be submitted on or before April 24, 2003.
Sheila Briggs-Steuteville (3RC43), Senior Assistant Regional Counsel, U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, PA 19103, Phone: (215) 814-2468.
Environmental Protection Agency (EPA).
Notice; final approval of the State of North Dakota Lead-Based Paint Activities Program.
On October 4, 2002, EPA received an application from the State of North Dakota requesting authorization to administer a Program in accordance with section 402 of the Toxic Substances Control Act (TSCA). Included in the application was a letter signed September 26, 2002, by the Governor of North Dakota, stating that the State's Lead-Based Paint Abatement Program is at least as protective of human health and the environment as the Federal program under TSCA section 402. Also, included was a letter from the Attorney General of North Dakota, certifying that the laws and regulations of the State provided adequate legal authority to administer and enforce TSCA section 402. North Dakota certifies that its program meets the requirements for approval of a State program under section 404 of TSCA and that North Dakota has the legal authority and ability to implement the appropriate elements necessary to enforce the program. Therefore, pursuant to section 404, the program is deemed authorized as of the date of submission. Today's notice announces the authorization of the State of North Dakota Lead-Based Paint Activities Program to apply in the State of North Dakota effective September 26, 2002.
The Lead-Based Paint Activities Program authorization was granted to the State of North Dakota on September 26, 2002.
Amanda Hasty, Lead Coordinator, Environmental Protection Agency, Region VIII, 8P-P3T, 999 18th St., Suite 300, Denver, CO 80202-2466; telephone: (303) 312-6966; e-mail address:
This notice is directed to the public in general. This notice may, however, be of interest to firms and individuals engaged in lead-based paint activities in North Dakota. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by the notice. If you have any questions regarding the applicability of this notice to a particular entity, consult the person listed under
On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. The Act amended TSCA (15 U.S.C. 2601
Section 402 of TSCA (15 U.S.C. 2682) authorizes and directs EPA to promulgate final regulations governing lead-based paint activities in target housing, public and commercial buildings, bridges and other structures. On August 29, 1996 (61 FR 45777) (FRL-5389-9), EPA promulgated final TSCA section 402/404 regulations governing lead-based paint activities in target housing and child-occupied facilities (a subset of public buildings). These regulations are to ensure that individuals engaged in such activities are properly trained, that training programs are accredited, and that individuals engaged in these activities are certified and follow documented work practice standards. Under section 404 (15 U.S.C. 2684), a State or Indian Tribe may seek authorization from EPA to administer and enforce its own lead-based paint activities program.
States and Tribes that choose to apply for program authorization must submit a complete application to the appropriate Regional EPA Office for review. EPA will review those applications within 180 days of receipt
A State may choose to certify that its lead-based paint activities program meets the requirements for EPA authorization, by submitting a letter signed by the Governor or the Attorney General stating that the program meets the requirements of section 404(b) of TSCA. Upon submission of such certification letter, the program is deemed authorized until such time as EPA disapproves the program application or withdrawals the program authorization.
In accordance with 40 CFR 745.324(d), “Program Certification,” the Governor of North Dakota submitted a self-certification letter to the EPA Administrator on September 26, 2002, certifying that the State program meets the requirements contained in 40 CFR 745.324(e)(2)(i) and (e)(2)(ii). Included in the application was a letter from the Attorney General of North Dakota, certifying that the laws and regulations of the State provided adequate legal authority to administer and enforce TSCA section 402.
Notice of North Dakota's application, a solicitation for public comment regarding the application was published in the
TSCA section 404(b) (15 U.S.C. 2684(b)) makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved State or Tribal program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of an authorized State or Tribal program.
Pursuant to TSCA section 404(c), the Administrator may withdraw a State or Tribal lead-based paint activities program authorization, after notice and opportunity for corrective action, if the program is not being administered or enforced in compliance with standards, regulations, and other requirements established under the authorization. The procedures EPA will follow for the withdrawal of an authorization are found at 40 CFR 745.324(i).
The Congressional Review Act, 5 U.S.C. 801 as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action 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 this document in the
Environmental protection, Hazardous substances, Lead, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Notice, with request for comment.
The Environmental Protection Agency is providing notice and requesting public comment on the Agency's preliminary review of regulations under the Clean Water Act governing the use and disposal of sewage sludge. As part of this review, EPA commissioned the National Research Council (NRC) of the National Academy of Sciences to independently review the technical basis of the chemical and pathogen regulations applicable to sewage sludge that is applied to land. In July 2002, the NRC published a report entitled “Biosolids Applied to Land: Advancing Standards and Practices” in response to the EPA's request.
Today, the Agency is also announcing a strategy explaining how EPA plans to respond to the recommendations in the NRC report. Today's notice explains the rationale for the strategy and solicits public comments on the strategy.
In addition, EPA is announcing the preliminary results of its review of existing sewage sludge regulations under the Clean Water Act. At this time, EPA has not identified any additional toxic pollutants that warrant regulation in sewage sludge. The next step in identifying chemicals that may warrant regulation is to conduct a screening analysis of those chemicals for which adequate data and analytical methods are available and for which there is evidence that they may occur in sewage sludge. EPA plans to complete this screening analysis by January 2004. The terms “sewage sludge” and “biosolids” are used interchangeably in this notice.
EPA requests comments on all aspects of this notice. If you wish to submit comments on this action, you must do so by July 8, 2003.
Send your comments to: Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OW-2003-0006. Comments may also be submitted electronically or through hand delivery/courier. Follow the detailed instructions for providing comments in section B of the
Arleen Plunkett, U.S. Environmental Protection Agency, Office of Water, Health and Ecological Criteria Division (4304T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. (202) 566-1119.
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in section A.1.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider late comments.
If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also, include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at
Comments may be sent by electronic mail (e-mail) to
You may submit comments on a disk or CD ROM that you mail to the mailing address identified in section B.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.
2.
3.
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 any technical information and/or data you used that support your views.
4. If you estimate a potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA promulgated Standards for the Use or Disposal of Sewage Sludge (40 CFR part 503) under section 405(d) and (e) of the Clean Water Act (CWA), 33 U.S.C. section 1345(d), (e), as amended by the Water Quality Act of 1987. In these amendments to section 405 of the CWA, Congress, for the first time, set forth a comprehensive program for reducing the potential environmental risks and maximizing the beneficial use of sewage sludge. As amended, section 405(d) of the CWA requires EPA to establish numerical limits and management practices that protect public health and the environment from the reasonably anticipated adverse effects of toxic pollutants in sewage sludge. Section 405(e) prohibits any person from disposing of sewage sludge from publicly owned treatment works (POTW) or other treatment works treating domestic sewage for any use except in compliance with regulations promulgated under section 405.
Section 405(d) calls for two rounds of sewage sludge regulations and sets deadlines for promulgation. In the first round, EPA was to establish numerical limits and management practices for those toxic pollutants which, based on “available information on their toxicity, persistence, concentration, mobility, or potential for exposure, may be present in sewage sludge in concentrations that may adversely affect public health or the environment.” CWA section 405(d)(2)(A). The second round is to address toxic pollutants not regulated in the first round “which may adversely affect public health or the environment.” CWA section 405(d)(2)(B).
EPA did not meet the timetable in section 405(d) for promulgating the first round of regulations, and a citizen's suit was filed to require EPA to fulfill this mandate, (Gearhart v. Reilly, Civ. No. 89-6266-HO (D. Ore.)). A consent decree was entered by the court in this case, establishing schedules for both rounds of sewage sludge rules. EPA promulgated the first rule in 1993, 40 CFR part 503. 58 FR 9248 (Feb. 19, 1993) (“Round One”). For the second round (“Round Two”), EPA identified 31 pollutants and pollutant categories not regulated in Round One that EPA was considering for regulation. In November 1995, EPA narrowed the original list of 31 pollutants to two pollutant groups for the second round rulemaking: polychlorinated dibenzo-p-dioxins/dibenzofurans (PCDDs/Fs) and dioxin-like coplanar polychlorinated biphenyls (PCBs) (USEPA, 1996). The consent decree required the Administrator to sign a notice for publication proposing Round Two regulations no later than December 15, 1999, and to sign a notice taking final action on the proposal no later than December 15, 2001. (
On December 15, 1999, the Administrator signed a proposal to establish numerical limits for dioxins, dibenzofurans, and co-planar PCBs (“dioxins”) in sewage sludge that is applied to the land and proposed not to regulate dioxins in sewage sludge that is disposed of in a surface disposal unit or fired in a sewage sludge incinerator. 64 FR 72045 (December 23, 1999). On December 21, 2001, the Administrator gave final notice of EPA's determination
On June 12, 2002 at 67 FR 40554, EPA published a Notice of Data Availability (NODA) containing new information relating to dioxins in land-applied sewage sludge and requested public comments. Currently, EPA is evaluating the public comments received on the NODA and will consider these comments in formulating a final action on dioxins in land-applied Sewage sludge by October 17, 2003.
As noted above, CWA Section 405(d)(2)(A) required the first round of regulation to be based on “available information on [the] toxicity, persistence, concentration, mobility, or potential for exposure” of toxic pollutants in sewage sludge. EPA published the Round One standards (40 CFR Part 503) on February 19, 1993. These regulations established requirements for the final use and disposal of sewage sludge when it is: (1) Applied to the land for a beneficial purpose, including in home gardens, (2) placed in a surface disposal site, including biosolids-only landfills, and (3) incinerated.
For land application, Part 503 set numerical limits for nine heavy metals in sewage sludge, established operational standards (described below) to reduce or eliminate pathogens in sewage sludge and to reduce vector attraction, and required management practices to restrict the application rate and placement of sewage sludge on the land. Regarding surface disposal, Part 503 set numerical limits for three metals in sewage sludge, established requirements for the placement and management of a surface disposal site, and established operational standards to reduce or eliminate pathogens in sewage sludge and to reduce vector attraction. For incineration in a sewage sludge incinerator (SSI), Part 503 establishes limits for five metallic pollutants in sewage sludge fired in a SSI and adopted standards under the Clean Air Act for two additional metallic pollutants. The Agency has also established performance standards for SSIs through an operational standard for total hydrocarbons or carbon monoxide emissions that controls numerous organic compounds found in the emissions of sewage sludge incinerators. Part 503 also allows disposal of sewage sludge in a municipal solid waste landfill in accordance with 40 CFR part 258. In addition, the final rule requires monitoring, record keeping, and reporting. Standards apply to publicly and privately-owned treatment works that generate or treat domestic sewage sludge and to anyone who uses or disposes of sewage sludge.
The part 503 Standards consist of six elements designed to work together to protect human health and the environment. These elements are (1) numerical limits for certain pollutants, (2) management practices, (3) operational standards, (4) monitoring, (5) record keeping, and (6) reporting.
As an example, the land application provisions require a sewage sludge preparer to gather information on the nutrient content of the sewage sludge and pass this information along to the land applier in order for the land applier to be able to apply the sewage sludge at a suitable agronomic rate. Numerical limitations for land-applied sludge are pollutant concentrations in sewage sludge or cumulative or annual loading rates, based on multi-pathway exposure analyses and risk assessments to protect public health. Management practices include requirements, such as how the sewage sludge is to be placed on the land or otherwise managed in the environment. An example is the prohibition against applying sewage sludge to land closer than 10 meters from waters of the United States. Operational standards are technology requirements such as process descriptions and performance requirements to reduce or eliminate pathogens from sewage sludge and reduce vector attraction. These, together with required crop harvesting restrictions and site controls, constitute the approach for the control of pathogens in sewage sludge.
Monitoring of chemicals and pathogens in sewage sludge and certification of certain actions by the preparer or land applier must be performed at a frequency commensurate with the annual amount of land-applied sewage sludge. Records must be kept of these monitoring and certification activities at the locations where the monitoring/certifications have occurred. Finally, the larger sewage sludge preparers and land appliers must report this information to the permitting authority at least annually.
EPA has amended part 503 several times since its initial publication in February 1993. Following promulgation of the Round One rule, several petitions for review were filed challenging various aspects of the rule. In one petition, several mining and chemical concerns challenged the land application molybdenum limits. EPA amended the part 503 numerical standards for molybdenum to delete the cumulative loading rate, annual loading rate, and the pollutant concentration for molybdenum in sewage sludge to be land-applied. 59 FR 9095 (February 25, 1994). The ceiling concentration value for molybdenum was retained. Also, in that
For a detailed discussion of the Part 503 Rule, see A Plain English Guide to the EPA Part 503 Biosolids Rule (1994), which is available as stated in the
Section 405(d)(2)(C) of the CWA calls on EPA to review the existing sewage sludge regulations in part 503 at least every two years for the purpose of identifying additional toxic pollutants in sewage sludge and promulgating regulations for such pollutants consistent with the requirements of section 405(d). Over the past decade, questions have been raised over the
In an agreement with the parties in Gearhart v. Whitman, EPA agreed to publish a notice in the
EPA asked the NRC to conduct an independent evaluation of the regulations and standards for chemical pollutants and pathogens in biosolids that are land-applied. Specifically, the NRC was asked to focus on the adequacy and appropriateness of the risk assessment methods and data used by the Agency in setting regulatory requirements to protect human health. The NRC convened the Committee on Toxicants and Pathogens in Biosolids Applied to Land (“the committee”), which conducted and prepared a final report. The Statement of Tasks included the following:
1. Review the risk assessment methods and data used to establish concentration limits for chemical pollutants in biosolids to determine whether they are the most appropriate approaches. Consider the NRC's previous (1996) review and determine whether that report's recommendations have been appropriately addressed. Consider (a) how the relevant chemical pollutants were identified, (b) whether all relevant exposure pathways were identified, (c) whether exposure analyses, particularly from indirect exposures, are realistic, (d) whether the default assumptions used in the risk assessments are appropriate, and (e) whether the calculations used to set pollutant limits are appropriate.
2. Review the current standards for pathogen reduction or elimination in biosolids and their adequacy for protecting public health. Consider (a) whether all appropriate pathogens were considered in establishing the standards, (b) whether enough information on infectious dose and environmental persistence exists to support current control approaches for pathogens, (c) risks from exposure to pathogens found in biosolids, and (d) new approaches for assessing risks to human health from pathogens in biosolids.
3. Explore whether approaches for conducting pathogen risk assessment can be integrated with those for chemical risk assessment. If appropriate, recommend approaches for integrating pathogen and chemical risk assessments.
The NRC report, “Biosolids Applied to Land: Advancing Standards and Practices,” described the work of the committee, stating that “the committee searched for evidence on human health effects related to biosolids exposure” in its review of the risk assessments and technical data used by EPA to establish the chemical and pathogen standards and the management practices contained in part 503. The report noted that “the committee did not attempt to determine whether the approaches used by EPA to set the 1993 biosolids standards were appropriate at the time of their development, and the committee's findings and recommendations should not be construed as either criticism or approval of the standards issued at that time.”
The NRC committee concluded that “there is no documented scientific evidence to indicate that the part 503 rule has failed to protect human health,” but additional scientific work is needed to reduce persistent uncertainty about the potential for adverse human health effects from exposure to biosolids. The committee recognized that land application of biosolids is a widely used, practical option for managing the large volume of biosolids generated at waste water treatment plants that otherwise would need to be disposed of at landfills or by incineration. The committee also identified a need to update the scientific basis of part 503 to (1) ensure that the chemical and pathogen standards are supported by current scientific data and risk assessment methods, (2) demonstrate effective enforcement of part 503, and (3) validate the effectiveness of biosolids management practices. The NRC report focused on identifying how current risk assessment practices and knowledge regarding chemical pollutants and pathogens in biosolids can be used to update and strengthen the scientific basis and credibility of EPA's biosolids regulations.
The NRC report contains four overarching recommendations: (1) Use improved risk assessment methods to better establish standards for chemicals and pathogens, (2) conduct a new national survey of chemicals and pathogens in biosolids, (3) establish an approach to human health investigations, and (4) increase the resources devoted to EPA's biosolids program. These four overarching recommendations are discussed in detail and supplemented by 53 individual recommendations contained in Chapters 2-6 of the NRC report.
Upon the release of the report, EPA established an Intra-Agency Committee (IAC) to respond to the recommendations in the NRC report and begin review of the existing Part 503 regulations to identify additional toxic pollutants that may warrant future regulation, pursuant to section 405(d)(2)(C). The IAC is comprised of EPA representatives from a cross-section of environmental program offices that are involved or interested in the biosolids program.
The IAC first developed an approach for responding to the NRC report and conducting the section 405(d)(2)(C) review of existing regulations. Activities for responding to the NRC report included developing a matrix to identify and track each recommendation, grouping the recommendations into eight categories based on subject area, evaluating the recommendations individually and establishing priorities, drafting initial responses by category, and developing a strategy to carry out the activities identified in response to the NRC recommendations. The approach for reviewing existing regulations to identify additional toxic pollutants that may warrant regulation, pursuant to section 405(d)(2)(C), is described in Section IX of this notice.
As stated above, the IAC first prepared a matrix (Compilation of National Research Council (NRC) Recommendations on Biosolids and
The Agency categorized the 57 recommendations (four overarching and 53 specific) into eight categories: (1) Survey, (2) Exposure, (3) Risk Assessments, (4) Methods Development, (5) Pathogens, (6) Human Health Studies, (7) Regulatory Activities, and (8) Biosolids Management. EPA's response and planned activities are presented on a category-by-category basis.
EPA has identified three main objectives for attaining a better understanding of biosolids and reducing the potential for, or reducing the uncertainty related to, human health impact: (1) Update the scientific basis of Part 503 by conducting research in priority areas, (2) strengthen the biosolids program by evaluating results of completed, ongoing, or planned studies both within and outside EPA, and (3) continue ongoing activities for enhancing communication with outside associations and with the public.
Over the next two years, subject to available resources, the Agency proposes to pursue biosolids activities in the following priority areas:
1. Continue program implementation (regulatory, compliance, and enforcement).
2. Evaluate the state-of-the-science and revise risk assessment methodologies, as appropriate.
3. Review available data, track ongoing studies by researchers outside of EPA, and identify information gaps. Initiate further field studies as needed.
4. Continue ongoing/planned activities relative to exposure, risk assessment, biosolids management, and analytical methods development.
5. Determine what pollutants, if any, warrant further regulation under the CWA.
6. Design and begin conducting a targeted survey that uses information obtained from published pollutant occurrence and effects data, State occurrence data bases, and input received during the public comment period.
7. Conduct a dialogue with other health-based Federal agencies, such as CDC, on the possibility of cooperatively tracking incident reports and investigating whether adverse human health outcomes can be associated with biosolids exposure. The results could help the Agency identify research gaps and, if appropriate, the need for a more comprehensive research plan.
These activities would be aimed at implementing NRC recommendations for reducing the potential for public health impact and updating the scientific basis of Part 503.
The Agency's proposed long-term biosolids activities depend on results of activities conducted in FY03/FY04 and available resources. The following priority areas are aimed at implementing recommendations for reducing the potential for public health impact:
1. Continue program implementation (regulatory, compliance, and enforcement).
2. Update the scientific basis of Part 503 by using FY03/04 research or by conducting research in priority areas.
3. Strengthen the biosolids program by incorporating results of completed, ongoing, or planned research activities both within and outside EPA to possibly include:
• Quantitative microbial risk assessment.
• Improved understanding of exposure pathways/scenarios.
• Molecular tracking study.
4. Continue activities to establish partnerships and communicate more effectively with other public health-based agencies, outside associations and the public.
There is considerable relevant work being conducted by others outside of EPA that may help inform and respond to the NRC recommendations. Much of the external work that relates directly to certain NRC recommendations is discussed in this notice and is being used to improve the Agency's biosolids program.
The Agency's approach also includes promoting policy and procedural guidance for ensuring and maximizing the quality of the information disseminated. Completed studies and ongoing research, once compiled, will be reviewed and evaluated for their contribution to EPA's biosolids program in accordance with Information Quality Guidelines (expressed in “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency” USEPA 2002b). These guidelines stress that information disseminated by EPA should adhere to a basic standard of quality, including objectivity, utility, and integrity.
EPA has developed this notice using its best estimate of FY 2003 resources, which are not finalized, and based on the President's FY 2004 budget. The Agency has assumed the same level of funding for future years, as is typically done.
The NRC recommended that the Agency conduct a new national survey of chemicals and pathogens in biosolids. A survey may provide feedback for updating the science and technology of biosolids applied to land. These data would then be used to identify pathogens and additional chemicals for potential regulation and possibly deregulate those that are not, or no longer, found. The NRC recommended several components in designing a new national survey, including collecting data from State program databases, determining the adequacy of analytical detection methods and limits to support risk assessment, evaluating chemicals eliminated previously due to lack of data (
Further, the NRC recommended monitoring environmental media, surveying for pathogens in both raw sewage sludge and treated sewage sludge managed through the various processes recommended in Part 503, assessing multiple species of certain metals (
In addition, the NRC recommended that the Agency verify the adequacy of treatment and management practices. For example, to verify that Class A and B (as described in Part 503) treatment processes perform as assumed by engineering and design principles, EPA could determine pathogen density and elimination across treatment processes in biosolids and environmental media over time and examine management practices to ensure that risk-assessment
The Agency believes that a comprehensive survey of pollutants in biosolids may provide useful information, but it is not likely the most pragmatic survey option available at this time. EPA has developed a proposed survey approach based on experience gained from the 1988 National Sewage Sludge Survey (NSSS), limitations of available analytic methods, knowledge of effects and routes of exposure, and suggestions by the NRC, among other factors (see Planned Strategy for the Survey Category below). The 1988 NSSS was ultimately limited in utility by shortcomings in available analytical methods and limited information of pollutant effects and/or means of exposure. While some advances in these areas have been made since 1988, these same limitations still exist for many pollutants, especially for pathogens and many of the new or emerging chemicals identified by the NRC. Therefore, EPA has concluded that a less comprehensive, more targeted, survey, to help fill data gaps and inform decisions regarding further studies, may be more useful to address uncertainties highlighted by the NRC. Information developed by national and international experts on pathogens and toxic chemicals may help produce a better informed survey design. The Agency believes that using such information may produce more valuable results than conducting a comprehensive national survey at this time. EPA is first planning to develop and initiate a targeted survey after considering the following sources of information:
Other sources of data include studies conducted by EPA regional offices, States, and universities. For example, EPA Region 8 is conducting a long-term study of biosolids addition to soil and the potential effects on soil microbiology. The University of Arizona is conducting research on airborne pathogen exposure at various times and distance from biosolids application sites. Within the next six to nine months, the Agency plans to review and assess such studies for their contribution in determining the potential for exposure and adverse human health impact from land-applied biosolids.
While study emphasis is being placed on pathogens to address areas of uncertainty and public interest, selected chemicals are also being addressed to help determine significant issues and identify information gaps that remain to be addressed in these areas.
During the next fiscal year the Agency plans to initiate or continue Studies devoted to:
1. Methods development and/or validation studies for enteric viruses and helminth ova (see Methods Development).
2. Continuation and/or expansion of field studies to determine environmental contaminant occurrence at selected sites (see Methods Development and Pathogens Categories).
In addition, during the next 18 to 24 months, EPA is proposing to design a targeted approach for a survey of pollutants that occur in sewage sludge. New and existing information from sources such as relevant published pollutant occurrence and effects data, State occurrence databases, and input received during the public comment period will be used to help in the development of the proposed survey.
To ensure the survey provides meaningful results and the effective use of limited resources, EPA is considering restudying some of the pollutants that were studied in the 1988-1989 NSSS. EPA is also considering including some new and emerging chemicals, taking into account the availability of adequate analytical methods and their associated analytical costs. As a result, the Agency may only be able to measure a limited number of pollutants.
The NRC made recommendations on how current exposure information and updated conceptual exposure models can be used to update and strengthen the scientific basis of the chemical and technology-based pathogen standards. This category also includes recommendations to evaluate exposure for the reasonable maximum exposure (RME) individual, updating fate and transport models that might affect exposure estimates, and conducting pre-planned exposure studies under certain situations for specific exposure groups.
Understanding human exposure to chemicals and pathogens, including the concentrations and fate and transport through important exposure pathways, is key for risk assessments supporting the Part 503 rule. As discussed below in the Risk Assessment category, the Agency plans to use a risk assessment framework to evaluate the priorities for reassessing or updating underlying components (including exposure assumptions) of previously conducted risk assessments. The Agency plans to use this information to determine if new exposure and risk calculations may be warranted for pollutants not previously assessed. Such an evaluation would include a review of the exposure information used in the Round 1 and Round 2 rules in light of new exposure information.
To conduct this activity, the Agency plans to first collect and review currently available exposure information from published literature, Federal and State databases, the NRC report, and other relevant sources. The Agency anticipates that some of the NRC recommendations regarding exposure may be addressed in newly available information, while others may require completion of ongoing studies. The Agency plans to review currently available exposure information to help identify data gaps and to inform decisions about future risk assessments and the need for additional exposure studies.
In the mid-1990's, EPA conducted research on the land application of biosolids to disturbed and contaminated sites requiring reclamation or remediation. These studies, which focused on the ability of biosolids to help improve soil properties and
Planned work is expected to begin in mid 2003. The plan is for facility operations for these sites to be documented, including the operation and performance of treatment process used to process sewage sludge and produce Class A and Class B biosolids. Pathogen and chemical occurrence data will also be collected at these sites. Proposed measurements over time for the production and land application processes may include total and volatile solids, pH, temperature, odor, appearance (
Because of concern over bioaerosols, air samples will be taken prior to, during, and following land application at the point of application and the fence line, for up to thirty days. Air sampling will be conducted in collaboration with USDA to address pathogens, chemicals, endotoxins, and particulates occurrence. Chemical and pathogen concentrations in air represent an initial step towards understanding the potential exposure of nearby communities. A description of the proposed studies can be found in the Pathogens category.
EPA plans to continue its research partnership with USDA and the State of PA and to study an additional five field application sites.
The Agency is exploring a plan to conduct a molecular pathogen tracking exposure study as a follow-up to the PA/USDA/EPA study. This study would focus on individuals who have received medical attention and who suspect that they have been affected by biosolids application practices. This study would analyze human biological monitoring samples (
The NRC recommended that the Agency use improved risk assessment methods to better assess risks and establish standards for chemicals and pathogens under Part 503, since methods for conducting risk assessments have evolved substantially since the 1993 regulations were established. The recommendations also include reassessing standards for chemicals currently in the Part 503 regulation using the latest science. The NRC suggested that future risk assessments incorporate new information on exposure, dose-response relationships, pathogen survival, quantitative microbial risk assessment techniques, and consideration of site-specific factors that may affect risk management practices (
For this notice, risk assessment is defined as the process of identifying the potential adverse health effects associated with environmental exposures to pollutants in biosolids, their severity, and likelihood. Previously, EPA used a risk based approach for estimating risks to human health and developing management practices to reduce risks and set protective standards. When they were conducted, EPA's assessments were based on state-of-the-science methods, information and management practices. The NRC recommended areas where new or updated health and exposure information, models, and risk assessment methods may strengthen the Agency's assessments for land-applied biosolids.
Consistent with the recommendations of the NRC, EPA plans to address the potential health hazards and exposures associated with land application of biosolids using state-of-the-science risk approaches. Specifically, EPA plans to reassess methods and data used for previously evaluated pollutants, and apply these methods to new pollutants. For example, risks from pollutants not previously assessed due to a lack of toxicity, environmental fate, or exposure information, will be reevaluated if new information is available. This effort is expected to take place in FY03 and FY04. The Agency has assessed risks to children and sensitive populations, and will continue that approach in future assessments and reassessments.
The NRC also recommended that representative stakeholders could be included in the risk assessment process to help identify exposure pathways, local conditions that could influence exposure, and possible adverse health outcomes. The Agency's policy is to involve stakeholders at various stages of policy development. The Agency intends to consider how consultation with stakeholders should be included in developing future sewage sludge risk assessments.
EPA, in conjunction with States and other Federal agencies, has already been addressing local biosolids issues in a
For the ongoing Round Two land application rulemaking, EPA conducted a revised risk assessment in response to public and peer review comments on the 1999 Round Two proposal. This revised assessment used a probabilistic approach instead of a deterministic approach to yield information on the sources of variability and uncertainty in the final risk estimates. The probabilistic approach used estimated values for certain input variables over the range of observed data to estimate the risks for the highly exposed population. This revised risk assessment also used new inputs, which included a redefined “highly exposed individual,” new pathways and mechanisms of exposure, new exposure factors adopted from the latest EPA Exposure Factors Handbook, a sensitivity analysis to determine the relative importance of the input variables, and updated scientific information on the chemicals of concern, dioxins. EPA redefined the “highly exposed individual” as a member of a farm family that consumes 50 percent of his/her diet from home-produced crops and animal products grown on his/her own biosolids-amended land. EPA plans to use the Round Two risk assessment approach as a starting point for evaluating the NRC's recommendations, including the use of the reasonable maximum exposed (RME) individual for improving future risk assessments.
EPA is currently funding and conducting research related to risk assessment of biosolids. EPA is sponsoring research or has awarded grants to the Water Environment Research Foundation (WERF) and others to develop quantitative pathogen risk assessment methods and approaches. EPA plans to conduct a comprehensive evaluation and peer review of these results and, if deemed appropriate for use in assessing risk from pathogens found in biosolids, the Agency would incorporate these new risk assessment methods into any new or updated risk assessment and update the part 503 rule as necessary.
Other studies and related activities that EPA is conducting or sponsoring include the development of dose-response models for quantitative risk assessment of selected pathogens and the development of transmission models of pathogens and disease. These models are currently being developed for drinking water and, EPA plans to evaluate and, if appropriate, modify applicable models to be used in analyzing pathogens in biosolids. In addition, research is being conducted with USDA and various States on the extent of airborne concentrations of pathogens, toxic compounds, odorants, particulates and bioaerosols. EPA plans to evaluate the results of these studies for use in refining and improving future biosolids exposure and risk assessments. Further descriptions of these studies are provided in the pathogen section and the action plan.
To further the state of the knowledge surrounding all aspects of sewage sludge use and disposal, including improved risk assessments, EPA is supporting a workshop scheduled for January of 2004 on the “state of the science” on land application of municipal and industrial wastewater effluents, sewage sludge, and animal manures. This workshop is being coordinated by the University of Florida and will have numerous contributors from the Agricultural Research Service of USDA, and academia, among other groups. New and additional information on biosolids toxicities and environmental properties may emerge from this workshop; once evaluated, this information may be used in future risk assessment updates of the Part 503 Rule. The Web site
As discussed previously, EPA may use the risk assessment paradigm to provide both a focused reassessment of certain previously addressed pollutant risks, exposure pathways and risk assessment approaches, as well as assessing pollutants which have not been previously evaluated to effectively address the NRC risk assessment related recommendations and the review required by Section 405(d)(2)(C) of the CWA. These risk assessment activities will be initiated this year. This effort will be developed and outlined by an interdisciplinary workgroup within EPA and include external review of the analysis plan.
For this risk analysis, EPA is planning to focus on an evaluation of those key pollutants and pathways which are likely to be of greatest concern or where the new scientific developments may have the greatest impacts. This may result in later updating the Round One risk assessment models and re-evaluating selected pollutants, pathways and endpoints and/or new pathways and endpoints not previously addressed.
EPA is planning a two-step process for addressing the NRC recommendations with respect to risk assessments for pollutants in sewage sludge. The first step would be to conduct a problem formulation which would re-evaluate or assess methods, approaches and pollutants considered in the Round One determinations, and any new qualitative information for future pollutants. This problem formulation step would include the development of exposure/risk assessment scenarios that would be used to identify critical/key stressors, routes of exposure, model application and data gaps. The primary focus of this effort will be on areas having the greatest potential risks and uncertainties (
The second step would be to conduct quantitative risk assessments and risk characterizations for key pollutants identified and prioritized by the scenario/conceptual models, as appropriate. These assessments would initially be screening level risk assessments. More refined assessments would be conducted only on those pollutants and pathways for which the screening-level assessment indicate significant potential for risk. In conducting any risk assessments, screening or comprehensive, EPA will, as appropriate, apply the most up-to-date scientific information and risk assessment methodologies. In addition, EPA proposes to continue its efforts to evaluate and develop new methods for pathogen risk assessments and improved models for exposure assessments.
EPA's proposed activities are to continue to track development of methods for QMRAs and develop guidelines for assessing risk from pathogens. In addition, EPA also plans to continue work on the evaluation of data and models for improving exposure assessments. EPA may also evaluate and
The NRC recommended that the Agency develop and standardize methods for measuring pathogens and emerging chemicals in biosolids and bioaerosols. Standardized methods could be used to provide measures of performance and to verify that the Agency's management practices and standards are reliable.
Specifically, the NRC recommended developing, standardizing, and validating methods for pathogens in biosolids and bioaerosols (
For the methods development category, the Agency plans to focus its resources on pathogens and chemicals associated with biosolids. Validated analytical methods are necessary to support exposure assessments for toxic pollutants and pathogens. Methods are needed for determining the reliability of treatment processes, assaying pathogens and chemicals in raw and treated biosolids, incident follow-up, sampling environmental media, and human biological monitoring. Ongoing or planned methods development activities in the Agency that address the NRC recommendations follow.
Recently initiated EPA methods development work includes field studies at five biosolids production and application sites. Currently available analytical methods are being identified or in some cases adapted for this study. A description of these field studies has been provided in the preceding Exposure subsection of this notice. Additionally, EPA is conducting field studies at animal manure land application sites, composting sites, and concentrated animal feeding operations (CAFOs). This research includes measurements of pathogens, toxic organic compounds, odorants and particulates in the air near CAFOs. Both the biosolids and CAFO studies include evaluation and adaptation of analytical methods for selected pathogens and chemicals. Results of these studies should assist the Agency in determining the need for additional methods development research.
Open-path Fourier Transform Infrared (FTIR) spectrometry will be used to measure volatile organic compounds from land application sites. EPA is validating analytical methods for microorganisms cited in 40 CFR Part 503. Fecal coliform methods have been validated, whereas Salmonella methods are being validated. Methods and validation studies for these two agents are expected to be published in 2004.
As part of its field study programs, EPA plans to work with USDA to investigate methods for measuring bacteria and viruses in air upwind and downwind of biosolids land application sites. EPA is considering developing and validating analytical methods for enteric viruses and helminth ova, as well as chemical analytical methods for emerging chemicals of potential concern in biosolids (
The NRC recommended that the Agency review approaches for developing microbial analytical methods and conducting microbial risk assessments (Quantitative Microbial Risk Assessments) to analyze sensitivity and to ascertain what critical information is needed to reduce uncertainty about the risks from exposure to pathogens in biosolids. According to the NRC, research activities that might improve EPA's pathogen standards and reduce risk, or uncertainties concerning risk, from pathogens following exposure to biosolids include development, standardization and validation of detection and quantification methods for pathogens and indicator organisms, conducting research on vectors carrying pathogens and bioaerosols, and conducting studies to determine whether site restrictions for Class B achieve intended effects for pathogen levels. The NRC also recommended that EPA not allow provisions for distributing Class A biosolids in bags or other containers (weighing less than one metric ton) when they do not meet pollutant concentration limits (
Other NRC recommendations include considering additional indicator organisms (
EPA currently uses a technology and management practices based approach to minimize pathogen exposure. The Agency is considering studies to better understand the measurement, control, and fate of pathogens during the production and land application of sewage sludge. Such studies include improved analytical methods, evaluation of treatment and application processes, site-specific pathogen occurrence studies, potential human health impacts, exposure assessment, and risk assessment.
Certain pathogen studies are discussed in the Methods Development subsection of this notice. Where other studies address several pathogen issues (
In June 2001, EPA and USDA sponsored a workshop on “Emerging Pathogen Issues in Biosolids, Animal Manures, and Other Similar By-Products” (USEPA 2003 in press). The workshop assembled experts in biosolids and animal waste management to review the state-of-the-science, resolve persistent and complex issues, and provide suggestions for research. The workshop considered: viruses, bacteria, protozoa, prions, fungi, and helminth ova; migration of pathogens to groundwater and air from recycling and treatment operations; qualitative identification and detection methods for pathogens; the fate of antibiotics in animal and human wastes; pathogen resistance to antibiotics; and susceptibility of people with immuno-suppressed conditions to pathogens.
A discussion of recently initiated EPA work concerning pathogens at five biosolids and three animal manure production and/or application sites is provided in the previous Exposure category.
The Agency has completed and is conducting additional studies on exposure and occurrence of disease which are described in the Risk Assessment and Human Health subsections of this Section VII. In a collaboration with Duke University, EPA has also published a report on the relationship between odor from animal and waste water residuals processing facilities and land application sites and potential health effects (Journal of Agromedicine, Volume 7(1), 2000, ISSN: 1059-924X). The report summarizes the state of knowledge on ambient odor health effects with emphasis on animal manure and biosolids odor emissions. Potential mechanisms for health symptoms, methods for validating health symptoms, presence of odor, and efficacy of odor management are discussed. The importance of health effects was found to be dependent upon a number of factors, and health impacts may be minimized using odor remediation methods.
The University of Arizona's, National Science Foundation, Water Quality Center (
The Water Environment Research Foundation (WERF), with contributions from EPA, is funding a diverse research program to support the wastewater treatment industry. An important part of their program has been supporting research on biosolids that has been aimed at reducing uncertainties and hence is significant with respect to the NRC recommendations. Treatment plant residuals and biosolids, including pathogen issues, have consistently ranked among the top five priorities for WERF subscribers over the past decade. WERF biosolids research entails more than 40 basic and applied projects to reduce uncertainties, better manage biosolids, assess public perception of risks, and develop strategies for biosolids treatment and management. Much of WERF's research is focused on the beneficial uses of biosolids. The Research of particular interest includes methods for rapidly detecting pathogens. EPA plans to continue to review and evaluate such research projects as they are completed to determine their relevancy to the national biosolids program.
Other studies supported by WERF are intended to determine biosolids land application rates. Phosphorus overload in animal manure and biosolids is a particular concern. These studies are evaluating phosphorus bioavailability and Class A and Class B pathogens to determine potential impact on groundwater and other environmental media. WERF is convening a biosolids research summit in the summer of 2003. A WERF pre-summit will provide training about mutual gains activities and joint fact finding, and will develop a protocol for guiding the assistance of an information sharing group (comprised of the concerned citizens, as well as stakeholders) in recommending WERF-sponsored research and oversight needs. EPA plans to collaborate with WERF and the USDA to sponsor an international conference on sustainable land application for municipal and industrial effluents, manures, biosolids and other non-hazardous wastes. The conference, scheduled for January 2004, will provide information and perspectives on research gaps and needs. Detailed information on the WERF biosolids research program may be accessed at
Potential future pathogens activities will include analytical methods development, exposure and risk assessment. The Agency is also considering continuing site-specific evaluations of current treatment and land application processes, studies of wastewater treatment sludge stabilization during biosolids production to reduce odors and vectors, and the use of pilot-scale treatment units to optimize sludge treatment techniques for pathogen and chemical control.
The NRC recommended that the Agency conduct response incident investigations, targeted exposure surveillance, and well-designed epidemiological investigations of exposed populations. Data from these studies would be used to provide a means of documenting whether health effects exist that can be linked to biosolids exposure.
The NRC also recommended that preplanned exposure assessment studies characterize exposure of workers and the general public who come into contact with biosolids either directly or indirectly. Such studies could include the identification of microorganisms and chemicals, the selection of measurement methods for field samples, and the collection of adequate samples in appropriate scenarios.
Further, the NRC recommended that epidemiological studies of biosolids use be designed to provide evidence of a causal association, or lack thereof, between biosolids exposure and adverse human health effects. These studies could include an assessment of the occurrence of disease and an assessment of potential exposures. Because large scale and comprehensive epidemiological studies are expensive and require extensive data analysis, priority could be given to studies that can help reduce uncertainty.
At this time, the Agency does not plan to conduct an epidemiological study, as discussed in the NRC report. As noted by the NRC, comprehensive epidemiological studies are complex, time consuming, and require substantial additional funding. The Agency may assess the future need for epidemiological studies, but believes targeted human health studies (
The University of Arizona's National Science Foundation, Water Quality Center, may also join cooperatively in the USDA/EPA/State of PA study to evaluate risk from exposure to pathogens, particulates, endotoxins, and odors from farm fields and other agricultural and silvicultural settings upon which biosolids, animal manures, and other organic amendments have been applied. These cooperative studies will evaluate various application sites, terrain, climate, placements of receptor populations and downwind ambient air concentrations of pathogens and volatile organic chemicals near residents. The Agency plans to evaluate if the collected data can be used to develop models for estimating exposure of human populations downwind of these sites, which might then be used in predictive risk assessment applications.
The NRC recommended that EPA revise or develop regulatory criteria for biosolids in a timely fashion and identify additional regulatory mechanisms to better protect human health and the environment from the exposure to land-applied biosolids. This recommendation includes the following components: a review of biosolids protocols used by other nations, adoption of national standard treatment design criteria, a refinement of stabilization controls correlated to outcomes using metabolic techniques, development of molybdenum standards, development of a quantitative microbial risk assessment (QMRA) to establish regulatory criteria for pathogens, studies to determine whether the management practices specified in the Part 503 rule achieve their intended effect, provisions for the distribution of Class A biosolids weighing less than 1 metric ton (
The NRC also recommended that EPA consider additional risk-management practices when revising the part 503 rule. Considerations should include limitations on holding or storage practices, slope restrictions, soil permeability and depth to groundwater, and setbacks to residences or businesses, surface water, and drinking water supplies.
EPA also has information indicating that virtually no biosolids products are sold or given away in bags or other containers unless they comply with the pollutant concentrations for the nine metals currently regulated and the pathogen and vector attraction reduction requirements, which allows these products to be classified as exceptional quality (EQ) as described in the EPA guidance (USEPA, 1994). EPA plans to evaluate the data during the current year to determine whether to amend part 503 to eliminate the non-EQ Table 4 alternative for selling and distributing biosolids products that are sold or given away in bags or other containers weighing less than one metric ton.
The establishment of national standard treatment design criteria may not result in application of the most efficient site-specific practices for protecting public health. The additional management practices recommended by the NRC are linked to site-specific, or local-level, conditions. Examples include topography, soil characteristics, climate, population density, land-use, depth to groundwater, and proximity to surface waters. States and local jurisdictions will have better knowledge of local conditions, and are in a better position to establish additional management practices to augment the protectiveness of the part 503 Standards. However, EPA also plans to evaluate such practices to determine if additional requirements or improvements in the Part 503 Rule are warranted.
The Part 503 Standards are based on information for pollutants found in sewage sludge, and are risk-based as directed by section 405(d) of the Clean Water Act. As such, the Part 503 Standards consist of numerical limits with adequate margins of safety to protect public health and the environment. The Part 503 numerical standards are based on a conservative set of exposure pathway and risk assessment assumptions.
In contrast, international sewage sludge standards are based on differing legal frameworks. Therefore, sewage sludge regulation promulgated by some other countries may not be comparable to EPA's authority or standards under section 405 of the CWA. However, numerous other countries have supported the quantitative risk assessment approach and have often adopted Part 503 limits for regulating biosolids.
The NRC recommended that the Agency increase the resources devoted to its biosolids program and expand biosolids management activities. Specific recommendations were made to increase funding to States to implement programs, fund, support, and officially sanction EPA's Pathogen Equivalency Committee (PEC) as part of the EPA biosolids program, and strike a balance between expending resources on new site-specific data collection and expending resources to model and assess risk using existing information.
The NRC also recommended biosolids management activities in the following areas: expand and strengthen the oversight program, track allegations and sentinel events of adverse health effects from exposure to land-applied biosolids, and conduct studies to determine whether the management practices specified in Part 503 achieve their intended effect.
Furthermore, the NRC recommended that the Agency develop a procedural framework to implement human health investigations and to verify that (1) treatment technologies for pathogen control are effective (quality control), (2) chemical standards are met (compliance audits), and (3) unanticipated hazards are identified.
States have their own oversight programs, some of which are quite comprehensive. There are a total of about 150 full time equivalent State employees assigned to their respective biosolids programs. Five States have
EPA continues to meet its statutory obligations under the Clean Water Act (CWA) pertaining to sewage sludge. The Agency continues to believe that land application of biosolids is an appropriate choice for communities, when conducted in compliance with EPA regulations. Given present scientific knowledge, EPA has based the allocation of resources to biosolids compliance and enforcement on its assessment of the relative risks to public health and the environment that are posed by biosolids.
Regions and States have the flexibility and responsibility to address situations where compliance assistance and enforcement actions to address biosolids are appropriate and necessary. EPA has taken enforcement actions and/or appropriate administrative remedies to address biosolids violations of 40 CFR part 503 and will continue to take actions to address instances where biosolids pose an imminent and substantial endangerment to human health or the environment. EPA will reconsider resources devoted to biosolids if additional research and science demonstrate greater risk.
To assist the States and Regions in their oversight of the biosolids program, EPA has, either in place or in development, tools to assist and promote compliance with biosolids regulatory requirements. The National Pollutant Discharge Elimination System (NPDES) Compliance Inspection Manual, which is used by EPA and State inspectors to perform inspections in the field, includes a “Sludge (Biosolids)” chapter (Chapter 10). This manual has just undergone major revisions and updating by a Headquarters and regional workgroup; the Manual is being distributed as a final draft for regional and program office review. Electronic training modules, including a module for biosolids inspections, are planned to be available shortly after the release of the revised manual, in Summer 2003.
Additionally, there are two compliance assistance web sites, which are available for biosolids compliance studies, information and tools, and for links to other sites with pertinent biosolids compliance information. One is the National Environmental Compliance Assistance Clearinghouse at:
In the area of data systems, EPA is continuing to work with States as it modernizes the Permit Compliance System (PCS) to allow for more effective program oversight. While PCS is the national data system for the NPDES permit program, it currently requires only limited biosolids data. As part of the PCS modernization, a separate workgroup (including States and EPA) was devoted to the data needed to manage the biosolids program. This workgroup examined data in State systems, Biosolids Data Management System (BDMS) and PCS, and considered incorporating BDMS into PCS. The recommendations of this workgroup, endorsed by the PCS Executive Council, was not to incorporate or link BDMS, but rather to add data elements to PCS to improve tracking and oversight of the biosolids program.
The BDMS is another source of biosolids data. It was developed in the late 1990s by Region VIII to track biosolids quantity, quality, use, and disposal practices in the Region VIII states. While not the national system of record for biosolids, BDMS is a tool for municipalities in which they can enter data themselves and use the BDMS to develop reports for states, EPA and for citizen review. The BDMS is also a valuable management tool and can be used to record information about reported incidences associated with biosolids land application. The BDMS is available at:
Research by the Water Environment Research Foundation (WERF) is described in the Pathogen and the Human Health Studies categories. WERF also supported a study by the New England Biosolids and Residuals Association (NEBRA) looking at the importance of establishing relationships among researchers, federal government and concerned citizens. This research included a survey on public perceptions and what people know about biosolids, what their concerns are and whether their concerns are being addressed adequately. The study's aim is to suggest ways that regulators and people can work together. A report is due out by mid 2003.
This and other projects will help the Agency gain a better understanding of public perception issues, values, and expectations. EPA can then identify the most effective communication approaches to ensure understanding of the importance of, and need for, proper biosolids management
An Information-Sharing Group (ISG) has been established based upon the concepts developed in WERF studies concerning joint fact-finding research. The ISG is comprised of concerned citizens, health scientists, municipal operators, a farmer, biosolids managers, and input from State and Federal regulatory agencies. The ISG has been established to work jointly with about 25 scientific experts in a large cooperative study of odor, particulates, pathogens, and endotoxins in the air around biosolids and animal manure land application sites. Currently the researchers are from EPA, USDA, the State of PA, and several other organizations. WERF has efforts underway to expand the use of such information-sharing in other research projects.
The National Biosolids Partnership (NBP) is a 48 member alliance formed in 1997 with AMSA (Association of Metropolitan Sewerage Agencies), WEF (Water Environment Federation, and EPA (U.S. Environmental Protection Agency). Through partnering with producers, service contractors, users, regulatory agencies, universities, the farming community, and environmental organization, the goal of the NBP is to advance environmentally sound and accepted biosolids management practices.
Through a voluntary Environmental Management System (EMS), being developed for biosolids by the National Biosolids Partnership (NBP), EPA continues to provide the public with educational information, based on the best science, about the recycling and disposal of biosolids. EPA strongly supports the ongoing efforts of the NBP to develop the EMS and to provide correct and timely information and community-friendly practices that could be followed via its new communications system. The EMS program supports local agencies to find ways to meet and go beyond what is required in state and federal regulations. About 45 municipalities are now pilot-testing their biosolids EMS programs based upon a blueprint developed by the NBP. Several of these municipalities will be ready to undergo an independent third party audit of the EMS program later this year (2003). Municipalities involved in the voluntary EMS program are reporting benefits they have achieved. They report that their participation in the EMS program has resulted in more efficient operation, reduced odors in biosolids, less intrusive transport of the biosolids to land application sites, better communication, and meaningful involvement of the public. The Agency plans to continue supporting NBP activities and working with municipalities on expanding the use of EMS programs in biosolids management. Two NBP Web site address that present relevant biosolids information are
The EPA's Pathogen Equivalency Committee was discussed in the Pathogens subsection. The PEC is instrumental in the development and evaluation of regulatory-related initiatives. EPA will continue to support and evaluate the activities of the PEC.
The priority activities for biosolids presented in this response were evaluated in the larger context of other Agency priorities. The purpose of listing planned activities is to illustrate the Agency's future direction based on current information. Given the activities spelled out in this response, EPA's goal over the next two years is to complete studies and other activities, follow external research, and review available information. The Agency's longer-term goal is to assess results from completed and ongoing activities to determine further research needs. Implementation of various activities will be considered by the relevant EPA Offices and Regions in future priority setting activities.
Section 405(d)(2)(C) of the Clean Water Act requires that EPA review the sewage sludge regulations “for the purpose of identifying additional toxic pollutants and promulgating regulations for such pollutants consistent with the requirements” of section 405(d). EPA has promulgated regulations in 40 CFR part 503 setting numeric standards for certain toxic pollutants in sludge, requirements for pathogen and vector attraction reduction, and operational standards for emissions from sewage sludge incinerators.
As explained in section IV above, EPA commissioned the NRC study of existing sewage sludge land application regulations for the purpose of strengthening the scientific basis of its review under section 405(d)(2)(C). In an agreement with the parties in
In fulfilling this commitment, EPA has performed a comprehensive assessment of the availability of data on chemicals that have been detected in or in some way linked to sewage sludge. EPA reviewed Rounds One and Two screening histories; collected and conducted a preliminary review of publicly available information on chemical toxicity, environmental properties such as mobility and persistence, and concentration; identified chemical pollutants for which appropriate analytical methods and human health benchmarks are available; and made preliminary determinations regarding sufficiency of information for risk-based screening analyses. The results of this review are available in the docket (USEPA, 2003e).
At this time, EPA has not identified any additional toxic pollutants that warrant regulation in sewage sludge. The next step in identifying toxic pollutants that may warrant regulation is to conduct a screening analysis of those chemicals for which adequate data and analytical methods are available and for which there is evidence that they may occur in sewage sludge. EPA plans to complete this screening analysis by January 2004. In addition, EPA is continuing to seek additional information to fill data gaps for those chemicals for which adequate data for the screening analysis is not yet available and would welcome any relevant data from commenters.
The Agency began its review under section 405(d)(2)(C) by first reviewing the complete list of pollutants that were considered in developing the Round One rule and Round Two proposal. For Round One, EPA conducted a National Sewage Sludge Survey (NSSS) in 1988-1989, which included an analysis of 411 pollutants. These 411 pollutants included, among others, every organic chemical including pesticide, dibenzofuran, dioxin and PCB analytes for which EPA had gas chromatography and mass spectrometry (GC/MS) standards (58 FR 9268-9269). Of the original 411 pollutants, EPA promulgated numeric standards in Round One for 10 pollutants (metals) in land-applied sewage sludge, three pollutants (metals) in sewage sludge placed in surface disposal units, seven pollutants in sewage sludge fired in sewage sludge incinerators (SSIs), and an operational standard for total hydrocarbons (or alternatively carbon monoxide) emitted from SSIs.
These same 411 pollutants were the starting point in 1995 for identifying pollutants for developing a Round Two regulation. EPA conducted a preliminary screening analysis which resulted in an identification of 31 pollutants for potential regulation in Round Two. These 31 pollutants were the subject of a comprehensive hazard identification study, which narrowed the list to dioxin, dibenzofurans and
Many of the original 411 pollutants were eventually eliminated for consideration in Round One or Round Two rulemakings; 254 were eliminated because they were not detected in any or in fewer than one percent of the sewage sludge samples surveyed in the NSSS, and others were dropped because of a lack of sufficient information on their toxicity and environmental properties. In particular, 44 of the 411 pollutants, though detected at a frequency of greater than one percent, were dropped from further consideration because of lack of data on human health benchmarks and/or environmental properties. For a more detailed description of the process for Round One and Two, see USEPA, 2002c.
For the current review, EPA again started with the 411 pollutants initially identified for Round One consideration; As mentioned above, 254 of these pollutants were detected at a frequency rate of less than one percent in the 1988-89 NSSS and therefore were dropped from further consideration in both the Round One and Round Two rulemakings. Because the low detection rates for these 254 pollutants could have been due to the limits of the analytical and sampling methodology employed in 1988-89, EPA included these pollutants in the current review for potential addition to the Part 503 Standards. A literature search was performed on these pollutants to identify (1) human health benchmarks, (2) environmental properties, and (3) their presence or concentrations in sewage sludge.
As previously mentioned, 44 of the 411 pollutants considered in the Round One and Round Two rulemaking processes were detected at a frequency of greater than one percent, but were dropped from further consideration because of lack of data on human toxicity and/or environmental properties. EPA has preliminarily determined that 23 of the 44 are either non-toxic or non-persistent in the environment, but is continuing to evaluate them.
Next, EPA conducted a literature search of publicly available information to identify information on pollutants in sewage sludge since 1990, including information on pollutants that were not among the 411 originally identified pollutants. EPA has collected 459 scientific papers from national and international government entities, universities, non-profit and other private entities for the time period of 1990-2002, the date of the last NSSS to the present (USEPA, 2002d). Of these 459 papers, 216 papers concern either the Round One or Round Two pollutants only. The balance of these papers, 243, concern or potentially concern pollutants that were not the subjects of Rounds One or Two. Subsequently, these 243 papers were reviewed to verify which of the papers do in fact concern pollutants which were not the subjects of Rounds One and Two. In addition, these papers were reviewed for human health benchmarks, environmental properties, and presence or concentrations of these pollutants in sewage sludge.
EPA also collected information from EPA databases and several other existing databases with respect to human health benchmarks, and found 170 pollutants with some human health benchmarks among these databases (USEPA, 2002e). These databases include: EPA's Integrated Risk Information System, EPA's Superfund Technical Support Center Provisional Toxicity Values, EPA Health Assessment Documents, California Environmental Protection Agency Chronic Inhalation Reference Exposure Levels and Cancer Potency Factors, Agency for Toxic Substances and Disease Registry Minimal Risk Levels, and Health Effects Assessment Summary Tables.
The next step in this process was to ascertain whether analytical methods exist for detecting and quantifying each of these pollutants in sewage sludge (USEPA, 2002f, USEPA, 2002g, USEPA, 2002h). Although the accuracy, precision, and limits of detection of analytical methodologies for chemical pollutants in the sewage sludge matrix have significantly improved since the 1988-89 NSSS, there are still many pollutants for which no validated analytical methods exist.
In summary, EPA evaluated publicly available information with respect to presence in sewage sludge, toxicity (including human health benchmarks), persistence, mobility and potential for exposure for the pollutants contained in each of the four groups of pollutants described above: (1) The 254 pollutants with a low frequency of detection in the 1988-89 NSSS, (2) the 44 toxic pollutants that were detected at a frequency of greater than one percent in the 1988-1989 NSSS, but that had insufficient information to be able to perform subsequent evaluation, (3) the pollutants that were not the subject of Rounds One or Two but are covered in the 243 papers that turned up in the literature search, and (4) the 170 pollutants for which some health benchmark exists in the literature. These four groups of pollutants as described above were compared to eliminate any duplicates. Finally, EPA evaluated all of these pollutants to determine whether there are sufficiently accurate and precise analytical methodologies with adequate detection limits for these pollutants in the sewage sludge matrix. These results are available in detail in the docket for this notice (USEPA, 2003b).
These preliminary results will be further analyzed, leading to a risk-based screening analysis. The criteria for determining whether to proceed to a screening analysis for any pollutant are whether there are: (1) Adequate and reliable data regarding concentration of the pollutant in sewage sludge, (2) a current human health benchmark, (3) adequate information on environmental properties, such as persistence and mobility, and (4) an appropriate analytical method for the pollutant. In evaluating item 2 above, EPA will focus initially on chemicals for which there is a current peer-reviewed human health benchmark developed by EPA. EPA will next determine the adequacy of the available environmental properties data for use in the risk-based screening analysis.
The results of this screening analysis will serve as a basis for determining whether additional toxic pollutants should be considered for regulation in sewage sludge under section 405(d) of the Clean Water Act. As noted above, EPA has not yet identified any additional pollutants for regulation. Inclusion in the results presented today does not mean that a pollutant has been determined to be present in sewage sludge in concentrations that may adversely affect human health or the environment. Some, or even all, of these chemicals that have been detected in sewage sludge may only be present infrequently or in trace amounts, and may not present a risk of adverse effects to human health or the environment. Also, the properties or degree of toxicity of such chemicals may make their presence, even in higher amounts, of little risk to human health or the environment. As noted above, the NRC concluded that while there are significant data gaps, there is currently no documented scientific evidence that the existing Part 503 regulations have failed to protect public health. These results, however, are an important step forward in that they identify chemicals for which sufficient new information exists to proceed to a risk-based screening analysis, as well as data gaps that must be filled for other chemicals before such a screening analysis can be conducted.
EPA expects to complete its risk-based screening analysis of chemicals for which adequate information is currently available by January 2004. At that time EPA will identify those pollutants, if any, for which EPA plans to initiate a rulemaking under section 405(d). EPA requests comment on the methodology and results to date of its review under section 405(d)(2)(C) of the CWA. EPA also requests information that may help to fill data gaps for those chemicals for which sufficient information is not yet available to conduct a risk-based screening analysis.
While the EPA is requesting comments on all of the information discussed in this Notice, the Agency hopes that the public comment will also focus specifically on the following aspects of this Notice:
1. The Agency's preliminary strategy for responding to the NRC Recommendations, given that the Agency's biosolids program does not have sufficient resources to implement all of the recommendations.
2. EPA requests comment on its review under section 405(d)(2)(C) of the CWA. EPA also requests information that may help to fill data gaps for those chemicals for which sufficient information is not yet available to conduct a risk-based screening analysis.
3. EPA's plan to investigate the possibility of developing a process for timely notification, recording, and tracking incident reports in collaboration with other health-based Federal agencies, such as the Centers for Disease Control and Prevention.
4. The Agency's plan to begin designing a survey using information obtained from published pollutant occurrence and effects data, State occurrence data bases, and input received during the public comment period.
NRC, 1996. Use of Reclaimed Water and Sludge in Food Crop Production. The National Academies Press. Washington, DC. Available online at
University of Arizona, National Science Foundation, Water Quality Center, within the Environmental Research Laboratory. Several studies ongoing. Ian L. Pepper, Director. Tuscon, Arizona.
USEPA, 1994. A Plain English Guide to the EPA Part 503 Biosolids Rule. 190 pages. Office of Water, Office of Wastewater Management. Available online at:
USEPA, 1996. Technical Support Document for the Round Two Sewage Sludge Pollutants. EPA-822-R-96-003. Office of Water. Washington, DC. August, 1996.
USEPA, 2002a. Compilation of National Research Council (NRC) Recommendations on Biosolids and EPA Responses and Activities. 9 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2002b. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency. EPA 260R-02-008. Office of Environmental Information. Washington, DC. October 2002. Available online at
USEPA, 2002c. Screening History for the Part 503 Rounds One and Two Proposal. 4 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2002d. Literature Search of Publicly Available Information to Identify Information on Pollutants in Sewage Sludge Since 1990. 48 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2002e. Human Health Benchmarks for Potential Constituents in Biosolids. 11 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2002f. List of Analytes from the 1989 National Sewage Sludge Survey Found in Less than 1% of the Samples. 7 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2002g. Summary of Analytes from the 1989 National Sewage Sludge Survey. 12 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2002h. Potential Analytes. 5 pages. Office of Water, Office of Science and Technology. Washington, DC.
USEPA, 2003a. In press. Contemporary Perspectives on Infectious Disease Agents In Sewage Sludge and Manure. Compost Science & Utilization/The JG Press, Inc.
USEPA, 2003b. Candidate Pollutants for Ongoing Sewage Sludge Evaluation. 15 pages. Office of Water, Office of Science and Technology. Washington, DC.
WERF, 2003. Dynamic Model to Assess Microbial Health Risks Associated with Beneficial Uses of Biosolids. Cooperative Agreement No. CR-825237. Alexandria, VA.
Federal Communications Commission.
Notice.
In this document, the Commission gives notice of its interim policy concerning the deadline for placement of Equal Employment Opportunity public file reports in stations' public files. This document also gives notice of groups that have filed petitions for reconsideration in this matter regarding requirement modifications.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Lewis Pulley (202) 418-1456, or Roy Boyce (202) 418-1438, Policy Division, Media Bureau.
This is a summary of the Commission's Public Notice, MM Docketa No. 98-204, adopted and released March 31, 2003. The complete text of this Public Notice is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC and may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street SW., Room CY-B-402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via email
1. By this Public Notice the Media Bureau establishes an interim policy concerning the enforcement of the requirement of the Equal Employment Opportunity (“EEO”) rule—§ 73.2080—that a broadcaster that is part of an employment unit with five or more full-
2. Petitions for reconsideration have been filed by two groups of State Broadcasters Associations urging, among other matters, that the requirement should be modified to allow a ten day grace period for the specified information to be placed in the public file because broadcasters may not have sufficient time to collect and review data concerning activities that occur shortly before the renewal filing anniversary. The Commission will address the merits of these requests in due course. We will adopt an interim enforcement policy of allowing a ten day grace period with respect to EEO public file reports due April 1, 2003. Thus, licensees that must place an EEO report in their public files on April 1, 2003, will comply with the deadline so long as the reports are placed in the public file by April 11, 2003.
3. Thereafter, until such time as the Commission acts on the petitions for reconsideration, licensees should place EEO public file reports in their public files by the due date. They may, however, base their public file reports on activity that concludes up to 10 days prior to the due date. Licensees who choose to conclude their reports prior to the day before the due date should include any reportable information occurring between their cutoff date and the due date in next year's public file report.
Federal Communications Commission.
Petition for Reconsideration has been filed in the Commission's rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR section 1.429(e). The full text of this document is available for viewing and copying in Room CY-A257, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Qualex International (202) 863-2893. Oppositions to this petition must be filed by April 24, 2003.
1998 Biennial Regulatory Review—Streamlined Contributor Reporting Requirements Associated with Administration of Telecommunications Relay Service, North American Numbering Plan, Local Number Portability, and Universal Service Support Mechanisms (CC Docket No. 98-171).
Telecommunications Services for Individuals with Hearing and Speech Disabilities, and the Americans with Disabilities Act of 1990 (CC Docket No. 90-571).
Administration of the North American Numbering Plan and North American Numbering Plan Cost Recovery Contribution Factor and Fund Size (CC Docket No. 92-237).
Number Resource Optimization (CC Docket No. 99-200).
Telephone Number Portability (CC Docket No. 95-116).
Truth-in-Billing and Billing Format (CC Docket No. 98-170).
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 hereby given that the following applicants have filed with the Federal Maritime Commission an
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Board of Governors of the Federal Reserve System
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions, including whether the information has practical utility;
b. the accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. ways to enhance the quality, utility, and clarity of the information to be collected; and
d. ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments must be submitted on or before June 9, 2003.
Comments may be mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, DC 20551. However, because paper mail in the Washington area and at the Board of Governors is subject to delay, please consider submitting your comments by e-mail to
A copy of the comments may also be submitted to the OMB desk officer for the Board: Joseph Lackey, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
A copy of the Paperwork Reduction Act Submission (OMB 83-I), supporting statement, and other documents that will be placed into OMB's public docket files once approved may be requested from the agency clearance officer, whose name appears below.
Cindy Ayouch, Federal Reserve Board Clearance Officer (202-452-3829), Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may contact (202-263-4869), Board of Governors of the Federal Reserve System, Washington, DC 20551.
Small businesses are affected.
In 2000, the Federal Reserve, along with the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision (OTS), National Credit Union Administration (NCUA), Federal Trade Commission (FTC), and Securities and Exchange Commission (SEC) ("the agencies") jointly agreed on burden estimates when they promulgated the privacy regulations.
In early 2003, an inter-agency working group
Board of Governors of the Federal Reserve System, April 3, 2003.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 24, 2003.
Board of Governors of the Federal Reserve System, April 4, 2003.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 5, 2003.
Board of Governors of the Federal Reserve System, April 4, 2003.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later thanof Governors not later than April 23, 2003.
Board of Governors of the Federal Reserve System, April 3, 2003.
Public Buildings Service (P), GSA.
Notice of a bulletin.
The attached bulletin announces the redesignation of a Federal Building.
Paul Chistolini, General Services Administration, Public Buildings Service (P), Washington, DC 20405; at (202) 501-1100, or by e-mail at
1.
2.
3.
4.
General Services Administration, Public Buildings Service, Office of the Commissioner, Attn: Paul Chistolini, 1800 F Street, NW., Washington, DC 20405, Telephone Number: (202) 501-1100, E-mail Address:
International Trade Commission.
Correction of notice of investigation.
Due to a typographical error, the Commission's notice published in the
By order of the Commission.
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
In this action, the United States sought assessment of civil penalties for
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, Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Southern District of West Virginia, 3000 Virginia Street, Suite 4000, Charleston, West Virginia 25301; and at U.S. Environmental Protection Agency, Region III Office, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given that on April 1, 2003, a proposed consent decree (“decree”) in
In this action, the United States sought civil penalties for seven recent and significant spills from Colonial Pipeline Company's (“Colonial”) 5,500 mile pipeline. The United States also sought injunctive relief to prevent future spills. Under the decree, Colonial will pay a $34 million civil penalty for seven spills that spilled 1.45 million gallons of oil from its pipeline into waters in five states. The $34 million civil penalty will go to the United States' Oil Pollution Liability Trust Fund, which underwrites cleanups nationwide.
Colonial will also require Colonial to designate its entire pipeline as potentially affecting “high consequence areas.” This will subject the entire pipeline to the pipeline integrity regulations of the U.S. Department of Transportation's Office of Pipeline Safety (“OPS”). Under the terms of the settlement, Colonial is also required to (1) inspect its corrosion protection system along the entire pipeline system every five years; (2) repair problems detected in the corrosion protection system to meet the standards developed by the National Association of Corrosion Engineers (NACE); (3) maintain its right-of-ways, including mowing and removing debris; (4) have personnel on site when utility or other excavation is occurring within five feet of the pipeline; and (5) survey and inspect the pipeline where it crosses water, and address areas of the pipeline that are exposed or insufficiently buried.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The decree may be examined at the Office of the United States Attorney, U.S. Courthouse, Suite 1800, 75 Spring Street, SW., Atlanta, Georgia 30303, and at U.S. the U.S. Environmental Protection Agency—Region IV, Atlanta Federal Center, 61 Forsythe Street, Atlanta, Georgia 30303. During the public comment period, the decree may also be examined on the following Department of Justice Web site,
Under 28 CFR § 50.7, notice is hereby given that on March 13, 2003, a proposed Consent Decree in
In this action the United States sought civil penalties and injunctive relief for the defendants' alleged discharges of untreated sewage from 471 pump stations throughout the Commonwealth of Puerto Rico and for the alleged failure to report certain discharges in violation of section 301(a) and 402 of the Clean Water Act, 33 U.S.C. 1311(a) and 1342. The proposed Consent Decree provides for the payment of a $1 million civil penalty by PRASA and Compañia de Agusa de Puerto Rico, its former operator by contact, as well as the performance of a Supplemental Environmental Project (“SEP”) by PRASA. The SEP is valued at $1 million and is designed to improve drinking water quality for certain communities which are not presently hooked up to PRASA water filtration systems. The proposed Consent Decree also requires PRASA and its current operator by contract, ONDEO de Puerto Rico, to develop and implement an EPA-approved system-wide operation and maintenance and spill response and cleanup plan for all pump stations owned by PRASA, as well as to perform
The Department of Justice will receive for a period of thirty (30) days from the date of this publciaton comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney for the District of Puerto Rico, Federal Office Building, Room101, Carlos E. Chardon Avenue, Hato Rey, Puerto Rico 00918, and at U.S EPA Region II, Caribbean Environmental Protection Division, 1492 Ponce de Leon Avenue, Suite 207, San Juan, Puerto Rico 00907. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), notice is hereby given that the Civil Division, Department of Justice, is establishing a new system of records entitled “Annuity Brokers List System” Civil Division (CIV), JUSTICE/CIV-005.
The Annuity Brokers List System is established to support the production and maintenance of a list of annuity brokers as required by the “21st Century Department of Justice Appropriations Authorization Act”. Section 11015(a) of the statute provides “Not later than 6 months after the date of enactment of this Act, the Attorney General shall establish a list of annuity brokers who meet minimum qualifications for providing annuity brokerage services in connection with structured settlements entered by the United States. This list shall be updated upon request by any annuity broker that meets the minimum qualifications for inclusion on the list. The Attorney General shall transmit such list, and any updates to such list, to all United States Attorneys.” This notice is published in accordance with that statutory requirement.
The Department is providing a report to OMB and the Congress.
Annuity Brokers List System.
None.
Civil Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530; Department of Justice—Records Management Unit, 2711 Prosperity Avenue, Fairfax, VA 22031; and Federal Records Center, Suitland, MD 20409.
Individuals who are seeking to be included in the list of annuity brokers mandated by section 11015 of the “21st Century Department of Justice Appropriations Authorization Act.”
Records in this system include: declarations filed by annuity brokers and associated correspondence.
Public Law 107-273, 21st Century Department of Justice Appropriations Authorization Act, Section 11015(a).
These records are collected and maintained for the purpose of establishing a list of annuity brokers who meet minimum qualifications for providing annuity brokerage services in connection with structured settlements entered by the United States.
None.
None.
Paper records are maintained in filing cabinets. Automated data, including records that have been transformed into electronic form, are stored on computer discs or magnetic tapes, which are also stored in cabinets.
Files and automated data are retrieved by name of an individual.
Files and automated data are maintained under supervision of Civil Division personnel or their contractors. During working hours—only authorized personnel, with the appropriate authority may handle, retrieve, or disclose any information contained therein. Access to electronic records is controlled by password or other user identification code.
A request for authority to maintain and dispose of annuity broker list records has been submitted to the National Archives and Records Administration and is pending. In the interim, all records received will be retained and no records will be destroyed.
Office of the Assistant Attorney General, Civil Division, 950 Pennsylvania Avenue, NW., Washington, DC 20530.
Address inquiries to: Office of the Assistant Attorney General, Civil Division, 950 Pennsylvania Avenue, NW., Washington, DC 20530.
Individuals seeking access to information about their records may write to the Office of the Assistant Attorney General, Civil Division, 950 Pennsylvania Avenue, NW., Washington, DC 20530. The request should state what records are sought and must include the requester's full name and current address. The request must be signed before a notary or signed, dated and submitted under penalty of perjury.
Individuals desiring to contest or amend information maintained in the system should direct their request to the Office of the Assistant Attorney General, Civil Division, 950 Pennsylvania Avenue, NW., Washington, DC 20530. The request should clearly and concisely state what information is being contested, the reason(s) for contesting it, and the proposed amendment to the record.
Individuals submitting information who are seeking to be included in the Department of Justice list of annuity brokers.
None.
By Notice dated August 28, 2002, and published in the
The firm plans to manufacture small quantities of the listed controlled substances to make reference standards.
No comments or objections have been received. DEA has considered the factors in Title 21, United States Code, section 823(a) and determined that the registration of AccuStandard, Inc. to manufacture the listed controlled substances is consistent with the public interest at this time. DEA has investigated AccuStandard, Inc. to ensure that the company's registration is consistent with the public interest. This investigation included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823 and 28 CFR 0.100 and 0.104, the Deputy Assistant Administrator, Office of Diversion Control, hereby orders that the application submitted by the above firm for registration as a bulk manufacturer of the basic classes of controlled substances listed is granted.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on February 14, 2003, Boehringer Ingelheim Chemicals, Inc., 2820 N. Normandy Drive, Petersburg, Virginia 23805, made application by renewal, and on November 27, 2002, made application by renewal, and on November 27, 2002, made application by letter to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of the basic classes of controlled substances listed below:
The firm plans to manufacture the listed controlled substances for formulation into finished pharmaceuticals.
Any other such applicant and any person who is presently registered with DEA to manufacture such substances may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537; Attention: Drug Operations Section, Domestic Drug Unit (ODOD) and must be filed no later than June 9, 2003.
Pursuant to section 1008 of the Controlled Substances Import and Export Act (21 U.S.C. 958(i)), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substances in Schedule I or II and prior to issuing a registration under section 1002(a) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with § 1301.34 of Title 21, Code of Federal Regulations (CFR), notice is hereby given that on February 14, 2003, Boehringer Ingelheim Chemicals, Inc. 2820 N. Normandy Drive, Petersburg, Virginia 23805, made application by renewal to the Drug Enforcement Administration to be registered as an importer of Phenylacetone (8501), a basic class of controlled substance listed in Schedule II.
The firm plans to import Phenylacetone for the bulk manufacture of amphetamine.
Any manufacturer holding, or apply for, registration as a bulk manufacturer of this basic class of controlled substance may file written comments on or objections to the application described above and may, at the same time, file a written request for a hearing on such application in accordance with 21 CFR 1301.43 in such form as prescribed by 21 CFR 1316.47.
Any such comments, objections, or requests for a hearing may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Drug Operations Section, Domestic Drug Unit (ODOD), and must be filed no later than May 9, 2003.
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e), (f). As noted as a previous notice at 40 FR 43745-46 (Sepember 23, 1975), all applicants for registration to import basic class of any controlled substance in Schedule I or II are and will continue to be required to demonstrate to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration that the requirements for such registration pursuant to 21 U.S.C. 958(a), 21 U.S.C. 823(a), and 21 CFR 1311.452(a), (b), (c), (d), (e), and (f) are satisfied.
By Notice dated October 5, 2001, and published in the
The firm plans to manufacture the listed controlled substance for formulation into finished pharmaceuticals.
No comments or objections have been received. DEA has considered the factors in Title 21, United States Code, Section 823(a) and determined that the registration of, Boehringer Ingelheim Chemicals, Inc., to manufacture the listed controlled substances is consistent with the public interest at this time. DEA has investigated Boehringer Ingelheim Chemicals, Inc. to ensure that the company's registration is consistent with the public interest. This investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823 and 28 CFR 0.100 and 0.104, the Deputy Assistant Administrator, Office of Diversion Control, hereby orders that the application submitted by the above firm for registration as a bulk manufacturer of the basic classes of controlled substances listed above is granted.
On November 4, 1999, and pursuant to 21 U.S.C. 823(a), the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to the Church of the Living Tree (Respondent) of Leggett, California, proposing to deny its application for DEA Certificate of Registration as a manufacturer of marijuana, a Schedule I controlled substance. The Order to Show Cause alleged that the pending application should be denied because the Respondent's proposed manufacture and distribution of marijuana for human consumption was a purpose not in conformity with the provisions of the Controlled Substances Act, under 21 U.S.C., section 2 812(b)(1), 822(b), 823(f)(4), and 841(a)(1).
By letter dated November 26, 1999, the Respondent, through its trustee John Stahl (Mr. Stahl), timely filed a request for a hearing on the issues raised by the Order to Show Cause, stating, in part, that Respondent sought “* * * to cultivate cannabis sativa for purposes which are allowable under California Law, and to process the remaining stalk into pulp for our paper mill.” Through inadvertence, this request was not docketed for a possible hearing. As a result, the then-Deputy Administrator of the DEA issued a final order finding that Respondent had not responded to the Order to Show Cause and denying
On October 23, 2000, the Government filed a Motion for Summary Disposition, reiterating the allegations contained in the Order to Show Cause and further alleging, in part, that the manufacture of marijuana for human consumption is a purpose not in conformity with the Controlled Substance Act. The Government further argued that DEA rejected a previous petition to reschedule marijuana when it found that the drug has no currently accepted medical use. Marijuana Scheduling Petition; Denial of Petition; Remand, 59 FR 10,499, 10,507 (1992). The Government added that because the Respondent's previous DEA application for registration as a marijuana manufacturer was denied, the Respondent is now precluded from re-litigating the matter in its renewed effort to obtain a similar registration under the doctrine of res judicata. Robert A. Leslie, M.D., 64 FR 25,908 (1999); Robert M. Golden, M.D., 63 FR 38,669 (1998).
On November 1, and December 1, 2000, the Respondent filed its Response to Motion for Summary Disposition and Further Response to Motion for Summary Disposition respectively. In its submissions, the Respondent argued in essence that it “* * * intended to cultivate medical marijuana as a cooperative farm of * * * patients qualifying under the terms of the Compassionate Use Act of 1996 (the Compassionate Use Act).” As noted in a previous DEA final order, effective November 6, 1996, voters in California adopted the Compassionate Use Act, which provides that persons may grow or posses marijuana “upon the written or oral recommendation or approval of a physician.” Cal. Health & Safety Code section 11362.5 Marion “Molly” Fry, M.D., 67 FR 78015, 78017 (2002). The Respondent further argued in relevant part that California's marijuana law should be given deference by the Federal Government, and the Government's motion for summary disposition rejected, since there remained a fundamental question for resolution by the instant proceedings: whether Respondent's application should denied despite its engaging in activities that are now sanctioned under California state law (
On April 17, 2001, Judge Bittner issued her Opinion and Recommended Decision, granting the Government's Motion for Summary Disposition and recommending that Respondent's application for DEA registration be denied. Neither party filed exceptions to Judge Bittner's recommended ruling, and on June 12, 2001, the record was transmitted to the Deputy Administrator for his final decision. The Deputy Administrator has considered the record in its entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order based upon findings of fact and conclusions of law as hereinafter set forth. The Deputy Administrator adopts the Opinion and Recommended Decision of the Administrative Law Judge, and finds as follows:
On January 21, 1997, the Respondent submitted a prior application to DEA as a manufacturer of marijuana for human consumption. The Respondent proposed to rent space on its property to individuals qualifying under California State law as medical marijuana patients, who would then cultivate marijuana for personal consumption, leaving the mature stalks for Respondent to process into paper. On April 17, 1998, DEA issued an Order to Show Cause seeking to deny the application on grounds that the Respondent was not authorized by the State of California to cultivate marijuana. The Respondent filed a timely request for hearing, and the matter was docketed before Judge Bittner as Church of the Living Tree, DEA Docket No. 98-26 (Church of the Living Tree 1). On May 21, 1998, the Government filed a motion summary disposition, alleging inter alia, that California law did not permit cultivation or harvesting of marijuana, and as a result of Respondent's lack of state authorization to manufacture marijuana for non-human consumption, DEA could not grant its application for registration as a matter of law.
In response to the Government's motion, and with arguments similar in scope to its present request for registration, the Respondent asserted in relevant part that the purpose of its application as a bulk manufacturer of medical marijuana was decidedly “for Human Consumption” and in compliance with California law. On July 31, 1998, Judge Bittner issued a recommended decision, in which she granted the Government's motion for summary disposition and recommended that the Respondent's application be denied.
In his final order published as Church of the Living Tree, 63 FR 69,674 (1998), the then-Deputy Administrator found that from a reading of the Respondent's marijuana manufacturing proposal, “* * * it is clear that Respondent will be renting space on its property to others, but [Respondent] will not be the one manufacturing marijuana. Therefore * * * since Respondent will not be manufacturing marijuana nor is it proposing to manufacture marijuana, its application to be a manufacturer of marijuana must be denied.” 21 U.S.C. 822(a) and 823(a). The then-Deputy Administrator added, “* * * if Respondent's application is for registration to manufacture marijuana for non-human consumption, then it would have to be denied because California does not allow the cultivation of marijuana for non-human consumption.”
As noted above, on June 18, 1998, the Respondent submitted its most recent application for DEA registration as a manufacturer of marijuana in the category of bulk synthesizer-extractor. In support of the application, the Respondent asserted that its intentions are to cultivate medical marijuana as a cooperative farm of California patients qualifying under the terms of the Compassionate Use Act of 1996. The Respondent further contends that Art.I, sec. 8 and the Tenth Amendment to the United States Constitution provides the right to States to regulate their internal affairs. Therefore Respondent argues, since the proposes uses for its registration complies with California law, Respondent's pending application should be granted.
In the April 17, 2001, Opinion and Recommended Decision, Judge Bittner found that while Respondent seeks registration as a bulk synthesizer-extractor of marijuana, and although the Respondent is apparently willing to modify its application to the “non-human consumption” category, the Respondent's application cannot be granted under either category. The Deputy Administrator concurs with this finding. DEA concluded in Church of the Living Tree I that if Respondent rents out space to medical marijuana patients to cultivate marijuana, Respondent will be the entity doing the cultivation and therefore cannot be registered as a bulk synthesizer-extractor of marijuana. With respect to its instant application, the Respondent has not indicated that it seeks registration for purposes of growing marijuana for non-human consumption. In any event, there remains a lack of evidence before the Deputy Administrator that California law provides for the cultivation of marijuana for non-human consumption.
The Respondent has once again submitted an application for registration
The deleterious effects of marijuana use have been outlined extensively in previous DEA final orders and will not be repeated at length here. Marion “Molly” Fry, M.D. at 79015.
Marijuana was placed in Schedule I for the same fundamental reason that it has never been approved for sale by the FDA; there have never been any sound scientific studies which demonstrate that marijuana can be used safely and effectively as medicine. See 66 FR 20038 (April 18, 2001) (DEA final order denying petition to initiate proceedings to reschedule marijuana). The Supreme Court recently explained the legal significance of marijuana's placement in Schedule I of the CSA:
Whereas some other drugs (those in Schedules II through V) can be dispensed and prescribed for medical use,
Federal law prohibits human consumption of marijuana outside of FDS-approved, DEA registered research.
In light of the Respondent's pending DEA application which by law cannot be granted, the Deputy Administrator concurs with Judge Bittner that there are no material disputed facts in this matter. Accordingly, the Government's motion for summary disposition was properly entertained and granted. It is well settled that when no question of material fact is involved, or when the material facts are agreed upon, a plenary, adversary administrative proceeding involving evidence and cross-examination of witnesses is not obligatory. The rationale is that Congress does not intend administrative agencies to perform meaningless tasks. See Gilbert Ross, M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 48 FR 32,887 (1983),
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration submitted by the Church of the Living Tree, be, and it hereby is, denied. This order is effective April 9, 2003.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on November 13, 2002, Dade Behring Inc., Route 896 Corporate Boulevard, Building 100, Attn: RA/QA, P.O. Box 6101, Newark, Delaware, 19714, made application by letter to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of the basic classes of controlled substances listed below:
The firm plans to produce bulk products used for the manufacture or reagents and drug calibrator/controls, DEA exempt products.
Any other such applicant and any person who is presently registered with DEA to manufacture such substances may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Drug Operations Section, Domestic Drug Unit (ODOD) and must be filed no later than 60 days from publication.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on August 20, 2002, Syva Company, Dade Behring Inc., Regulatory Affairs Department E1-310, 20400 Mariana Avenue, Cupertino, California, 95014, made application by letter to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of the basic classes of controlled substances listed below:
The firm plans to produce bulk products used for the manufacture of reagents and drug calibrator/controls, DEA exempt products.
Any other such applicant and any person who is presently registered with DEA to manufacture such substances may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug
On November 19, 2002, the Deputy Assistant Administrator, office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to James Harris, P.A. (Mr. Harris) of Henderson, Nevada, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, MH0604846, as a physician's assistant under 21 U.S.C. 824(a)(3), and deny any pending applications for renewal of that registration, pursuant to 21 U.S.C. 823(f) for reason that Mr. Harris is not authorized to handle controlled substances in the State of Nevada. The order also notified Mr. Harris that should no request for a hearing be filed within 30 days, his hearing right would be deemed waived.
The Order to Show Cause was sent by certified mail to Mr. Harris at a residential location in Henderson, Nevada and DEA received a signed receipt indicating that it was received on December 5, 2002. DEA has not received a request for hearing or any other reply from Mr. Harris or anyone purporting to represent him in this matter.
Therefore, the Deputy Administrator, finding that (1) 30 days have passed since the receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that Mr. Harris is deemed to have waived his hearing right. After considering material from the investigative file in this matter, the Deputy Administrator new enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that on March 13, 2002, the Nevada State Board of Medical Examiners (the Board) issued Findings of Fact, Conclusions of Law and Order in response to a complaint filed against the physician assistant license of Mr. Harris. The Board found
There is no evidence in this investigative file that the Board's revocation order has been stayed or lifted, nor is there evidence that Mr. Harris' physician assistant license to practice medicine in the State of Nevada has been reinstated. Therefore, the Deputy Administrator finds that since Mr. Harris is not currently authorized to practice medicine in Nevada, it is reasonable to infer that he is not authorized to handle controlled substances in that state.
DEA does not have statutory authority under the Controlled Substances Act to issue or maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he conducts business.
Here, it is clear that Mr. Harris is not licensed to handle controlled substances in Nevada, where he is registered with DEA. Therefore, he is not entitled to maintain that registration.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration, MH0604846, issued to James E. Harris, P.A., be, and it hereby is, revoked. The Deputy Administrator further orders that any pending applications for renewal of such registration be, and they hereby are, denied. This order is effective May 9, 2003.
On October 5, 2001, the Deputy Assistant Administrator, Office of Division Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Island Wholesale, Incorporated (Respondent), proposing to deny its application, executed on March 31, 2000, for DEA Certificate of Registration as a distributor of the list I chemicals ephedrine and pseudoephedrine. The Order to Show Cause alleged that granting the Respondent's application would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(h).
The Order to Show Cause was delivered to the Respondent by certified mail, and the Respondent timely requested a hearing. However, after the matter was docketed before Administrative Law Judge Gail A. Randall (Judge Randall), and the Government submitted its Prehearing Statement, the Respondent, through its legal counsel, withdrew its opposition to the denial of its DEA application for registration. In response to the Respondent's request, Judge Randall also found that the Respondent had likewise withdrawn its request for hearing. Accordingly, on April 18, 2002, Judge Randall issued a Termination Order terminating all matters before her and the matter was subsequently transmitted to the Deputy Administrator for Final Agency Decision.
In light of the withdrawal of its request for hearing, the Deputy Administrator finds that the Respondent has waived its hearing right. Aqui Enterprises, 67 FR 12576 (2002). After considering relevant material from the investigative file in this matter, the Deputy Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46. The Deputy Administrator finds as follows:
List I chemicals are those that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine and ephedrine are list I chemicals that are commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
The Deputy Administrator's review of the investigative file reveals that the Respondent is a small candy distributor located in Brooklyn, New York. The Respondent is owned by Fouad Twaiti, and his brother, Ali Twaiti serves as its manager. As part of a pre-registration investigation, DEA Division Investigators met with Fouad and Ali Twaiti on May 12, 2000. Fouad Twaiti informed investigators that his firm had been in operation since early 2000, and further added that his firm had been approached by some of its customers who ask for list I chemical products. Upon request, Fouad Twaiti furnished DEA investigators with a customer list consisting of four business establishments.
DEA investigators subsequently interviewed each of the owners and/or managers comprising the customer list provided by Fouad Twaiti. Each of the listed establishments denied requesting list I chemical products from Fouad Twaiti, and three of the establishments denied engaging in the sale of any pseudoephedrine products.
The investigative file further reveals that as part of its ongoing investigation of the Respondent, DEA investigators obtained bank records of an individual hereinafter referred to as “M.A.” In or around March 2000, M.A. was criminally charged in Newark, New Jersey, with unlawful distribution of a listed chemical, and in January 2001, M.A. purportedly signed a plea agreement on the charge. According to DEA's review of bank records, Ali Twaiti engaged in a transaction with MA for $54,000 on December 20, 1999. When M.A. was asked by law enforcement officials about the above transaction with Ali Twaiti, M.A. replied, “that was for a candy deal.”
Pursuant to 21 U.S.C. 823(h), the Deputy Administrator may deny an application for DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the public interest as determined under that section. Section 823(h) requires the following factors be considered in determining the public interest:
(1) Maintenance of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance with applicable Federal, State, and local law;
(3) Any prior conviction record under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
As with the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Deputy Administrator may rely on any one or combination of factors of factors, and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration denied.
The Deputy Administrator finds factors one, four, and five relevant to the Respondent's pending application.
With respect to factor one, maintenance of effective controls against diversion, the Deputy Administrator finds evidence in the investigative file that the Respondent provided customer information to DEA investigators that later proved to be false. With the ever-present problem of listed chemical diversion, it is incumbent upon a potential registrant to provide reliable and accurate information regarding the immediate destination of these products, and thereby, reduce the opportunity for diversion. The Deputy Administrator finds the uncertainty surrounding Respondent's customers is relevant under factor one and supports denial of Respondent's pending application for DEA registration.
Regarding factor four, past experience in the manufacture and distribution of chemicals, the Deputy Administrator can find no evidence in the investigative file that Respondent, a small candy distributor, has any previous experience related to handling or distributing listed chemicals. This factor also weighs against the granting of Respondent's pending application.
With respect to factor five, such other factors relevant to and consistent with the public safety, the Deputy Administrator finds relevant that Respondent provided false information to DEA investigators when it provided a list of its purported customers. The Deputy Administrator finds this lack of candor makes questionable the Respondent and its owners' commitment to the DEA statutory and regulatory requirements designed to protect the public from the diversion of listed chemicals. Seaside Pharmaceutical Co., 67 FR 12580 (2002); Aseel, Incorporated, Wholesale Division, 66 FR 35459 (2001); Terrence E. Murphy, M.D., 61 FR 2841 (1996).
On a related note, it is also unclear whether Fouad Twaiti provided a false statement to DEA investigators when he stated that the firm had been approached by customers requesting listed chemical products. Even if the statement regarding customer inquiries was true, there is insufficient information before the Deputy Administrator regarding the type of customers that requested these products, their identity and location, and whether they had a legitimate business interest in seeking the purchase of listed chemical products.
The Deputy Administrator also finds relevant under factor five, the fact that Ali Twaiti engaged in a significant financial transaction with a purported diverter of list I chemicals. The apparent business connection between Respondent's ownership and an individual purportedly convicted of unlawful distribution of list I chemicals is troubling when one considers that the Respondent seeks a DEA Certificate of Registration to distribute these same products.
The Deputy Administrator concludes that the Respondent cannot be entrusted with the responsibilities of a DEA registration. In light of the above, the Deputy Administrator further concludes that it would be inconsistent with the public interest to grant the application of the Respondent.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the pending application for DEA Certificate of Registration, previously submitted by Island Wholesale, Incorporated be, and it hereby is, denied. This order is effective May 9, 2003.
On March 13, 2003, a Notice of Registration was published in the
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on March 29, 2002, Siegfried (USA) Inc., made application by renewal to the Drug Enforcement Administration for registration as a bulk manufacturer of the basic classes of controlled substance listed below:
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: DEA Federal Register Representative (CCR), and must be filed no later than 60 days from publication.
60-Day Emergency Notice of Information Collection Under Review: New Collection; Project Safe Neighborhoods Semi-Annual Researcher Reporting Form.
The Department of Justice; Office of Justice Programs, has submitted the following information request to the Office of Management and Budget (OMB) for review and clearance in accordance with emergency review procedures of the Paperwork Reduction Act of 1995. OMB approval has been requested by April 18, 2003. The proposed information collection is published to obtain comments from the public and affected agencies. If granted, the emergency approval is only valid for 180 days. Comments should be directed to OMB, Office of Information and Regulation Affairs, Attention: Department of Justice Desk Office (202) 395-6466, Washington, DC 20503.
During the first 60 days of this same review period, a regular review of this information collection is also being undertaken. All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Robyn Thiemann, Counsel, Domestic Security Section, Department of Justice, 601 D Street NW., Patrick Henry Building, Suite 6500, Washington, DC 20530, or facsimile (202) 305-4901.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information. Your comments 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 additional information is required, please contact Brenda Dyer, Department Deputy Clearance Officer, Information Management and Security Staff, Justice Management Division, United States Department of Justice, 601 D Street NW., Patrick Henry Building, Suite 1600, NW., Washington, DC 20530.
Office on Violence Against Women, Office of Justice Programs, Justice.
Notice of meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming public meeting of the National Advisory Committee on Violence Against Women (hereinafter “the Committee”).
The meeting will take place on April 24 from 9 a.m. to 5 p.m., and on April 25 from 9:30 a.m. to 3 p.m.
The meeting will take place at the U.S. Department of Health and Human Services, Hubert Humphrey Building 200 Independence Avenue, NW., Washington, DC.
Omar A. Vargas, Special Assistant, The National Advisory Committee on Violence Against Women, 810 Seventh Street, NW., Washington, DC 20531. Telephone: (202) 307-6026. E-mail:
The Committee is chartered by the Attorney General, and co-chaired by the Attorney General and the Secretary of Health and Human Services (the Secretary), to provide the Attorney General and the Secretary with practical and general policy advice concerning implementation of the Violence Against Women Act of 1994, the Violence Against Women Act of 2000, and related laws, and will assist in the efforts of the Department of Justice and the Department of Health and Human Services to combat violence against women, especially domestic violence, sexual assault, and stalking.
In addition, because violence is increasingly recognized as a public health problem of staggering human cost, the Committee will bring national attention to the problem of violence against women and increase public awareness of the need for prevention and enhanced victim services.
This meeting will primarily focus on the Committee's work; there will, however, be an opportunity for public comment on the Committee's role in providing general policy guidance on implementation of the Violence Against Women Act of 1994, the Violence Against Women Act of 2000, and related legislation.
This meeting will be held according to the following schedule:
1.
2.
The meeting schedule for April 24, 2003 will begin with presentations from invited speakers and reports on the work of the Committee's subcommittees. Time will be reserved for comments from the public, beginning at 10:30 a.m. and ending at 11 a.m.
The meeting scheduled for April 25, 2003, will consist of briefings on Violence Against Women initiatives at the Department of Justice and the Department of Health and Human Services, and subcommittees will report back on the previous day's work.
The meeting on April 24, from 9 a.m. to 12 p.m., will be open to the public. (The Committee will convene for lunch and in closed subcommittee sessions from 12 p.m. to 5 p.m. pursuant to 41 CFR 102-3.160 of the Federal Advisory Committee Act.) Registrations for the public sessions will be accepted on a space-available basis. Members of the public who wish to attend must register at least six (6) days in advance of the meeting by contacting Omar A. Vargas, Special Assistant, at the e-mail address or fax number listed above. Access to the meeting will not be allowed without registration, and all attendees will be required to sign in at the meeting registration desk. Please bring photo identification and allow extra time prior to the meeting.
Individuals who will need special accommodations for a disability in order to attend the meetings should notify Omar A. Vargas, Special Assistant, at the above e-mail address or by fax, no later than April 18, 2003. We will attempt to meet requests after this date, but cannot guarantee availability of the requested accommodation. The meeting site is accessible to individuals with disabilities.
Interested parties are invited to submit written comments to the Committee, by September 30, 2003, using one of the following methods: by e-mail to
If you are interested in participating during the public comment period of the meeting, on the implementation of the Violence Against Women Act of 1994, and the Violence Against Women Act of 2000, you are requested to reserve time on the agenda by contacting the Office on Violence Against Women, Office of Justice Programs, U.S. Department of Justice, by e-mail or fax. Please include your name, the organization you represent, if appropriate, and a brief description of the issue you would like to present. Participants will be allowed approximately 3 to 5 minutes to present their comments, depending on the number of individuals who reserve time on the agenda. Participants are also encouraged to submit two written copies of their comments at the meeting.
Given the expected number of individuals interested in providing comments at the meetings, reservations for presenting comments should be made as soon as possible.
Persons who are unable to obtain reservations to speak during the meetings are encouraged to submit written comments, which will be accepted at the meeting site or may be mailed to the Committee at the address listed under the section on Submitting Written Comments.
Notice of this meeting is required under section 10(a)(2) of the Federal Advisory Committee Act.
Employment and Training Administration, Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation process 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 process helps to ensure that requested data can be provided in the desired format, reporting burdens are minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment and Training Administration (ETA) is soliciting comments concerning the proposed continuation of a reporting and performance standards system for Indian and Native American programs under title I, section 166 of the Workforce Investment Act (WIA). A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed below in the address section of this notice.
Written comments must be submitted to the office listed in the addressee section below on or before June 9, 2003.
James C. DeLuca, Chief, Division of Indian and Native American Programs, Employment and Training Administration, U.S. Department of Labor, Room N-4641, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693-3754 (VOICE) or (202) 693-3818 (FAX) (these are not toll-free numbers) or INTERNET:
The Employment and Training Administration of the Department of Labor is requesting continuation of the current reporting and performance standards system for Workforce Investment Act (WIA), title I, section 166, Indian and Native American grantees for one year (April 1, 2003 to March 31, 2004), in part to coincide with the expiration of the section 166 financial report (ETA-9080) which is currently approved through March 31, 2004 under OMB Control Number 1205-0423. In evaluating the last few years' reporting experience of the grantees who receive funding under WIA section 166, including those receiving Supplemental Youth Services (SYS) funds, and, in light of the continuing statutory requirements of WIA applicable to section 166 grantees, the Department has decided to extend the currently-approved reporting requirements which it believes supports the current statutory requirements under WIA as they relate to the Indian and Native American Program. The only anticipated change(s) would be to accommodate the information collection requirements of the Administration's proposed “Common Measures” for evaluating all Federally-funded employment and training programs. Further details of these possible changes are available on request. However, it should be noted that the Workforce Investment Act comes up for reauthorization during 2003, which could result in additional, statutorily-mandated reporting changes which would need to be covered in this data collection.
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 burden estimate for 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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This ICR will be used by approximately 145 Workforce Investment Act (WIA) section 166 grantees as the primary reporting and performance measurement vehicle for enrolled individuals, their characteristics, training and services provided, outcomes, including job placement and employability enhancements, as well as detailed financial data on program expenditures. Grantees participating in the demonstration under Public Law 102-477 will not be affected by this collection, and have not been included in the following burden estimates.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance 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 Bureau of Labor Statistics (BLS) is soliciting comments concerning the proposed reinstatement of the “Current Population Survey (CPS) Volunteer Supplement.” A copy of the proposed information collection request (ICR) can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
Send comments to Amy A. Hobby, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room 4080, 2 Massachusetts Avenue, NE., Washington, DC 20212, telephone number 202-691-7628 (this is not a toll free number).
Amy A. Hobby, BLS Clearance Officer, telephone number 202-691-7628. (
The September 2003 CPS Volunteer Supplement will be conducted at the request of the USA Freedom Corps. The Volunteer Supplement will provide information on the total number of individuals in the U.S. involved in unpaid volunteer activities, factors that motivate volunteerism, measures of the frequency or intensity with which individuals volunteer, types of organizations that facilitate volunteerism, and activities in which volunteers participate.
Because the Volunteer Supplement is part of the CPS, the same detailed demographic information collected in the CPS will be available on respondents to the Supplement. Comparisons of volunteer activities will be possible across characteristics such as sex, race, age, and educational attainment of the respondent. It is intended that the Supplement will be conducted annually, if resources permit, in order to gauge changes in volunteerism.
The Bureau of Labor Statistics is particularly interested in comments that:
• 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,
Office of Management and Budget clearance is being sought for the CPS Volunteer Supplement.
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 also will become a matter of public record.
National Aeronautics and Space Administration.
Notice of prospective patent license.
NASA hereby gives notice that Automated Control Technologies, Inc. of 2009 Pleasant Valley Road, Fairmont, WV 26554, has applied for a Partially Exclusive license to practice the inventions described in NASA Case Number LAR-13845 1-CU entitled “Reactivation Of A Tin Oxide-Containing Catalyst,” NASA Case Number LAR-13741-1-SB entitled “Process for Making a Noble Metal on Tin Oxide Catalyst,” NASA Case Number LAR-14155-1-SB entitled “Catalyst For Carbon Monoxide Oxidation,” NASA Case Number LAR14155-2-SB entitled “Catalyst For Carbon Monoxide Oxidation,” NASA Case Number LAR-15351-1-CU entitled “Catalytic Process For Formaldehyde Oxidation,” NASA Case Number LAR-15652-1-CU entitled “Catalyst For Oxidation Of Volatile Organic Compounds” for which U.S. Patents were issued and assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration and NASA Case Number LAR15851-1-CU entitled “Process For Coating Substrates With Catalyst Materials” for which a U.S. Patent Application was filed and assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. Written objections to the prospective grant of a license should be sent to Langley Research Center.
Responses to this notice must be received by April 24, 2003.
Helen M. Galus, Patent Attorney, Langley Research Center, Mail Stop 212, Hampton, VA 23681-2199. Telephone 757-864-3227; Fax 757-864-9190.
National Aeronautics and Space Administration.
Notice of Prospective Patent License.
NASA hereby gives notice that the Bombardier Motor Corporation of America, of Delaware, has applied for an exclusive license to practice the inventions disclosed in NASA Case Nos. MFS-31294-2-CIP2 entitled “Aluminum Alloy And Article Cast Therefrom,” MFS-31294-7-CIP entitled “Process For Producing A Cast Article From A Hypereutectic Aluminum-Silicon Alloy” and MFS-31828-1 entitled “High Strength Aluminum Alloy For High Temperature Applications,” for which U.S. Patent Applications were filed and assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. Written objections to the prospective grant of a license should be sent to James L. McGroary, Chief Patent Counsel/LS01, Marshall Space Flight Center, Huntsville, AL 35812. NASA has not yet made a determination to grant the requested license and may deny the requested license even if no objections are submitted within the comment period.
Responses to this notice must be received by April 24, 2003.
Sammy A. Nabors, Technology Transfer Department/CD30, Marshall Space Flight Center, Huntsville, AL 35812, (256) 544-5236.
Entergy Nuclear Operations, Inc., (ENO or the licensee) is the holder of Facility Operating License No. DPR-64 which authorizes operation of the Indian Point Nuclear Generating Unit No. 3 (IP3). The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in effect.
The facility consists of a pressurized-water reactor located in Westchester County in the State of New York.
Title 10 of the Code of Federal Regulations (10 CFR), part 50.44, “Standards for combustible gas control system in light-water-cooled power reactors,” requires that each pressurized light-water nuclear power reactor fueled with oxide pellets within cylindrical zircaloy or ZIRLO cladding must be provided with the capability for controlling the combustible gas concentrations in the containment following a postulated loss-of-coolant accident (LOCA). A combustible gas control system is defined by 10 CFR 50.44(h) as a system that operates after a LOCA to maintain the concentrations of combustible gases within the containment, such as hydrogen, below flammability limits. Combustible gas control systems are of two types:
(1) Systems that allow controlled release from containment such as a purge or vent system, and
(2) Systems that do not result in a significant release from containment such as hydrogen recombiners. The combustible gas control system at IP3 consists of a hydrogen recombiner system and a backup purge system.
When IP3 was initially licensed, the post accident containment ventilation (PACV) system was installed to meet the requirements of 10 CFR 50.44(f). Section 50.44(f) requires:
For facilities with respect to which the notice of hearing on the application for a construction permit was published between December 22, 1968, and November 5, 1970, if the incremental radiation dose from purging (and repressurization if a repressurization system is provided) occurring at all points beyond the exclusion area boundary after a postulated LOCA calculated in accordance with § 100.11(a)(2) of this chapter is less than 2.5 rem to the whole body and less than 30 rem to the thyroid, and if the combined radiation dose at the low population zone outer boundary from purging and the postulated LOCA calculated in accordance with § 100.11(a)(2) of this chapter is less than 25 rem to the whole body and less than 300 rem to the thyroid, only a purging system is necessary, provided that the purging system and any filtration system associated with it are designed to conform with the general requirements of Criteria 41, 42, and 43 of appendix A to this part. Otherwise the facility shall be provided with another type of combustible gas control system (a
When the Commission issued what is now paragraph c(3)(ii) of 10 CFR 50.44 in 1981, a safety related hydrogen recombiner system was installed. Paragraph c(3)(ii) requires:
By the end of the first scheduled outage beginning after July 5, 1982 and of sufficient duration to permit required modifications, each light-water nuclear power reactor that relies upon a purge/repressurization system as the primary means for controlling combustible gases following a LOCA shall be provided with either an internal recombiner or the capability to install an external recombiner following the start of an accident. The internal or external recombiners must meet the combustible gas control requirements in paragraph (d) of this section. [* * *]
As a result, the recombiner system became the primary method of combustible gas control while the PACV system became a backup method.
The purpose of this exemption request for 10 CFR 50.44(f) is to remove requirements for the PACV system from the IP3 licensing basis. The licensee is not requesting an exemption from GDC 41, “Containment Atmosphere Cleanup,” or 10 CFR 50.44(c). The licensee is requesting this exemption in accordance with 10 CFR 50.12. Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. These circumstances include the special circumstances stated in 10 CFR 50.12(a)(2)(ii), “Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule.” The PACV system also has a role in severe accident management. The Commission stated in Attachment 1 to SECY-02-0080, “Proposed Rulemaking—Risk-Informed 10 CFR 50.44, Combustible Gas Control In Containment,” their position concerning the ability to vent the containment as a severe accident strategy. Specifically, Attachment 1 to SECY-02-0080 states:
The Commission continues to view severe accident management guidelines as an important part of the severe accident closure process. Severe accident management guidelines are part of a voluntary industry initiative to address accidents beyond the design basis and emergency operating instructions. In November 1994, the U.S. nuclear industry committed to implement severe accident management at their plants by December 31, 1998, using the guidance contained in NEI 91-04, Revision 1, “Severe Accident Issue Closure Guidelines.” Generic severe accident management guidelines developed by each nuclear steam system supplier owners group includes either purging and venting or venting the containment to address combustible gas control. On the basis of the industry-wide commitment, the Commission is not proposing to require such capabilities, but continues to view purging and/or controlled venting of all containment types to be an important combustible gas control strategy that should be considered in a plant's severe accident management guidelines.
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. These circumstances include the special circumstances that the PACV system is not needed to meet the underlying purpose of 10 CFR 50.44. As mentioned above, the underlying purpose of 10 CFR 50.44 is to show that following a LOCA, an uncontrolled hydrogen-oxygen recombination would not take place, or that the plant could withstand the consequences of uncontrolled hydrogen-oxygen recombination without loss of safety function.
The staff examined the licensee's rationale to support the exemption request of eliminating the licensing basis requirements for the PACV system and concluded that retaining the licensing basis requirements for the PACV system is not necessary to achieve the underlying purpose of 10 CFR part 50.44. As mentioned above, the PACV system is the backup combustible gas control system. The primary system is the electric hydrogen recombiner system which meets the requirements of 10 CFR 50.44 c(3)(ii). Each of the recombiner subsystems is capable of maintaining the hydrogen concentration below the required limit following a design-basis LOCA. The PACV system is not necessary to meet the intent of the rule.
In their January 16, 2003, letter, the licensee stated that even with the retirement of the PACV system, they will be able to meet all their severe accident management commitments. Their current Severe Accident Management Guidelines (SAMGs) identify, in addition to the PACV system, three alternate methods of containment depressurization and combustible gas control. These methods are backflow to the steam ejector line, containment pressure relief line, and the containment purge system. The licensee stated that the decommissioning of the PACV system will include a revision to the SAMGs that will include the three alternative methods listed above. The staff concludes that the licensee continues to address the Commission's concerns regarding the use of purging and/or controlled venting of containment as an important combustible gas control strategy that should be considered in the licensee's severe accident management guidelines.
Based on the above, the staff determined that the requested exemption from the requirements of 10 CFR 50.44(f) meets the requirements of 10 CFR 50.12. The staff finds the requested exemption acceptable. Therefore, the staff concludes that pursuant to 10 CFR 50.12(a)(2) the licensee's requested exemption from the requirements of 10 CFR 50.44(f) for IP3 as specified in a letter dated October 3, 2002, and as supplemented by letters dated January 16 and March 11, 2003, is acceptable.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants ENO an exemption from the requirement to maintain a purge/repressurization system of 10 CFR 50.44(f) for IP3.
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (68 FR 15487).
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission
The U.S. Nuclear Regulatory Commission is considering an application submitted by the U.S. Enrichment Corporation Inc. (USEC), dated February 11, 2003, for a license to possess and use, for five years, special nuclear, source, and by-product material in the American Centrifuge Lead Cascade Facility (Lead Cascade). The Lead Cascade, which is to be located at the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio, will possess up to 250 kilograms of uranium hexafluoride and will consist of up to 240 operating, full-scale centrifuge machines.
By letter dated March 13, 2003, the NRC informed USEC that based on an administrative review of the Lead Cascade license application, the NRC had found the application acceptable for technical review. However, before approving the proposed license, NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended, and NRC regulations. The NRC will document its technical reviews related to radiological safety and common defense and security in a Safety Evaluation Report and its environmental safety review in an Environmental Assessment (EA). In the March 13, 2003, letter, the NRC also stated that it anticipates completing its technical reviews and issuing its decision by February 2004.
The NRC hereby provides notice that this is a proceeding on an application for a license falling within the scope of subpart L, “Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings” of NRC's rules and practice for domestic licensing proceedings in 10 CFR part 2. Pursuant to § 2.1205(a), any person whose interest may be affected by this proceeding may file a request for a hearing in accordance with § 2.1205(d). A request for a hearing must be filed within 30 days of the publication of this
The request for a hearing must be filed with the Office of the Secretary, either:
(1) By delivery to the Rulemaking and Adjudications Staff of the Office of the Secretary of the Commission at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852 between 7:45 a.m. and 4:15 p.m. on Federal workdays; or
(2) By mail or telegram addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Rulemaking and Adjudications Staff. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing also be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101, or by e-mail to
In accordance with 10 CFR 2.1205(f), each request for a hearing must also be served, by delivering it personally or by mail, to:
(1) The applicant, (U.S. Enrichment Corporation Inc., 6903 Rockledge Drive, Bethesda, MD 20817-1818); Attention Mr. Steven A. Toelle; and
(2) The NRC staff, by delivery to the General Counsel, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852 between 7:45 a.m. and 4:15 p.m. on Federal workdays, or by mail addressed to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing be also transmitted to the Office of the General Counsel, either by means of facsimile transmission to 301-415-3725, or by e-mail to
In addition to meeting other applicable requirements of 10 CFR part 2 of the NRC's regulations, a request for a hearing filed by a person other than an applicant must describe in detail:
(1) The interest of the requestor;
(2) How that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing, with particular reference to the factors set out in § 2.1205(h);
(3) The requestor's areas of concern about the licensing activity that is the subject matter of the proceeding; and
(4) The circumstances establishing that the request for a hearing is timely in accordance with § 2.1205(d).
For further details, the unclassified and non-proprietary portions of USEC's License application may be examined and/or copied for a fee at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The references with ADAMS Accession Number ML030730232 may also be viewed in the NRC's Electronic Public Document Reading Room at
For the Nuclear Regulatory Commission.
The Advisory Committee on Nuclear Waste (ACNW) will hold its 141st meeting on April 22-23, 2003, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The schedule for this meeting is as follows:
Procedures for the conduct of and participation in ACNW meetings were published in the
Further information regarding topics to be discussed, whether the meeting has been canceled or rescheduled, the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefore can be obtained by contacting Mr. Howard J. Larson.
ACNW meeting agenda, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Videoteleconferencing service is available for observing open sessions of ACNW meetings. Those wishing to use this service for observing ACNW meetings should contact Mr. Theron Brown, ACNW Audiovisual Technician (301/415-8066), between 7:30 a.m. and 3:45 p.m. ET, at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the videoteleconferencing link. The availability of videoteleconferencing services is not guaranteed.
In accordance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board will publish periodic summaries of proposed data collections.
When the Railroad Retirement Board (RRB) determines that an overpayment of Railroad Retirement Act (RRA) or Railroad Unemployment Insurance Act (RUIA) benefits has occurred, it initiates prompt action to notify the annuitant of the overpayment and to recover the money owed the RRB. To effect payment of a debt by credit card, the RRB currently utilizes Form G-421f, Repayment by Credit Card.
The RRB is proposing the creation of four additional forms to assist the RRB in the debt collection process. Proposed Form G-421g, Response to Notice of Debt, will be released along with RRB notices of overpayment under the RUIA. Proposed Form G-421h, Response to Notice of Debt, will be released along with RRB notices of overpayment caused by a failure to return RRA payments released after an annuitant's death. Proposed Form G-421i, Response to Notice of Debt, will be released with RRB notices of overpayment of RRA annuities when the overpayment was not caused by the withdrawal of funds deposited to an annuitant's financial institution account after his death and
All of the proposed forms will offer the repayment options of (1) direct payment by check or money order, (2) the use of a credit card, or (3) monthly installment payments. The G-421g will also offer the option of having a current benefit offset as a method of repayment.
One form is completed by each respondent. Completion is voluntary. RRB procedures pertaining to benefit overpayment determinations and the recovery of such benefits are prescribed in 20 CFR 255 and 340.
The estimate of annual respondent burden is as follows:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (“Act”) (44 U.S.C. 3501
Rule 489 under the Securities Act of 1933 (17 CFR 230.489) requires foreign banks and foreign insurance companies and holding companies and finance subsidiaries of foreign banks and foreign insurance companies that are excepted from the definition of “investment company” by virtue of rules 3a-1, 3a-5, and 3a-6 under the Investment Company Act of 1940 to file Form F-N to appoint an agent for service of process United States when making a public offering of securities. Approximately four entities are required by rule 489 to file Form F-N, which is estimated to require an average of one hour to complete. The estimated annual burden of complying with the rule's filing requirement is approximately five hours, as one of the entities has submitted multiple filings.
The estimates of average burden hours are made solely for the purposes of the Act and are not derived from a comprehensive or even representative survey or study of the cost of Commission rules and forms.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Kenneth A. Fogash, Acting Associate Executive Director/CIO, Office of Information Technology, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC, 20549.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to extend until September 30, 2003 its pilot program under Commentary .06 to Amex rule 126(g) relating to crossing procedures on the Amex in Nasdaq National Market securities. The Amex proposes no substantive changes to the pilot, other than extending its operation until September 30, 2003. The text of the proposed rule change is available at the Amex and at the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for its proposal and discussed any comments it received regarding the proposal. 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.
The Amex has implemented crossing procedures under Amex rule 126(g), Commentary .06 on a pilot basis extending until March 31, 2003.
The Amex is making no changes to the pilot as filed with the Commission in SR-Amex-2002-58, other than to extend the pilot program until September 30, 2003.
The Exchange believes that the proposal is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition.
The Exchange did not receive any written comments on the proposed rule change.
Because the foregoing proposed rule change does not:
(i) significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
The Amex has requested that the Commission accelerate the operative date. The Commission believes waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow the pilot to operate without interruption until September 30, 2003. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission.
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
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to waive certain fees for the reporting of SuperMontage transactions associated with the use of the ACT.
Below is the text of the proposed rule change, as amended.
(a)-(f) No change.
(g) Automated Confirmation Transaction Service
Transaction Related Charges:
* Each ACT query incurs the $0.288 fee; however, the first accept or decline processed for a transaction is free, to insure that no more than $0.288 is charged per comparison. Subsequent queries for more data on the same security will also be processed free. Any subsequent query on a different security will incur the $0.288 query charge.
** For the purposes of this service only, a transaction is defined as an original trade entry, either on trade date or as-of transactions per month.
*** A firm that uses ACT risk management through one or more NWII terminals when the ACT Workstation is introduced will be eligible to evaluate the ACT Workstation for a free, three-month trial period, provided that the firm continues to pay charges associated with its NWII terminal(s) during that period.
(h)-(s) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
ACT is an automated trade reporting and reconciliation service that speeds the post-execution steps of price and volume reporting, comparison, and clearing of trades completed in Nasdaq, OTC Bulletin Board, and other over-the-counter securities. ACT handles transactions executed through Nasdaq's automated trading systems, as well as transactions negotiated over the telephone and internalized transactions. It also manages post-execution procedures for transactions in exchange-listed securities that are traded in the Nasdaq InterMarket.
Nasdaq represents that, as part of an ongoing effort to reduce the costs incurred by market participants to use Nasdaq services, it proposes to waive the ACT fees for transactions that are executed through SuperMontage (or any other transaction execution system, such as Liquidity Tracker, that uses SuperMontage's functionality to report transactions). Currently, Nasdaq assesses a fee of $0.029 per side for the reporting of such transactions, which are reported to ACT automatically. Under the proposed rule change, as amended, however, this fee would be waived for a participant during a month in which the participant: (i) Executed an average daily volume of 10,000 or more transactions through SuperMontage (or any other system that uses SuperMontage functionality to report trades); (ii) reported to ACT at least 98% of the internalized transactions
Nasdaq represents that it is currently facing competition from market centers that are willing to offer market participants free trade reporting services,
Nasdaq believes that the proposed rule change, as amended, is consistent with the provisions of section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary and appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing rule change, as amended, has become effective upon March 27, 2003, the date of filing of Amendment No. 1 to the proposed rule change, pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule 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 Nasdaq. All submissions should refer to File No. SR-NASD-2003-56 and should be submitted by April 30, 2003.
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 Exchange is proposing to amend its rules by adopting a one tick step up requirement for Market Makers who are participating on the Exchange's Automatic Execution System (“Auto-Ex”) in certain option issues. The text of the proposed rule change is below. Additions are in italics.
Rule 6.87(a)-(d)—No change.
(e) Market Maker Requirements and Eligibility. Any Exchange Member who is registered as a Market Maker and who has obtained written authorization from a clearing member is eligible to participate on the Auto-Ex system, subject to the following conditions and requirements:
(1)-(7)—No change.
(A)
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The Exchange has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt new PCX rule 6.87(e)(8) relating to the Exchange's Auto-Ex System for options trading. Currently, Options Market Makers who are logged on to Auto-Ex are obligated to meet certain requirements as set forth in PCX rule 6.87(e)(1)-(7). The Exchange is proposing to adopt a new rule requiring Lead Market Makers (“LMMs”) on Auto-Ex to “step up” and execute certain orders at better prices than the Exchange is disseminating, if another options exchange is disseminating that better price.
Current PCX rule 6.87(i) allows Auto-Ex to be set to execute inbound electronic orders at prices reflecting the national best bid or offer (“NBBO”) in selected issues, subject to the approval of the Options Floor Trading Committee (“OFTC”). Under the proposal, LMMs who are participating on Auto-Ex must assure that Exchange staff (
Alternatively, an LMM may have the Exchange staff set the Auto-Ex system to execute incoming electronic orders at the NBBO pursuant to PCX rule 6.87(i). Pursuant to PCX rule 6.87(i), any order that is not executed at the NBBO will be manually presented in the trading crowd if it is more than one trading increment away from the PCX market price.
Proposed PCX rule 6.87(e)(8) will apply only to non-broker-dealer orders for ten contracts or less in option issues that are ranked in the 120 most actively traded equity options based on the total number of contracts traded nationally for a specified month based on volume as reported by the Options Clearing Corporation. In addition, the rule will only apply to orders in option series that are not designated as LEAPS pursuant to PCX rule 6.4(e).
The Exchange's determination of whether an equity option ranks in the top 120 most active, nationally-traded issues will be based on volume statistics reported by the Options Clearing Corporation. For each current month, the Exchange's determination of whether an equity option ranks in the top 120 most active issues will be based on volume statistics for the three calendar months of trading activity beginning four months prior to the current month. The Exchange intends to notify its Members of the issues that are designated to be in the top 120 via a regulatory bulletin that will be published at the beginning of each month.
The Exchange believes that the proposal is consistent with section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-2002-54 and should be submitted by April 30, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before June 9, 2003.
Send all comments regarding whether these information collections are necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Linda K. Waters, Program Analyst, Office of Government Contracting, Small Business Administration, 409 3rd Street SW., Suite 8800, Washington, DC 20416.
Linda K. Waters, Program Analyst, (202) 205-7315 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Charles Ou, Economist, Office of Advocacy, Small Business Administration, 409 3rd Street SW., Suite 7800, Washington, DC 20416.
Charles Ou, Economist, (202) 205-6966 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Sandra L. Johnston, Program Analyst, Office of Financial Assistance, Small Business Administration, 409 3rd Street SW., Suite 8300 Washington, DC 20416.
Sandra L. Johnston, Program Analyst, (202) 205-7528 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Marcia Pixley, Regulatory Fairness Coordinator, Office of the National Ombudsman, Small Business Administration, 409 3rd Street SW., Suite 7125 Washington, DC 20416.
Marcia Pixley, Regulatory Fairness Coordinator, (202) 619-1732 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Cynthia G. Pitts, Program Analyst, Office of Disaster Assistance, Small Business Administration, 409 3rd Street SW., Suite 6050 Washington, DC 20416.
Cynthia G. Pitts, Program Analyst, (202) 205-7570 or Curtis B. Rich, Management Analyst, (202) 205-7030.
In accordance with notices received from the Department of Homeland Security—Federal Emergency Management Agency, effective March 28, 2003 and April 2, 2003, the above numbered declaration is hereby amended to establish the incident period for this disaster as beginning on February 16, 2003, and continuing through March 28, 2003. This declaration is also amended to include Calhoun, Fayette, Greenbrier, Mason, McDowell, Mercer, Nicholas, Raleigh, Upshur, Webster and Wyoming Counties in the State of West Virginia as a disaster area due to damages caused by a severe winter storm, record snow, heavy rains, flooding and landslides occurring on February 16, 2003, and continuing through March 28, 2003.
In addition, applications for economic injury loans from small businesses located in the contiguous counties of Barbour, Braxton, Gilmer, Harrison, Lewis, Monroe, Pocahontas, Randolph, Ritchie and Summers in the State of West Virginia; and Alleghany, Bath, Bland, Giles and Tazewell Counties in the State of Virginia may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have been previously declared.
All other information remains the same,
Social Security Administration (SSA).
Notice of meetings.
May 19, 2003, 10 a.m.—3 p.m.*; May 20, 2003, 9 a.m.—5 p.m.; May 21, 2003, 9 a.m.—1 p.m.
* The full deliberative panel meeting ends at 3. The standing committees of the Panel will meet from 3:15 p.m. until 6:15 p.m.
Embassy Suites Hotel at the Chevy Chase Pavilion, 4300 Military Road, NW., Washington DC, 20037, Phone: (202) 362-9300.
Interested parties are invited to attend the meeting. The Panel will use the meeting time to receive briefings, hear presentations, conduct full Panel deliberations on the implementation of TWWIIA and receive public testimony. The topics for the meeting will include presentations of briefing papers prepared for the Panel, SSA's early intervention demonstration project and agency updates from SSA, the Department of Education and the Department of Health and Human Services.
The Panel will meet in person commencing on Monday, May 19, 2003 from 10 a.m. to 3 p.m. (standing committee meetings from 3:15 p.m. to 6:15 p.m.); Tuesday, May 20, 2003 from 9 a.m. to 5 p.m.; and Wednesday, May 21, 2003 from 9 a.m. to 1 p.m.
Individuals interested in providing testimony in person should contact the Panel staff as outlined below to schedule time slots. Each presenter will be called on by the Chair in the order in which they are scheduled to testify and is limited to a maximum five-minute verbal presentation. Full written testimony on TWWIIA Implementation, no longer than 5 pages, may be submitted in person or by mail, fax or email on an on-going basis to the Panel for consideration.
Since seating may be limited, persons interested in providing testimony at the meeting should contact the Panel staff by e-mailing Kristen M. Breland, at
The full agenda for the meeting will be posted on the Internet at
Contact Information: Anyone requiring information regarding the Panel should contact the TWWIIA Panel staff. Records are being kept of all Panel proceedings and will be available for public inspection by appointment at the Panel office. Anyone requiring information regarding the Panel should contact the Panel staff by:
• Mail addressed to Social Security Administration, Ticket to Work and Work Incentives Advisory Panel Staff, 400 Virginia Avenue, SW., Suite 700, Washington, DC 20024.
• Telephone contact with Kristen Breland at (202) 358-6423.
• Fax at (202) 358-6440.
• E-mail to
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8611, Recapture of Low-Income Housing Credit.
Written comments should be received on or before June 9, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage, (202) 622-3945, or through the Internet (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the 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 collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, REG-107047-00 (TD 8985), Hedging Transactions (§ 1.1221-2).
Written comments should be received on or before June 9, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Carol Savage, (202) 622-3945, or through the internet
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning existing regulations, EE-63-88 (Final and temporary regulations) Taxation of Fringe Benefits and Exclusions From Gross Income for Certain Fringe Benefits;
Written comments should be received on or before June 9, 2003, to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulation should be directed to Carol Savage, (202) 622-3945, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS).
Notice.
The Electronic Tax Administration Advisory Committee (ETAAC), was established to provide continued input into the development
The Director, Electronic Tax Administration (ETA) will assure that the size and organizational representation of the ETAAC obtains balanced membership and includes representatives from various groups including: (1) Tax practitioners and preparers, (2) transmitters of electronic returns, (3) tax software developers, (4) large and small businesses, (5) employers and payroll service providers, (6) individual taxpayers, (7) financial industry (payers, payment options and best practices), (8) system integrators (technology providers), (9) academic (marketing, sales or technical perspectives), (10) trusts and estates, (11) tax exempt organizations, and (12) state and local governments. We are soliciting nominations from professional and public interest groups, IRS officials, the Department of Treasury, and Congress. Members will be limited to serving one two-year term on the ETAAC to ensure that new perspectives and ideas are generated by the members. All travel expenses within government guidelines will be reimbursed.
Written nominations must be received on or before May 1, 2003.
Nominations should be sent to Kim Logan, W:E:S, C4-158, 5000 Ellin Road, Lanham, Maryland 20706. Application forms can be obtained from Kim Logan, who can be reached on (202) 283-1947.
Kim Logan, (202) 283-1947.
The ETAAC will provide continued input into the development and implementation of the IRS strategy for electronic tax administration. The ETAAC members will convey the public's observations about current or proposed policies, programs, and procedures, and suggest improvements.
This activity is based on the authority to administer the Internal Revenue laws conferred upon the Secretary of the Treasury by section 7802 of the Internal Revenue Code and delegated to the Commissioner of the Internal Revenue. The ETAAC will research, analyze, consider, and make recommendations on a wide range of electronic tax administration issues and will provide input into the development of the strategic plan for electronic tax administration.
Nominations should describe and document the proposed member's qualifications for membership to the Committee. Equal opportunity practices will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken in the account the needs of the diverse groups served by the Department, membership will include, to the extent practicable, individuals, with demonstrated ability to represent minorities, women, and persons with disabilities.
Internal Revenue Service (IRS), Treasury.
Notice.
Publication of the inflation adjustment factor, nonconventional source fuel credit, and reference price for calendar year 2002 as required by section 29 of the Internal Revenue Code (26 U.S.C. section 29). The inflation adjustment factor, nonconventional source fuel credit, and reference price are used in determining the tax credit allowable on the sale of fuel from nonconventional sources under section 29 during calendar year 2002.
The 2002 inflation adjustment factor, nonconventional source fuel credit, and reference price apply to qualified fuels sold during calendar year 2002.
For questions about how the inflation adjustment factor is calculated—Thomas A. Thompson, N:ADC:R:R:SMB, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224, Telephone Number (202) 874-0585 (not a toll-free number).
For all other questions about the credit or the reference price—Jaime Park, CC:PSI:7, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224, Telephone Number (202) 622-3120 (not a toll-free number).
Notice.
An open meeting of the Small Business/Self Employed—Schedule C Non-Filers Committee of the Taxpayer Advocacy Panel will be conducted in Washington DC.
The meeting will be held Saturday, May 3, 2003 and Sunday, May 4, 2003.
Mary O'Brien at 1-888-912-1227, or 206 220-6096.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Small Business/Self Employed—Schedule C Non-Filers Committee of the Taxpayer Advocacy Panel will be held Saturday, May 3, 2003 from 3 p.m. EST to 5 p.m. EST and on Sunday May 4, 2003 from 8 a.m. EST to 4 p.m. EST at the St. Gregory Hotel located at 2033 M Street, NW., Washington, DC. The public is
Last minute changes to the agenda are possible and could prevent effective advance notice.
(a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).
(b) Severe Acute Respiratory Syndrome (SARS), which is a disease associated with fever and signs and symptoms of pneumonia or other respiratory illness, is transmitted from person to person predominantly by the aerosolized or droplet route, and, if spread in the population, would have severe public health consequences.
In rule document 03-7018 beginning on page 15804 in the issue of Tuesday, April 1, 2003 make the following corrections:
1. On page 15864, in the table, in the second column heading, “Experimental Populations Special Rules 50 CFR 17.40(n):” should read “Experimental Populations Special Rules 50 CFR 17.84(i):”.
2. On page 15875, in the third column, in the first paragraph, in the 11th line, “paragraph (n)” should read “paragraph (o)”.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Kauai cave wolf spider (
This rule becomes effective on May 9, 2003.
Comments and materials received, as well as supporting documentation, used in the preparation of this final rule will be available for public inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., Room 3-122, Box 50088, Honolulu, HI 96850-0001.
Paul Henson, Field Supervisor, Pacific Islands Office, at the above address (telephone: 808/541-3441; facsimile: 808/541-3470).
The Hawaiian archipelago consists of eight main islands and the numerous shoals and atolls of the northwestern Hawaiian Islands. The islands were formed sequentially by basaltic lava that emerged from a hot spot in the earth's crust located near the current southeastern coast of the island of Hawaii (Stearns 1985). Kauai is the oldest of the main islands, with most of its land mass being formed between 3.6 and 5.6 million years ago (MYA) from a single, large shield volcano, now represented by the Alakai Plateau and adjacent ridges. Younger, secondary eruptions occurred over the eastern portion of the island as recently as the Pleistocene era (approximately 0.6 MYA). Due to the age of the island, the terrain is heavily eroded, with steep water-carved valleys and gulches characterizing the slopes of the Alakai Plateau and other isolated ridges. The Alakai Plateau is one of the wettest places on earth, receiving an average of 1.3 meters (m) (444 inches (in)) of rain annually (Juvik and Juvik 1998). Rain is delivered to the island by prevailing trade winds which come from the northeast. Southern and southwestern portions of the island lie in the rain shadow of the Alakai Plateau, ridges, or other uplands, and receive relatively little rain (NOAA 1990-1999).
The Koloa District lies in the southeast corner of Kauai and includes the town of Koloa and the community and resort area of Poipu. The area is dry to mesic (moderate rainfall), receiving an average of 107 to 223 centimeters (cm) (42 to 88 in) of rain annually. Although the Koloa District includes upland areas such as ridge lines derived from the Alakai Plateau and Haupu ridge, most human-occupied areas lie between sea level and about 183 m (600 feet (ft)) in elevation.
The Koloa area is composed of the youngest rock on Kauai, the Koloa Volcanics (MacDonald
The Kauai cave wolf spider (
Dr. Frank Howarth, of the Bishop Museum, first discovered the Kauai cave wolf spider in Koloa in 1971, and it was formally described by Willis Gertsch of the Bishop Museum (Gertsch 1973). The Kauai cave wolf spider is a predator, and although blind, can detect the presence of potential food items through chemo-tactile sensory organs and actively stalks its prey (Howarth 1983a). Although predation has not been observed in the field, the spider probably feeds on the Kauai cave amphipod, other cave-inhabiting arthropods, and alien species of arthropods that enter the cave system. Compared to most wolf spiders, the reproductive capacity of the Kauai cave wolf spider is extremely low, with only 15 to 30 eggs produced in each egg sac (Wells
The Kauai cave amphipod (
The Kauai cave amphipod is a detritivore and has been observed feeding on the roots of
Cave habitats have a high degree of zonation which plays a major role in the distribution of cave-dwelling organisms. Howarth and Stone (1990) recognize five distinct zones, not all of which are always present within any one cave. The first zone, the “entrance zone,” typically receives large amounts of solar radiation and is often vegetated with surface plants. Within the second zone, the “twilight zone,” ambient light levels decrease as one moves away from the entrance and photosynthesizing plants that may be present in the entrance decline. The third zone is referred to as the “transition zone.” The transition zone lacks light penetrance from the entrance, but other outside factors still greatly influence the cave habitat (
Cave habitats almost always contain small voids, cracks, and passages (mesocaverns) that cannot be accessed by researchers (Howarth 1983b), but remain readily accessible (or preferred) by small troglobites (obligate cave-dwelling animals). Although such voids and cracks can occur in any zone and possess characteristics of each of the five zones, they frequently represent areas of reduced air flow and consequently are most similar to the dark and stagnant air zones. Passages and mesocaverns in limestone caves can form or be destroyed at almost anytime in the life of the cave, depending on the chemical characteristics of the rock and normal geologic processes. Limestone caves often become larger over time as acidic waters from the surface dissolve away the calcium carbonate bedrock. Since water flow enlarges and creates caves in limestone by solution, subterranean voids do not fill through erosion. If any do, the water quickly finds a different path and enlarges a new void. Limestone caves grow deeper as the water table sinks and the surface over the caves dissolves away. Limestone caves improve with age because, although individual voids and passages may be short-lived, limestone caves continuously reform so that habitat can remain suitable for very long time spans. Caves derived from lava tube systems are fundamentally different from limestone in that basalt is not as readily soluble. Hence, lava tube passages and mesocaverns do not typically dissolve away and become larger (formed), but are subject to filling with sediments (destroyed).
The tendency for Hawaiian basalt to shrink and crack upon cooling results in younger lava flows having an abundance of mesocaverns throughout their structure that may serve as habitat or as corridors between habitats. However, the cave-building process typically stops some time after cave and crack formation, and is replaced by the cave-filling processes as weathering and sedimentation begin filling in mesocaverns and passages. On younger islands, the abundance of mesocaverns may allow cave animals to move among and between larger, adjacent lava tubes (Berger
Cave ecosystems are typically regarded as being food limited, and in most caves, the resident food-web communities require food input which is derived from surface systems based upon a photo-autotrophic (
As discussed in the species descriptions of the Kauai cave wolf spider and cave amphipod, troglobites typically possess specialized anatomical characters that represent adaptations to life in the cave environment. Such anatomical adaptations include enlarged and/or elongate tactile-sensory appendages (
Given the great vulnerability of troglobites to desiccation, adjacent mesocavern habitats will contain appropriate microclimate conditions and provide habitat or serve as refugia for troglobites when conditions in the main cave passages become drier or otherwise less accommodating. For example, during a previous survey of one cave of the Koloa area, the Kauai cave amphipod was not observed (Miura and Howarth 1978). However, on a subsequent survey, the floor of a small, dead end passage was saturated with 40 liters (10 gallons) of water, and 24 hours later amphipods had moved into this area, presumably from the surrounding mesocaverns (Howarth 1983a, 1983b). The foraging activities of both the Kauai cave wolf spider and the Kauai cave amphipod are restricted to dark, moist areas of large caverns and mesocaverns, and it is possible that the majority of their time is spent within such spaces.
Both Howarth (1983a) and Huppop (1985) have postulated that troglobites may be adapted to cope with low levels of oxygen and/or elevated concentrations of carbon dioxide, similar to conditions that would be encountered in the stagnant air zone of caves. This ability has been substantiated from observations in known stagnant air zones (Howarth and Stone 1990), as well as under controlled laboratory experiments. Hadley
The Kauai cave wolf spider and Kauai cave amphipod are generally restricted to cave dark and stagnant air zones, or other subterranean habitats such as cracks, voids, and other mesocaverns containing microclimate conditions similar to those zones. However, both the cave wolf spider and amphipod may be found in sub-optimal cave habitats (
Prior to the publication of the proposed rule to designate critical habitat for the Kauai cave wolf spider (67 FR 14671, March 27, 2002), the spider had been observed in only five caves in the Koloa area since its discovery in 1971. Through mapping of one of the caves, the Service considers two of the caves originally believed to be separate to actually be one system with two entrances. Since 1996, Service biologists have conducted annual surveys of the caves, and starting in 1998, we have conducted biannual monitoring visits to three of the known occupied caves. Observations recorded in these visits include a total count of animals within each cave, potential threats to the listed cave organisms or their habitat, and the cave's condition (
In two of the four known occupied caves, wolf spiders have been seen on only three occasions, but have been more often observed in two other caves. Of the two more frequently occupied caves, in only one of these wolf spiders have been encountered during every monitoring visit with 14 to 28 individuals observed (USFWS data from January 18, 1996 to November 20, 2002). The second cave contained a smaller number of wolf spiders when they were found there (one to four per monitoring visit). Since April 2000, no wolf spiders have been observed in this cave. The decline of wolf spiders in this cave has been matched with a corresponding increase in the number of resident brown violin spiders, an alien, web-building species that likely preys upon both the Kauai cave wolf spider and amphipod (A. Asquith,
Since the publication of the proposed rule, more surveys have been conducted and the spider has been verified to occur in two additional caves (Tom Shigemoto, Vice President, Alexander and Baldwin, pers. comm., 2002; Gordon Smith, Service,
The Kauai cave amphipod has been recorded from six caves in the Koloa area but was only regularly encountered in only three of these caves. In one of these three caves, where the amphipod was found with the wolf spider, their numbers have ranged from 8 to 67 during the biannual monitoring visits. In another regularly occupied cave, amphipod numbers have increased steadily from 10 to 20 individuals per visit in pre-1998 counts to over 300 individuals during a visit in November 2000 (Service, unpub. data).
In the three caves less frequently occupied by the amphipod, the lack of observations of the species is probably due to several factors. In one of these caves, relative humidity is often below 100 percent, which is a suboptimal condition for troglobites. Amphipods have been found in this cave when humidity conditions are optimal, such as after heavy rains which saturate the soil and increase the relative humidity in the dark zone. In a second cave, amphipods appear to be resident but were only observed during two visits that were conducted soon after the cave had been exposed by heavy machinery, and prior to the cave being re-closed for road construction (A. Asquith,
Since the publication of the proposed rule, the Service was notified of a seventh cave where the amphipod's occurrence was previously recorded (Bousfield and Howarth 1976). No additional information has been provided on this particular cave nor do we know the current status of the cave. Therefore, the amphipod has been known from seven caves.
Despite the data obtained in our biannual monitoring counts, the quantities of animals reported do not represent sound population estimates. The methods needed to conduct non-damaging, mark-recapture studies for accurate estimates of population size have not been developed for these animals, and no attempt to conduct such studies have been undertaken.
Cave systems may be separated by various physical barriers such as subterranean streams, or areas with developed soils that have filled in the mesocavern passages or habitats of these old caves (Mueller-Dombois and Howarth 1981). The degradation and loss of naturally occurring mesocavern habitats and corridors has likely been accelerated by development or other land uses that often require clearing of vegetation, blasting, and filling of trenches and construction sites. These activities, as well as modern agricultural practices, exacerbate the rates of sediment mobilization (Kirch 1982; Cuddihy and Stone 1990), resulting in the filling of caves and mesocaverns (Howarth 1973; Mueller-Dombois and Howarth 1981; Burney
Because distinct species can evolve in adjacent lava tubes even when cave animals can move extensively through mesocaverns (Hoch and Howarth 1993), it is reasonable to consider the separate localities of these animals as different populations, even though intervening areas of potential habitat cannot be surveyed. Thus, we have currently verified a total of six spider populations and seven amphipod populations that are distributed throughout the Koloa district as follows: the Koloa Caves #1, #2, the newly discovered spider cave, and adjacent areas west of Waikomo Stream are considered to harbor three populations of the spider and two populations of the amphipod; the seaward Kiahuna Caves #267 and #276 likely harbor two populations of the spider and one of the amphipod; the Kiahuna Cave #210 harbors a separate population each of the spider and amphipod; the Mahaulepu Cave harbors a separate population each of the cave amphipod and the spider (Service, unpublished data, 1998-1999; G. Smith
Small populations are also demographically vulnerable to extinction caused by random fluctuations in population size and sex ratio and to catastrophes such as hurricanes (Soule 1983; Gilpin and Soule 1986). In addition, the low reproductive potential of both cave species (less than five percent of their surface relatives) means that they require more time and space to recover from a disturbance than would similar animals living on the surface (F. Howarth,
One of the major threats facing the Kauai cave wolf spider and the Kauai cave amphipod is the introduction of invasive alien species (F. Howarth,
Human impacts in the Koloa caves, and resulting impacts on the Kauai cave wolf spider and Kauai cave amphipod, are another concern. Caves are frequently sought out by curiosity seekers, and over-use of caves occurs readily due to their fragile nature (Howarth 1982; Culver 1986). In addition, both natural and cultural features (
Human visitation to caves, even when not intentionally destructive, often results in severe impacts to the resident troglobites or other cave inhabitants. For example, nicotine is a potent insecticide that is easily introduced into the cave environment through cigarette smoke or discarded cigarette butts. Given the confined space and poor air circulation in caves supporting suitable troglobite habitat, the effects of cigarette smoke are far more pronounced in caves (Howarth 1982; Howarth and Stone 1993). The impacts of cigarette smoke are not restricted to the main cavern; the smoke will also impact mesocavern habitats, where its effects cannot be seen. Although less toxic than cigarette smoke, wood fire smoke may be equally damaging since far more smoke is produced and detrital food reserves may be burned. The use of cigarettes, as well as fire activity, have been documented
The narrow confines of most caves often result in focusing human travel and associated impacts to a small area, and increase the likelihood of troglobite mortality from unintentional trampling and the destruction or disturbance of food resources (
The restricted area in which the Koloa cave animals occur is rapidly undergoing development (KBGM Peat Marwick 1993). The shallow cave habitat has been, and continues to be, degraded or destroyed through surface alterations such as the removal of perennial vegetation, soil fill, grading, paving, collapsing and filling of caves, diversion of waste water into subterranean voids and spaces, and other activities associated with development and agriculture.
The Kauai cave wolf spider and Kauai cave amphipod are also increasingly at risk from predation and competition for space, water, and nutrients by introduced, nonnative animals (Howarth 1985, pers. comm., 1994; A. Asquith,
Due to the small number of known caves inhabited by these animals, we remain concerned that these threats may be exacerbated by the publication of the exact locations of individual caves. Since publication of the proposed listing rule for these animals in 1997 (62 FR 64340), we have found evidence of increased entry and vandalism in these caves (D. Hopper,
On June 16, 1978, we published in the
We published an updated Notice of Review for animals on January 6, 1989 (54 FR 554). In this notice, the Kauai cave wolf spider and Kauai cave amphipod were treated as category 1 candidates for Federal listing. Category 1 taxa were those for which we had on file substantial information on biological vulnerability and threats to support preparation of listing proposals. However, in the Notice of Review for all animal taxa published on November 21, 1991 (56 FR 58804), the two Kauai cave arthropods were listed as category 2 candidates. In the November 15, 1994, Notice of Review for all animal taxa (59 FR 58982), the two Kauai cave arthropods were again elevated to category 1 candidates. Upon publication of the February 28, 1996, Notice of Review (61 FR 7596), we ceased using candidate category designations and included the two cave arthropods as candidate species. Candidate species are those for which we have on file sufficient information on biological vulnerability and threats to support proposals to list the species as threatened or endangered. The two cave arthropods were included as candidate species in the September 19, 1997 (62 FR 49398), Notice of Review.
A proposed rule to list these two species as endangered was published on December 5, 1997 (62 FR 64340), and the final rule to list them was published on January 14, 2000 (65 FR 2348). Since that time, we have conducted conservation efforts for the Kauai cave wolf spider and Kauai cave amphipod through voluntary partnerships with two private landowners in the Koloa area.
In the proposed listing rule, we indicated that designation of critical habitat for the Kauai cave wolf spider and Kauai cave amphipod was not prudent. Our concern was that publication of precise maps and descriptions of critical habitat in the
However, in the final listing rule, we determined that critical habitat designation was prudent as we did not find specific evidence of taking, vandalism, collection, or trade of these species or any other similarly situated species. Also, we found that there may also be some educational or informational benefit to designating critical habitat. Therefore, we found that the benefits of designating critical habitat for these two species outweighed the benefits of not designating critical habitat.
On June 2, 2000, we were ordered by the U.S. District Court for the District of Hawaii (in
On February 14, 2001, we contacted landowners on the island of Kauai, notifying them of our requirement to designate critical habitat for the Kauai cave wolf spider and Kauai cave amphipod. We included a copy of a fact sheet describing the two species and their habitat, and a map showing the presumed historic and current range (based on occupied habitat and the distribution of similar geology and soils) of one or both of these species.
On January 30, 2002, the U.S. District Court in Hawaii approved a joint stipulation to modify the terms of the June 2 order to extend the deadline to August 10, 2002. Subsequently, the Service determined that an additional extension of time was needed to complete this designation process. On August 21, 2002, the U.S. District Court in Hawaii approved another joint stipulation extending the date for the final rule designating critical habitat for both cave animals to March 31, 2003.
The proposed rule published March 27, 2002, proposed to designate four critical habitat units which collectively
In the proposed rule published on March 27, 2002 (67 FR 14671), we requested that all interested parties submit written comments on the proposal. We also contacted all appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment. We received no requests for a public hearing.
We received individually written letters from 43 parties, including five designated peer reviewers. Approximately 417 additional letters were submitted as part of a mailing campaign that supported designation. Of the 43 commenters who were not part of the mailing campaign, 16 supported the proposed designation, 26 were opposed, and 1 expressed neither support nor opposition. Of the 26 commenters who opposed the proposal, 17 commenters specifically opposed designation of critical habitat on lands they own or manage, and requested that these areas be excluded from critical habitat designation.
We reviewed all comments received for substantive issues and new information regarding critical habitat for both cave animals. Similar comments were grouped into general issues and are addressed in the following summary.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited, in writing, the review of the proposed critical habitat designation from nine independent experts affiliated with academic and research organizations or natural resource conservation agencies. We also put in a request to Sustainable Ecosystems Institute. All of the individuals contacted are recognized leaders in the field of cave ecology and conservation, as demonstrated by a record of published peer reviewed results of past and current research in this field. Four parties responded with written reviews of the proposal, one provided a letter citing his inability to participate due to the lack of applicability to his state agency position, and the remaining four parties either verbally declined to participate due to workload or other constraints or simply did not respond.
The four scientific review responses were generally positive and in support of the proposed designation on the basis of its technical merits. Reviewers generally recognized the limitations on the extent of specific knowledge regarding the cave species in terms of population sizes, population dynamics, and distribution of occupied habitat. However, a lack of knowledge is not unusual for troglobitic organisms that only occur in areas where humans rarely go and that may primarily inhabit mesocavern areas where humans are unable to enter at all. The reviewers were in agreement that the primary constituent elements were identified adequately. Three of the reviewers commented that additional information, particularly detailed mapping, was needed regarding human activities that may have eliminated one or more primary constituent elements from the landscape, information which presumably would allow some areas to be eliminated from consideration as critical habitat. Comments received from the peer reviewers are summarized in the following section and were considered in developing the final rule.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
The Service determines whether critical habitat designation is prudent according to regulations found at 50 CFR 424.12(a). In accordance with these regulations, critical habitat designation is not prudent only when one or both of the following two 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 such threat to the species; or, (2) such designation would not be beneficial to the species. The economic analysis is generally conducted after critical habitat has been proposed in a given area, as set forth in regulations found at 50 CFR 424.19. If we find that economic or other impacts outweigh the benefit of designating critical habitat in a given area, that area will be excluded under section 4(b)(2) of the Act.
(13)
(14)
(15)
The mere promulgation of a regulation, like the enactment of a statute, does not take private property unless the regulation on its face denies the property owners all economically beneficial or productive use of their land (
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
The commercial development planned in Unit 10 is not in the General Plan and is not included in the State Urban District. As mentioned in the Indirect Costs section of the Addendum, this development may not occur for reasons unrelated to the intended designation. However, since the General Plan is updated every 10 years or so, the commercial development may be added to the General Plan before 2020. The property values used in the Addendum reflect the fact that the development is not fully entitled, but that the land has development potential.
Barring a hurricane or a major recession that disrupts tourism and resort/residential property sales, it is expected that, without the intended designation, all or nearly all of the planned development in the intended designation would occur by 2020.
(25)
(26)
Indirect costs that reflect the multiplier effects of lost development are no longer included in the analysis because they would be generated in any case; to the extent that development is displaced from the intended designation due to the implementation of section 7 for the cave animals, that development would still be expected to occur but in another location of Koloa outside the critical habitat. This is now expected because of the smaller area intended for designation.
(27)
(28)
While the DBEDT projections are used in comparisons of lost economic activity to projected island-wide economic activity in the DEA, neither the DBEDT projections nor the General Plan projections are directly used in the calculation of updated cost estimates presented in the Addendum.
(29)
(30)
(31)
(32)
(33)
In situations where development is displaced because of critical habitat, the cascading effect of project realignment is taken into account (
(34)
Regarding affordable housing, schools, parks and roads, the developers are obligated to provide them regardless of critical habitat. But if they cannot build them in critical habitat, then they could be moved elsewhere within a project site, displacing market housing or other project components. This displacement was assumed in analyzing the economic impacts of the section 7 implementation for the cave animals.
As discussed in the Indirect Costs section of the Addendum and in responses to other comments, a reduction in islandwide development attributable to the intended designation is no longer anticipated. As such, any changes in the public revenues associated with reduced economic activity are expected to be minimal.
No disproportionate economic or social impacts on specific ethnic groups were identified.
(35)
(36)
(37)
(38)
(39)
(40)
RFA/SBREFA regulations state that the Small Business Administration (SBA) counts the receipts or employees of the business whose size is at issue and those of all its affiliates in determining the business' size. Businesses are affiliates of each other when one concern controls or has the power to control the other, or a third party or parties controls or has the power to control both. The SBA considers factors such as ownership, management, previous relationships with or ties to another business, and contractual relationships, in determining whether affiliation exists. Finally, RFA/SBREFA regulations state that a firm will not be treated as a separate business concern if a substantial portion of its assets and/or liabilities are the same as those of a predecessor entity. In such a case, the annual receipts and employees of the predecessor will be taken into account in determining size (13 CFR part 121).
KGKD states that it is affiliated with Kobayashi Group LLC through common ownership by certain individuals. In addition, KGKD was recently established by the Kobayashi Group LLC for the purpose of acquiring the properties surrounding the golf course. As such, Kobayashi may be considered a predecessor entity of KGKD. Due to its affiliation with Kobayashi Group LLC, KGKD is not considered separately in the RFA/SBREFA analysis in the Addendum.
(41)
(42)
The expected circumstances and the potential timeline of delisting the cave animals will be presented in the Service's final recovery plan for the cave animals. The DEA does discuss the reduced costs due to successful preservation and the existence value of the cave animals in the Benefits section of Chapter VI; however, these benefits are not quantified given the lack of information as described above.
(43)
Second, the commenter uses an incorrect value of open space. As stated in the University of Hawaii study, a recent survey found that Oahu residents are willing to pay $0.0023 per acre (0.23 cent per acre) for the preservation of open agricultural land on O'ahu. The commenter's use of $0.23 (23 cents) per acre overstates the benefits associated with open space by a factor of 100. The Benefits section of the Addendum uses the 0.23 cent per acre figure, corrected for (1) inflation; (2) the income levels on Kauai; and (3) the amount of existing open space on Kauai compared to Oahu. To calculate the value of additional open space, the corrected figure is then applied to the amount of land that may no longer be developed due to critical habitat.
Third, the University of Hawa'i (UH) study on the Koolau Range on Oahu focuses on the economic benefits provided by a mountainous region covered by dense forests and many native Hawaiian plants. The proposed critical habitat is in a gradually sloping and relatively dry area that contains many nonnative plant species. Since the ecosystems of these two areas are vastly different, the ecosystem services provided by these areas will also be different. As such, the economic valuation of the ecosystem services provided by the Koolau Mountains is generally not transferrable to the proposed or intended critical habitat. For example, the value of water recharge in the UH study reflects projected water supply and demand conditions on Oahu—an island which is nine percent
Finally, the commenter's summation of benefits to $1.225 billion is flawed due to double-counting. For example, the $1,690 per acre figure in the UH study includes the benefits of open space. So adding the estimated open space benefit of $521 million to the ecosystem services estimate of $182.5 million double-counts the benefits of open space. Similarly, the two per-acre figures taken from the UH study ($1,690 per acre and $76,146 per acre) are two different measures of the same ecosystem benefits. The first figure refers to the annual stream of benefits, while the second figure refers to the net present value. Multiplying both of these figures by 6,000 acres and adding them together clearly double-counts the ecosystem benefits.
(44)
However, such benefits are likely to be small. For example, the proposed critical habitat is near the coast in an area of low rainfall, and thus contributes little to groundwater recharge.
The reduction of development and grazing in critical habitat could reduce soil runoff thereby protecting the coastal marine waters and fisheries off the south shore of Kauai. However, as mentioned in the DEA, this benefit is likely to be small because the affected marine ecosystem has already been altered by over 150 years of sugarcane cultivation in the area. Also, Koloa has an open coastline that is exposed to surf and strong ocean currents that continually flush the near-shore environment. Finally, any displaced development is likely to occur elsewhere in Koloa. Thus, the net environmental benefit to Kauai is likely to be small.
Additional environmental benefits, such as the preservation of open space, changes to traffic congestion, and the promotion of native plants, are discussed in the Benefits section of Chapter VI in the DEA and in the Addendum.
(45)
(46)
(47)
Based on a review of public comments received on critical habitat, we have reevaluated our proposed designations and included several changes to the final designations of critical habitat. No specific information on habitat conditions or species occurrence was provided. At the time of the publication of the proposed rule, we were aware of only six known cave locations where the animals occurred and did not know the precise locations of other caves with suitable habitat. In addition, in the proposed rule, we acknowledged two theories with regard to intercave dispersal corridors (67 FR 14673 and 67 FR 14674). One theory is that very limited, if any dispersal was occurring between the cave systems, and the other that dispersal corridors needed to be protected if these species are to be conserved. Because of the limited verified occupied areas and the absence of other known suitable cave locations, we believed it necessary to include areas in the proposal that would provide for intercave dispersal corridors. In the absence of more specific data, we proposed those areas that were most likely to contain the primary constituent elements based on the best available information at the
During the comment periods on the proposed rule, a significant amount of specific information was received on the presence or absence of primary constituent elements, verified occupied cave locations, and other locations of suitable caves. No additional information was provided on either the location or importance of intercave dispersal corridors. Although our peer review confirmed the importance of protecting caves and surrounding mesocaverns for local dispersal, there was no consensus or scientific clarity provided on intercave dispersal corridors.
We only designate areas as final critical habitat if they contain the physical and biological features essential to the conservation of the species, and if unoccupied, they are essential to the conservation of the species. In the case of the intercave dispersal corridors, we suspect connectivity may be important, but we do not know where they are, to what degree they are used, or how to map these corridors to be consistent with the legal requirements in designating critical habitat. Therefore, we have not included such areas in the final rule.
Based on a review of the public comments received on the proposed critical habitat, we have reevaluated our proposed designations and included several changes to the final designations of critical habitat. These changes include the following:
(1) The final designation went from three proposed units encompassing an area of approximately 1,697 ha (4,193 ac) to 14 units encompassing a total of 110 ha (272 ac).
(2) We received new information on the presence of the Kauai cave wolf spider in two caves in the Koloa region and updated their verified occurrence from four caves to six caves.
(3) We received information indicating we missed a cave from which the Kauai cave amphipod was previously recorded and updated their verified occurrence from six caves to seven caves.
(4) We received information from a survey conducted by Dr. Frank Howarth which identified areas required to maintain the persistence of both animals on Alexander and Baldwin property. The information contained numbers of caves discovered and the amount of areas surrounding them to incorporate sufficient protection and inclusion of mesocaverns connected to the caves. Areas not identified in Dr. Howarth's survey were excluded from the designation. This information also assisted us in refining the amount of needed habitat surrounding other caves.
(5) We received substantial data from various parties such as drilling records, photographs, archeological surveys, and biological surveys indicating the lack of primary constituent elements in certain portions of proposed critical habitat. These data provided information as to the current depths of dirt, clay, and other soils. Soil deposits greater than a foot deep begin to degrade and fill the meoscaverns and caves necessary for the cave animals' survival and indicate a lack of the primary constituent elements, or at a minimum the primary constituent elements are likely to be severely degraded (Dr. F. Howarth, pers. comm., 2002). These areas have been removed from the designation.
(6) We received additional information from Dr. Frank Howarth on areas of higher quality habitat with a high likelihood of containing occupied caves on Grove Farm property and a Civil Defense map indicating a large cave previously used as a fall-out shelter. These areas have been mapped and retained in the designation.
(7) We received information from various parties on surveys done on their properties indicating the likelihood of suitable cave habitat. Areas found to have a low likelihood of suitability have been removed from the designation.
(8) We made revisions to the unit boundaries based on information supplied by commenters, as well as information gained from field visits to some of the sites, that indicated that the primary constituent elements were not present in certain portions of the proposed unit, that certain changes in land use had occurred on lands within the proposed critical habitat that would preclude those areas from supporting the primary constituent elements, or that the areas may not be essential to the conservation of the species in question.
This final critical habitat designation addresses the conservation of the species by protecting a number of discrete cave systems (
Intervening areas between identified units of critical habitat may still be important to the recovery of the species although at this time we do not have information to identify them as essential to the conservation of the species. However, because either animal may be present at any given time in these intervening areas with suitable habitat, section 7 consultation requirements to ensure Federal actions are not likely to jeopardize the species and section 9 prohibitions, which preclude the
Absent any scientific data on the issue of intercave dispersal corridors, we applied a basic conservation strategy that protects all of the known cave locations and surrounding mesocaverns and identified high quality habitat where the animals are most likely to be found in a pattern that maximizes distribution across the basin. This wide distribution of cave systems should provide for the long term conservation of these two species if they are adequately protected and managed by reducing the vulnerability to diseases and other catastrophic events.
We are currently working on a draft recovery plan for the cave animals which will identify the need for genetic studies to determine the relationships between animals in verified occupied caves and continued study into ways to determine the importance and location of intercave dispersal corridors. In the event that new information is made available and indicates the necessity, we will consider amending the critical habitat designation.
A brief summary of the modifications made to each unit is given below.
This unit has been redesignated into 13 separate units. All of Alexander and Baldwin property has been surveyed by Dr. Frank Howarth, the recognized expert on Hawaiian caves. Along with data that a significant portion of their land has been dynamited and therefore highly unlikely to contain the primary constituent elements, Dr. Howarth has indicated where the primary cave habitats are and the surrounding buffer area (61 m) (200 ft) necessary to maintain the species in this area. Units 1, 2, and 3 represent the areas identified by Dr. Howarth. All other areas surveyed either do not contain the primary constituent elements or are not believed to be necessary to the conservation of the species because they were not identified by Dr. Howarth as necessary to maintain the species in the area and have been removed from the designation.
Areas above the Old Railroad Grade have been surveyed and the caves found to contain these animal species have been retained in the designation. Service biologists have mapped these caves.
The southern cave found in this area is one of the caves where the spider's occurrence has been verified. This cave and a 61 m (200 ft) buffer area to capture the surrounding mesocaverns to provide for a protective area from the development that may occur outside the buffer area comprise Unit 4.
The northern cave which occurs on the Kiahuna golf course has been gated, informational signs have been posted, and the area above the cave has been planted with native vegetation that is likely to provide food for the Kauai cave amphipod. This cave was mapped and a 30 m (100 ft) buffer placed around to capture the mesocaverns surrounding the cave. The golf course has been fully developed, therefore an additional buffer to protect against additional development is not believed to be necessary. The cave located within the golf course and the buffer area comprise Unit 5.
Additional information was provided indicating large soil deposits on the southern end of the property owned by Kiahuna Golf Club, LLC and KG Kauai Development LLC. In addition, archaeological information was provided indicating a large portion of the property was once used as fish ponds and terraced agricultural fields that were routinely left flooded. The use of land in this manner is likely to have caused a buildup of silt and other deposits that would either eliminate any primary constituent elements or degrade them. Therefore, these areas have been removed from the designation.
Drilling information obtained near areas proposed on the south side of Poipu Road near Koloa Landing and Poipu Beach Park indicate large deposits of sand and therefore no appropriate primary constituent elements. It is unlikely that the three small areas proposed south of Poipu Road, which likely contain similar deposits, contain the primary constituent elements. In addition, drilling information provided just north of Poipu Road, next to Poipu Village Shopping Center indicate a settling basin where large deposits of silt, clay, and soil have accumulated, indicating a lack of primary constituent elements. These areas have been removed from the designation.
Information obtained on the area north of the private road above Alexander and Baldwin property and east of Waikomo Stream indicates that far more homes and other structures have been built than previously believed. It is unlikely that primary constituent elements will be found in this area, and therefore it has been removed from the designation.
Additional information provided by the Eric Knudsen Trust shows two caves located within their property. These caves were identified during an archeological survey. Because the caves have not been surveyed by anyone familiar with the Kauai cave animals, we do not know whether they are occupied by either species. However, given that many of the caves found in the same area contain the animals, if all the primary constituent elements are present, it is highly likely that the animals will be present in these caves. Therefore, the area mapped for these caves including a 61 m (200 ft) buffer around them to include surrounding mesocaverns and protection from potential development are included in this designation as Units 6 and 8. Other archaeological finds indicate an extensive irrigation system, and it is likely that the rest of Eric Knudsen Trust property was used as terraced agricultural land that would have been routinely flooded. The use of land in this manner is likely to have caused a buildup of silt and other deposits that would either eliminate any primary constituent elements or degrade them. These areas have been deemed not essential to the conservation of the species and removed from the designation.
Unit 7 comprises an area that has not been surveyed recently, but the cave located on the property had a verified occurrence of the Kauai cave amphipod. The property is owned by the Roman Catholic Church, and no new information was provided on it. Since we did not have information on the exact location of the cave, we viewed satellite imagery and designated the area where the cave is most likely located. If new information on the exact location of the cave is gathered in the future, we will consider it in possible future revisions of this rule.
The Koloa bypass cave which is now a park and has a verified occurrence of the Kauai cave amphipod has been retained in the designation as Unit 9. This cave is completely surrounded by previously disturbed areas. The area above the cave was planted with plants to provide food for the Kauai cave amphipod and the entrance sealed over to prevent human intrusion. This unit comprises the open field of the park, which incorporates the cave and mesocaverns surrounding the cave.
Unit 10 includes the area containing the cave indicated on the civil defense map. The civil defense map does not outline the extent of the cave, but gives a general location. The entrance to the cave has also been sealed making it difficult to locate its exact location. This unit also includes the surrounding areas containing mesocaverns. In addition, further refinement was made by reviewing drilling records provided during the comment period. These records showed large deposits of clay
Site visits by Service biologists and Dr. Frank Howarth were made in the remaining areas of proposed Unit 1a. Units 11 and 12 represent Puu Wanawana and Puu Hunihuni, areas that are most likely to contain suitable cave habitat where animals are likely to be present. Both are spatter cones which are volcanic formations that are comprised of exposed barren rock that contain mesocaverns, limited soil deposits, and limited prior disturbance, and are likely to contain larger voids or caves. Information was provided by consultants hired by Grove Farm who were able to further investigate the area and have indicated it is the place most likely to be occupied by either species. Since we do not know of an exact cave location, the entire area of barren rock has been included in the designation. Areas surrounding the barren rock are less likely to contain the primary constituent elements and were deemed not essential to the conservation of either species. Puu Hi Reservoir is less likely to contain suitable habitat since these areas have a greater build up of soil and water does not seem to percolate through the rock, suggesting a lack of unfilled mesocaverns and caves (Dr. F. Howarth, pers. comm., 2002).
Unit 13 incorporates the limestone cave with verified occurrences of the Kauai cave amphipod. A recent visit to the cave by Service biologist Gordon Smith, Dr. Frank Howarth, and Grove Farm consultants Dr. Steven Carothers and Kemble White verified the presence of the Kauai cave wolf spider in the cave (G. Smith
No new information specific to proposed Unit 1b was provided during the comment period. However, when this was evaluated in light of the information provided on the proposed rule, this unit was found to be of lower quality habitat due to its small size and greater isolation from occupied areas, and because of the identification of suitable caves and likely higher quality habitat in other areas, this unit was deemed not essential to the conservation of either species.
Additional information was provided in and adjacent to Unit 2 in the form of survey information indicating a lack of primary constituent elements in parts of the unit. Areas less likely to contain the appropriate habitat were excluded and the remaining area is included in the designation. This unit lies only a short distance (approximately 350 m (1,100 ft)) from Unit 13 which is occupied, and it was likely once connected to that unit in the geologic past (Pleistocene Era) by deposits that have since eroded away or have been covered by unconsolidated sediments. The large size of appropriate habitat in this area is most likely to be able to sustain a population of either the Kauai cave amphipod or the Kauai cave spider. Information provided by Grove Farm confirms a large drainage system that empties into the limestone formation expected to provide the best type of habitat for the cave animals. Inclusion of this area with Units 1 through 13 provides a diverse geographic distribution that will increase the likelihood the species will survive stochastic or catastrophic impacts. This unit has been renamed Unit 14 of the designation and includes all the limestone bench area most likely to contain the primary constituent elements and therefore the animals themselves.
Drilling logs were provided around and in the proposed Unit 3 which showed a mixture of limestone, rock, dirt, and mud. Based on the number of areas elsewhere verified to be occupied or found to be highly likely to contain the animals, this area was deemed not essential to the conservation of either species.
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,” as defined by the Act, 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.
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 “* * * the 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.” The relationship between a species survival and its recovery has been a source of confusion to some in the past. We believe that a species' ability to recover depends on its ability to survive into the future when its recovery can be achieved; thus, the concepts of long-term survival and recovery are intricately linked. However, in the March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit (
In order to be included in a critical habitat designation, the habitat or its physical or biological features 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 (
Section 4 requires that we designate critical habitat for a species, to the extent such habitat is determinable, at the time of listing. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we may not have sufficient information to identify all the areas essential for the conservation of the species or, alternatively, we may inadvertently include areas that later will be shown to be nonessential. Nevertheless, we are required to designate those areas we determine to be critical habitat, using the best information available to us.
Our regulations state that “The Secretary shall designate critical habitat outside the geographic areas 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
It is important to clearly 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) and to the regulatory protections afforded by the Act's 7(a)(2) jeopardy standard and section 9 prohibitions, 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. 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.
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 the Kauai cave wolf spider and the Kauai cave amphipod. This information included: peer-reviewed scientific publications, the final listing rule for the Kauai cave wolf spider and Kauai cave amphipod (65 FR 2348), the Hawaii Natural Heritage Program database, unpublished field data collected by Service biologists, and unpublished field notes and communications with other qualified biologists or experts, archeological surveys, drilling records, photographs, and published descriptions of the regional geology and soils (MacDonald
Section 3(5)(A)(ii) of the Act provides that areas outside the geographical area currently occupied by the species may meet the definition of critical habitat upon determination that they are essential for the conservation of these species. Although we do not know whether the entire area is currently occupied, to date all caves that have been surveyed within the Koloa basin that contain all of the primary constituent elements have contained the Kauai cave amphipod and/or cave wolf spider. Hence, where appropriate habitat occurs within the Koloa basin, we fully expect it will be occupied by one or both of these species. Surrounding areas of the known occupied caves that are comprised of cave-bearing rock also will likely contain occupied habitat.
The final rule listing the Kauai cave wolf spider and Kauai cave amphipod stressed that these animals were at increasing risk from “predation and competition for space, water, and nutrients by introduced, alien animals; biological and chemical pesticide control activities associated with residential and golf course development; and an increased likelihood of extinction from naturally occurring events due to the small number of remaining individuals and populations and their limited distribution” (65 FR 2348). Recovery may require augmentation or enhancement of suitable cave habitat and the surrounding mesocaverns.
The primary goal of this critical habitat designation effort is to identify and designate a sufficient amount of suitable habitat to provide for the conservation of these two species. The Service has been challenged in this effort by the lack of scientific information on the distribution of the species and their suitable cave habitat within the Koloa basin, and a lack of understanding of the physical and genetic relationship between populations located in the various cave systems that are scattered throughout the basin.
To address these questions, the Service requested and received information in response to the publication of the proposed critical habitat designation. This information, which is detailed in the Summary of Changes from the Proposed Rule, provided new data on the location of occupied cave systems and also indicated areas of relatively higher quality habitat that are more likely to be occupied by these species. This new information allowed us to refine an original proposal by more precisely identifying areas essential to the conservation of these species.
However, there are still significant gaps in our current understanding of these species and their habitat needs, especially concerning the degree to which individual cave systems are or are not connected to one another. We did not receive any additional information as to the extent of the importance of intercave dispersal corridors or any information that would allow us to identify where these corridors are specifically located. Absent this information, we are unable to designate as critical habitat any areas that may provide connectivity between cave systems. First of all, we do not have data to show that such connectivity is occurring and if it is, to what extent and what importance does it play in the continued existence of the
Therefore, this final critical habitat designation is based on what we are at this time able to identify as essential to the conservation of these two species: multiple cave systems (
In determining critical habitat for these species, we started with lands within the region containing geologic and soil characters similar or identical to those of known, occupied, accessible caves. This area includes the Waikomo-Kalihi-Koloa soil association (Foote
Within these areas, we designated sites where either the Kauai cave amphipod or the Kauai cave wolf spider have been verified as occurring. We set out the following buffers to capture the adjacent mesocaverns where the animals are likely to spend the majority of their time as previously discussed in this rule. In cases where development was not complete, whenever possible, a 61 meter (200 ft) buffer was included around caves. Information provided during the comment period showed that a previous archeological and biological cave survey was done (Hammatt
For those areas where surveys showed they were highly likely to contain suitable habitat and the animals were likely to occur, we designated the entire area to be sure we would capture any caves and the surrounding mesocaverns. The addition of these areas is essential to the conservation of the species because they create a widely distributed pattern of protected areas across the best habitat throughout the Koloa basin. This wide distribution protects the species from a single catastrophic event and therefore is essential to the conservation of both species.
Because a recovery plan has not been completed for either of these species, in making this determination, we looked to areas where the Kauai cave wolf spider and the Kauai cave amphipod have been verified and also included those areas that are highly likely to contain these animals. We looked for a distribution across geologically suitable habitat and conferred with the recognized expert on the necessary distribution of caves within the Koloa area to maintain both species (Dr. F. Howarth, pers. comm., 2002). This approach is consistent with the recovery outline for the Kauai cave wolf spider and the Kauai cave amphipod. If, after critical habitat for the Kauai cave wolf spider and the Kauai cave amphipod is designated, a final approved recovery plan for these animals calls for a different approach to the conservation of the Kauai cave wolf spider and the Kauai cave amphipod, we will consider amending the critical habitat designation.
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 are required to consider those physical and biological features essential to the species' conservation that may require special management considerations and protection. Such features are termed primary constituent elements, and include but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, minerals and other nutritional or physiological requirements; cover or shelter; and habitats that are protected from disturbance and represent the historic geographical and ecological distributions of the species.
The habitat requirements of the Kauai cave wolf spider and Kauai cave amphipod may differ slightly, as the wolf spider can feed on other arthropods that become trapped in caves or reside in caves facultatively. However, as observed elsewhere in Hawaii, the presence of a healthy, intact cave ecosystem, which includes roots or other sources of naturally occurring detritus and an associated detritivore or herbivore fauna, contains larger numbers of healthy troglobitic predators (A. Asquith, pers. comm., 2001). While native, troglobitic predators, detritivores, and herbivores may be present in caves lacking naturally occurring plant biomass, this situation represents an unhealthy cave ecosystem. Native troglobitic assemblages occurring in “sterile” caves (those lacking roots or other sources of active nutrient input) probably represent declining populations that will be extirpated as the existing plant biomass is consumed unless efforts are made to enhance condititions.
As with most troglobites, both the Kauai cave wolf spider and Kauai cave amphipod require dark or stagnant air zone habitats in caves. These zones typically have atmospheres with humidity at saturation levels (greater or equal to 100 percent), which is necessary to prevent desiccation and death of the troglobites.
A sustainable food base, such as the roots of living perennial plants or other sources of detritus, is necessary to support a breeding population and for the long-term survival of the Kauai cave amphipod and other herbivorous or detritivorous troglobites. In turn, healthy populations of herbivores or detritivores will help ensure that co-evolved predators, such as the Kauai cave wolf spider, will also persist as viable populations.
There is little information on what, if any, species of food plants are preferred by the Kauai cave amphipod. Since the amphipod is regarded as a detritivore, there may be little or no food specialization by these animals.
The primary constituent elements required by the Kauai cave wolf spider and the Kauai cave amphipod consist of the presence of subterranean spaces from 5 to 25 cm (0.2 in to 10 in) at the narrowest dimension (collectively termed “mesocaverns”), or caves or passages (spaces greater than 25 cm (10 in)), dark and/or stagnant air zones that maintain microclimates with humidity at saturation levels, and the presence of roots from living, non-toxic plants such as, but not limited to, ohia (
The areas designated as critical habitat for the Kauai cave wolf spider and the Kauai cave amphipod are designed to incorporate what is essential for their conservation. Habitat components that are essential for these two species include the primary biological needs of foraging, reproduction, intraspecific communication, intracave dispersal and intracave genetic exchange, or nonrestricted movement to appropriate microclimates in mesocaverns, and refugia from human-induced or other environmental threats. Caves and mesocaverns containing actively growing tree roots or other sources of detritus provide a food source for herbivorous or detritivorous troglobites, which in turn provide food for predators. Such caves will be necessary for the long-term persistence of viable populations of the endangered troglobites by providing areas for foraging and reproduction. Caves and or mesocaverns lacking food resources but containing appropriate microclimates may provide intracave corridors which facilitate movement and genetic exchange within populations. In addition, these areas may also provide refugia from areas impacted by human-induced or other environmental threats, such as when main cave passages become temporarily drier or otherwise less accomodating.
We used several criteria to identify and select lands for designation as critical habitat. First, we selected critical habitat areas based on the verified distributions of the Kauai cave wolf spider and the Kauai cave amphipod (known occupied habitat). Then we included additional areas containing mesocaverns surrounding the known occupied caves to capture habitat likely to be occupied and to allow for refugia.
The known occupied cave distribution is not sufficient to expect a reasonable probability of conservation of either species by protecting against threats including but not limited to, human intrusion, fluctuating humidity levels in caves, and loss through catastrophic events (
The inclusion of these identified caves, some of which were newly discovered, and their surrounding areas still did not provide for a wide enough distribution to protect against catastrophic events. Therefore, we looked to those areas within the Koloa basin where site visits indicated the presence of suitable habitat and therefore a high likelihood of the presence of the animals. We looked for areas with exposed barren basalt, proximity to the areas that were known to contain animals, soils less than a foot deep, native vegetation, and areas that had received the least known surface disturbance. These areas represent habitat likely to be occupied by one or both species and contain the greatest amount of intact mesocaverns with the required humidity levels necessary for the cave animals. These types of areas have been identified by Dr. Howarth as the ones most likely to be occupied by the Kauai cave amphipod and the Kauai cave wolf spider (Dr. F. Howarth, pers. comm., 2002).
To provide for the conservation of both species, a sufficient amount of limestone habitat needs to be present to provide refugia in case of a catastrophic event for those animals known to be existing in limestone habitat. We looked to areas closest to the known occupied limestone cave, with exposed limestone bench and native vegetation, with little or no prior surface disturbance, and with soils less than a foot deep. These places are where intact mesocaverns and caves with appropriate humidity levels necessary exist therefore, these areas are the places most likely to be occupied.
Areas within the appropriate geologic formations that have had long term or extensive surface disturbance, soil deposits greater than a foot deep, lack of native vegetation, or lack exposed barren basalt or limestone benches may still provide suitable habitat and animals may still occur there. However, it is more likely that the habitat will be relatively degraded, and thus the probability is lower that animals will be found there. However, if new information shows the discovery of additional caves and animals in the areas, and if warranted, we will consider this information in possible future revisions of this rule as time and available resources allow.
For the purpose of this determination, critical habitat units have been described using Universal Transverse Mercator (UTM) North American Datum of 1983 (NAD83) coordinates using a scale of 1:85,000. Soil series was determined using information and maps from soil surveys (Foote
We were unable to map the critical habitat unit boundaries in sufficient detail to exclude all existing developed lands that do not contain the primary constituent elements. However, as specified in the final rule language, existing features and structures within the boundaries of the mapped units that have resulted in below-surface modification or alteration are excluded from critical habitat designation. Existing human-constructed structures and features, such as large buildings, homes, major roads, and other activities or projects that involve trenching, filling, and/or excavation, which likely resulted in loss or degradation of the primary constituent elements, are therefore not included within this critical habitat designation. Such human-constructed structures and features would include homes and buildings for which the underlying bedrock has been altered for their construction through incorporation of or connection to buried structural foundations, septic tanks, city sewage and drainage systems, or water and underground electrical supply corridors and conduits. Additional areas that are also excluded from critical habitat
Lands designated as critical habitat provide at least one of the primary constituent elements needed by the Kauai cave wolf spider and Kauai cave amphipod, including, but not limited to, the presence of subterranean spaces from 5 to 25 cm (0.2 in to 10 in) at the narrowest dimension (collectively termed “mesocaverns”), or caves or passages (spaces greater than 25 cm (10 in)), dark and/or stagnant air zones that maintain microclimates with humidity at saturation levels, and the presence of roots from living, non-toxic plants such as, but not limited to, ohia (
Lands designated as critical habitat for the Kauai cave wolf spider and Kauai cave amphipod occur in 14 separate units. The approximate area encompassing the designation of critical habitat by land ownership is shown in Table 1.
Designated critical habitat includes land under private, county, and State ownership. Designated lands include areas known to be occupied by the Kauai cave wolf spider and the Kauai cave amphipod and include habitat with similar distribution of geologic and soil characteristics of known occupied habitat and that contain the most probable distribution of appropriate caves and mesocaverns. A brief description of each unit and reasons for including it as critical habitat are presented below.
Recent visits to this unit have found that the area is composed of exposed calcareous deposits containing cracks and solution pockets, which are indicative of the presence of underlying cave and mesocavern habitats. While accessible caves have not been located, air-passages, holes, and fissures visible above ground strongly suggest the presence of underlying caves or mesocaverns. Critical habitat is designated in this unit because of the cave-bearing nature of the geology, and
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Destruction or adverse modification occurs when a Federal action directly or indirectly alters critical habitat to the extent it appreciably diminishes the value of the critical habitat for the conservation of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat when their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a)(1) of the Act requires Federal agencies, including the Service, to use their authorities to carry out programs for the conservation of any species that is proposed or listed as endangered or threatened. Section 7(a)(4) of the Act requires Federal agencies (action agency) to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.
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 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, the Federal agency would ensure that the permitted actions do not destroy or adversely modify critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate formal 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 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.
If 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 formal 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 the likelihood of 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.
Activities on Federal lands that may affect the Kauai cave wolf spider or Kauai cave amphipod or their critical habitat will require section 7 consultation. Activities on private or State lands that may affect the species or their critical habitat and that require a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers (ACOE) under section 404 of the Clean Water Act, or some other Federal action, including funding (
Section 4(b)(8) of the Act requires us to evaluate briefly 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 result in the destruction or adverse modification of critical habitat include those that alter the primary constituent elements to an extent that the value of critical habitat for the conservation of the Kauai cave wolf spider and Kauai cave amphipod is appreciably reduced. We note that such activities also may jeopardize the continued existence of the species. Activities that may directly or indirectly adversely affect critical habitat for these cave animals include, but are not limited to:
(1) Removing, thinning, or destroying perennial surface vegetation occurring directly above or adjacent to the cave or within the cave (roots) or mesocaverns (as defined in the primary constituent elements discussion), whether by burning, or by mechanical, chemical, or other means (
(2) Activities within or outside of the cave or other mesocavern (
(3) Appreciably decreasing habitat value or quality through indirect effects (
(4) Application of pesticides, herbicides, insecticides, fungicides, or other such chemicals within, above, or adjacent to known habitat, that may directly or indirectly affect troglobitic organisms; and
(5) Release of certain biological control organisms within or outside of the critical habitat area. Biological organisms include, but are not limited to: Predaceous or parasitoid vertebrates or invertebrates, fungi, bacteria, or other natural or bioengineered biocontrol organisms.
Federal agencies already consult with us on activities in areas where the species may be affected by their projects to ensure that their actions do not jeopardize the continued existence of the species. These actions include, but are not limited to:
(1) Regulation of activities affecting waters of the United States by the ACOE under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and channelization by Federal agencies;
(3) Development on private or State lands requiring permits from other Federal agencies, such as the Department of Housing and Urban Development;
(4) Construction of communication sites licensed by the Federal Communications Commission;
(5) Road construction and maintenance, right-of-way designation, and regulation of agricultural activities by Federal agencies;
(6) Hazard mitigation and post-disaster repairs funded by the FEMA; and.
(7) Activities not previously mentioned that are funded or authorized by the U.S. Department of Agriculture (Forest Service, NRCS), Department of Defense, Department of Transportation, Department of Energy, Department of the Interior (U.S. Fish and Wildlife Service, U.S. Geological Survey, National Park Service), Department of Commerce (National Oceanic and Atmospheric Administration), ACOE, FEMA, Environmental Protection Agency, or any other Federal agency.
If you have questions regarding whether specific activities would constitute adverse modification of critical habitat, contact the Field Supervisor, Pacific Islands Ecological Service's Field Office (
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 an area from critical habitat when that exclusion will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat designation on March 27, 2002, a draft economic analysis was prepared to estimate the potential economic impact of the designation, in accordance with recent decisions in the
Following the close of the comment period on the draft economic analysis, a final addendum was completed, which incorporated public comments on the draft analysis and made other changes in the draft as necessary. In particular, the addendum focuses on the 272 acres and associated impacts that will be associated with the designation. The addendum to the draft economic analysis estimates that, over the next 18 years, the designation may result in potential direct economic effects ranging from approximately $260,000 to $429,000. The reduction ranging from approximately $56.2 million to $61.8 million from the costs estimated in the original draft economic analysis is primarily due to the significant reduction of acreage in proposed Units 1a and 2, and the removal of proposed Units 1b and 3 in the final critical habitat designation for the cave animals. These changes reduce the total critical habitat acreage from approximately 4,193 acres to 272 acres, a reduction of 3,921 acres or 94 percent. As described in the analysis, direct costs result from section 7 consultation, surveys, and project modifications associated with activities such as a county road (Koloa Bypass) widening project, and expansion of Kiahuna golf course.
Our final economic analysis includes an evaluation of potential indirect costs associated with designation of critical habitat for the Kauai cave wolf spider and Kauai cave amphipod. Based on the final economic analysis, the indirect costs are associated with actual or perceived loss of development potential and are expressed in terms of a loss in property value. These values reflect: Landowner's development plans (if any); existing entitlements; the probability of obtaining remaining development approvals (State redistricting, General Plan designation by the county, county zoning,
A more detailed discussion of our economic analysis is contained in the addendum. It is available for inspection at the Pacific Islands Fish and Wildlife Office (
No critical habitat units in the proposed rule were excluded or modified due to economic impacts because the expected cost of the designation (
As described above, section 4(b)(2) of the Act also requires us to consider other relevant impacts, in addition to economic impacts, of designating critical habitat. No critical habitat units were excluded or modified due to non-economic impacts.
In accordance with Executive Order 12866, the Office of Management and Budget (OMB) has determined that this critical habitat designation is not a significant regulatory action. This rule will not have an annual economic effect of $100 million or more or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. This designation will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. It will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Finally, this designation will not raise novel legal or policy issues. Accordingly, OMB has not reviewed this final critical habitat designation.
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (
Federal courts and Congress have indicated that an RFA/SBREFA analysis should be limited to all impacts to entities directly subject to the requirements of the regulation (Service 2002). Directly regulated entities may laso be indirectly impacted and these indirect impacts should be considered. Therefore, entities not directly regulated by the listing or critical habitat designation are not considered in this section of the analysis.
In today's rule, we are certifying that the designation of critical habitat for the Kauai cave amphipod and the Kauai cave wolf spider will not have a significant effect on a substantial number of small entities. The following discussion explains our rationale.
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. The RFA/SBREFA defines “small governmental jurisdiction” as the government of a city, county, town, school district with a population of less than 50,000. By this definition, Federal government agencies are not small business under SBA guidelines and State agencies are not considered small governments under RFA. Kauai County is also not a small governmental jurisdiction because it has a population greater than 50,000. 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 (
Based on our final economic analysis, the primary projects and activities that could be affected by the critical habitat designation include Service conservation agreements, NRCS conservation programs, FHWA funding road projects, ACOE section 404 permits, Kauai County Department of Public Works (DPW) road project, and two private entities—Grove Farm partial funding of a survey for a conservation project and KG Kauai Development (KGKD)/Kobayashi Group LLC planned golf courses. For the purposes of the RFA/SBREFA, Federal agencies are not considered small governments. Accordingly, the Service, NRCS, FHWA, and ACOE are not considered small entities. As mentioned above, county agencies such as the DPW are not considered small entities. The primary business activity of Grove Farm is real estate asset management. The SBA defines a business in the real estate asset management industry as small if its annual sales are less than $1.5 million. According to this definition and 2000 sales information, Grove Farm is not a small business. KGKD is affiliated with Kobayashi Group, LLC (Kobayashi). Kobayashi's primary business activity is real estate asset management. The SBA defines a business in the real estate asset-management industry as small if its annual sales are less than $1.5 million. Kobayashi is a private business, and its annual sales figures are not listed in the Dun & Bradstreet database. However, the Kobayashi Group owns the following properties: two hotels in Waikiki, the Ocean Resort Hotel Waikiki (450 rooms), and the Queen Kapiolani Hotel (314 rooms); three golf courses; developable land in Koloa; and possibly other property. Rough estimates of the revenues generated from these properties suggest that annual revenues for the Kobayashi Group are at least $24 million [(764 rooms × 70 percent occupancy × $100 per room × 365 days) + (3 golf courses × 30,000 rounds of golf per year × $50 per round) = $24 million per year]. According to the RFA/SBREFA regulations, the SBA counts
The Kauai cave wolf spider and the Kauai cave amphipod have only been listed since January 2000 and no consultations have occurred involving these species. As a result, the requirement to reinitiate consultations for ongoing projects will not affect a substantial number of small entities on Kauai.
None of the designation is on Federal lands. On non-Federal lands, activities that lack Federal involvement would not be affected by the critical habitat designations. However, activities of an economic nature that are likely to occur on non-Federal lands in the area encompassed by these designations consist of housing or resort development that may require permits from the Department of Housing and Urban Development, small farms that may receive funding or require authorizations from the Department of Agriculture, or restoration projects sponsored by NRCS. In addition, consultation with the ACOE may occur if a permit is required for a project in Waikomo Stream that may negatively impact adjacent cave systems. Waikomo Stream runs between two known occupied cave systems and consultation may be required if the activities on the stream may affect the cave systems and the Kauai cave amphipod and Kauai cave wolf spider. However, we are not aware of a significant number of future activities that would require Federal funds, permits, or authorizations in the designated areas. Two to three small fruit and vegetable farmers may be impacted by the designation but these entities do not represent a substantial number of the total small entities in these industries. Therefore, we conclude that the rule would not affect a substantial number of small entities.
Even where the requirements of section 7 might apply due to critical habitat, 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.
For these reasons, we are certifying that the designation of critical habitat for the Kauai cave wolf spider and the Kauai cave amphipod will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required.
Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy production supply and distribution facilities because no significant energy production, supply, and distribution facilities are included within designated critical habitat. Further, for the reasons described in the economic analysis, we do not believe that designation of critical habitat for the Kauai cave amphipod and the Kauai cave wolf spider will affect future energy production. 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 August 25, 2000
(a) For the reasons described in the final economic analysis, this rule will not produce a Federal mandate on State or local 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. Further, the designation of critical habitat imposes no direct obligations on State or local governments.
(b) This rule will not “significantly or uniquely” affect small governments, so 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 authorizations. Any such activities will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the Kauai cave wolf spider and the Kauai cave amphipod in a takings implication assessment. The takings implications assessment concludes that this final rule does not pose significant takings implications.
In accordance with Executive Order 13132, this final rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of Interior policy, we requested information from appropriate State agencies in Hawaii.
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 specifically identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning, rather than waiting for a case-by-case section 7 consultation to occur.
In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have designated critical habitat in accordance with the provisions of the 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 the Kauai cave wolf spider and Kauai cave amphipod.
This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act is required. 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 OMB Control Number.
We have determined that we do not need to prepare an Environmental Assessment 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. 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 recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands essential for the conservation of the Kauai cave wolf spider and Kauai cave amphipod. Therefore, designation of critical habitat for these species does not involve any Tribal lands.
A complete list of all references cited in this final rule is available, upon request, from the Pacific Islands Fish and Wildlife Office (
This rule was primarily prepared by the Pacific Islands Fish and Wildlife Office (
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless oherwise noted.
(h) * * *
(g)
(1) Critical habitat units are depicted for the island of Kauai, Hawaii, on the maps below.
(2) The primary constituent elements for the Kauai cave wolf spider are:
(i) The presence of subterranean spaces from 5 mm to 25 cm (0.2 in to 10 in) at their narrowest point (collectively termed “mesocaverns”) and/or cave passages greater than 25 cm (>10 in);
(ii) Dark and/or stagnant air zones that maintain relative humidity at saturation levels (≥100 percent); and
(iii) The presence in these types of mesocaverns or caves of roots from living, nontoxic plants such as, but not limited to, ohia (
(3) All critical habitat areas contain one or more of the primary constituent elements for the Kauai cave wolf spider.
(4)(i) Existing human-constructed features and structures within the boundaries of mapped units that involved trenching, filling, or excavation resulting in below-surface modification or alteration would not contain either of the primary constituent elements and are excluded from critical habitat designation. Such features and structures include but are not limited to:
(ii) Areas that have been modified on the surface but without trenching, filling, or excavation resulting in below-surface modification or alteration are included in the critical habitat designation, even if they are adjacent to areas that have undergone below-surface modification.
(5) Critical habitat units are described below. Coordinates in UTM Zone 4 with units in meters using North American Datum of 1983 (NAD83). The following map shows the general locations of the 14 critical habitat units designated on the island of Kauai.
(i)
(6) Unit 1—(<1 ha (1 ac)):
(i) Unit 1 consists of the following 10 boundary points with the following coordinates in UTM Zone 4, with the units in meters, using North American Datum of 1983 (NAD83): Start at 450554, 2420457; 450546, 2420468; 450576, 2420510; 450586, 2420518; 450607, 2420516; 450624, 2420502; 450625, 2420480; 450618, 2420452; 450600, 2420437; 450574, 2420434; return to starting point.
(ii)
(7) Unit 2—(7 ha (16 ac)):
(i) Unit 2 consists of the following 16 boundary points with the following coordinates in UTM Zone 4, with the
(ii)
(8) Unit 3—(6 ha (16 ac)):
(i) Unit 3 consists of the following 14 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 450881, 2419947; 450879, 2419981; 450855, 2420053; 450859, 2420089; 450903, 2420089; 451012, 2420125; 451058, 2420191; 451138, 2420180; 451184, 2420119; 451159, 2420048; 451194, 2420014; 451183, 2419982; 451136, 2419987; 451114, 2419892; return to starting point.
(ii)
(9) Unit 4—(2 ha (6 ac)):
(i) Unit 4 consists of the following 33 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452087, 2419809; 452063, 2419804; 452053, 2419805; 452040, 2419807; 452027, 2419811; 452007, 2419824; 451994, 2419844; 451989, 2419867; 451994, 2419890; 452007, 2419910; 452027, 2419923; 452045, 2419927; 452053, 2419932; 452076, 2419936; 452082, 2419936; 452084, 2419936; 452090, 2419939; 452095, 2419942; 452096, 2419943; 452118, 2419954; 452145, 2419960; 452168, 2419955; 452188, 2419942; 452201, 2419922; 452206, 2419899; 452201, 2419876; 452188, 2419856; 452172, 2419844; 452153, 2419835; 452132, 2419822; 452123, 2419817; 452099, 2419812; 452093, 2419812; return to starting point.
(ii)
(10) Unit 5—(1 ha (2 ac)):
(i) Unit 5 consists of the following 35 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452493, 2420608; 452493, 2420613; 452493, 2420616; 452496, 2420639; 452492, 2420652; 452491, 2420660; 452492, 2420669; 452497, 2420683; 452498, 2420686; 452502, 2420694; 452516, 2420711; 452518, 2420713;
(ii) Unit 5 is depicted on Map 3—Units 5, 6, 7, and 8—below.
(11) Unit 6—(2 ha (4 ac)):
(i) Unit 6 consists of the following 21 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 453052, 2420607; 453065, 2420616; 453078, 2420622; 453101, 2420626; 453126, 2420621; 453139, 2420616; 453154, 2420606; 453164, 2420591; 453167, 2420579; 453169, 2420551; 453165, 2420533; 453156, 2420517; 453141, 2420500; 453127, 2420490; 453109, 2420486; 453078, 2420490; 453053, 2420505; 453042, 2420522; 453034, 2420543; 453032, 2420559; 453036, 2420585; return to starting point.
(ii) Unit 6 is depicted on Map 3—Units 5, 6, 7, and 8—below.
(12) Unit 7—(3 ha (9 ac)):
(i) Unit 7 consists of the following 7 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452623, 2421100; 452812, 2421077; 452831, 2421041; 452816, 2421016; 452786, 2420896; 452590, 2420946; 452608, 2421015; return to starting point.
(ii) Unit 7 is depicted on Map 3—Units 5, 6, 7, and 8—below.
(13) Unit 8—(2 ha (7 ac)):
(i) Unit 8 consists of the following 33 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452763, 2421383; 452759, 2421402; 452760, 2421421; 452767, 2421462; 452766, 2421477; 452768, 2421497; 452771, 2421510; 452780, 2421523; 452812, 2421556; 452824, 2421564; 452831, 2421567; 452848, 2421571; 452857, 2421571; 452875, 2421567; 452890, 2421557; 452899, 2421542; 452904, 2421531; 452907, 2421514; 452908, 2421497; 452904, 2421480; 452899, 2421471; 452902, 2421454; 452900, 2421439; 452894, 2421422; 452891, 2421412; 452891, 2421402; 452888, 2421385; 452880, 2421368; 452871, 2421355; 452844, 2421338; 452822, 2421335; 452799, 2421339; 452778, 2421357; return to starting point.
(ii) Unit 8 is depicted on Map 3—Units 5, 6, 7, and 8—which follows:
(14) Unit 9—(1 ha (4 ac)):
(i) Unit 9 consists of the following 5 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452568, 2422604; 452577, 2422610; 452696, 2422521; 452580, 2422429; 452537, 2422471; return to starting point.
(ii)
(15) Unit 10—(14 ha (35 ac)):
(i) Unit 10 consists of the following 14 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452688, 2421988; 452834, 2422427; 453145, 2422210; 453061, 2422147; 453053, 2422133; 453053, 2422102; 453061, 2422078; 453074, 2422029; 453002, 2421944; 453015, 2421922; 453022, 2421892; 452896, 2421910; 452733, 2421917; 452705, 2421959; return to starting point.
(ii)
(16) Unit 11—(4 ha (10 ac)):
(i) Unit 11 consists of the following 17 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 453958, 2419773; 453976, 2419766; 453999, 2419741; 454054, 2419702; 454068, 2419667; 454060, 2419596; 454042, 2419553; 454005, 2419528; 453962, 2419521; 453894, 2419545; 453872, 2419573; 453862, 2419600; 453852, 2419642; 453862, 2419676; 453887, 2419718; 453912, 2419742; 453936, 2419768; return to starting point.
(ii)
(17) Unit 12 (6 ha (16 ac)):
(i) Unit 12 consists of the following 21 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 454185, 2420229; 454242, 2420243; 454326, 2420241; 454387, 2420207; 454420, 2420147; 454475, 2420133; 454502, 2420080; 454474, 2420055; 454366, 2419954; 454341, 2419944; 454321, 2419921; 454311, 2419895; 454286, 2419903; 454264, 2419927; 454229, 2419962; 454208, 2419993; 454186, 2420038; 454169, 2420058; 454145, 2420086; 454112, 2420103; 454120, 2420133; return to starting point.
(ii)
(18) Unit 13—(21 ha (52 ac)):
(i) Unit 13 consists of the following 43 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 457108, 2420666; 457027, 2420606; 456763, 2420391; 456727, 2419912; 456456, 2419772; 455868, 2419764; 455633, 2419645; 455601, 2419531; 455389, 2419219; 455225, 2419029; 455014, 2418947; 455014, 2419015; 454926, 2419043; 455027, 2419064; 455102, 2419103; 455202, 2419192; 455255, 2419258; 455300, 2419334; 455508, 2419515; 455586, 2419614; 455664, 2419674; 455767, 2419730; 455859, 2419764; 455969, 2419780; 456212, 2419805; 456272, 2419811; 456376, 2419831; 456451, 2419859; 456531, 2419900; 456583, 2419935; 456627, 2419981; 456656, 2420036; 456682, 2420173; 456709, 2420316; 456718, 2420343; 456704, 2420433; 456723, 2420583; 456747, 2420580; 456771, 2420584; 456786, 2420569; 456848, 2420572; 456979, 2420634; 457022, 2420649; return to starting point.
(ii)
(19) Unit 14—(39 ha (96 ac)):
(i) Unit 14 consists of the following 47 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Coastline. 457575, 2420977; 457548, 2420981; 457598, 2421002; 457624, 2421039; 457624, 2421039; 457624, 2421039; 457664, 2421105; 457715, 2421146; 457755, 2421170; 457901, 2421204; 458025, 2421342; 458025, 2421367; 458078, 2421412; 458078, 2421413; 458078, 2421413; 458184, 2421510; 458226, 2421607; 458226, 2421607; 458226, 2421607; 458259, 2421727; 458308, 2421809; 458371, 2421876; 458405, 2421905; 458237, 2422080; 458301, 2422271; 458346, 2422339; 458686, 2422403; 458785, 2422371; 458932, 2422252; 458997, 2422153; Coastline. 458706, 2421920; 458670, 2421988; 458662, 2422059; 458688, 2422116; 458778, 2422112; 458809, 2422160; 458719, 2422266; 458630, 2422266; 458556, 2422191; 458563, 2422061; 458479, 2421989; 458500, 2421803.
(ii)
(h) Crustaceans.
Kauai cave amphipod (
(1) Critical habitat units are depicted for the island of Kauai, Hawaii, on the maps below.
(2) The primary constituent elements for the Kauai cave amphipod are:
(i) The presence of subterranean spaces from 5 mm to 25 cm (0.2 in to 10 in) at their narrowest point (collectively termed “mesocaverns”) and/or cave passages greater than 25 cm (>10 in);
(ii) Dark and/or stagnant air zones that maintain relative humidity at saturation levels (≥100 percent); and
(iii) The presence in these types of mesocaverns or caves of roots from living, nontoxic plants such as, but not limited to, ohia (
(3) All critical habitat areas contain one or more of the primary constituent elements for the Kauai cave amphipod.
(4)(i) Existing human-constructed features and structures within the boundaries of mapped units that involved trenching, filling, or excavation resulting in below-surface modification or alteration would not contain either of the primary constituent elements and are excluded from critical habitat designation. Such features and structures include but are not limited to: Homes and buildings for which the underlying bedrock has been altered for their construction or through incorporation of or connection to buried structural foundations, septic tanks, city sewage and drainage systems, or water or underground electrical supply corridors; paved roads; and areas previously or currently used as a quarry.
(ii) Areas that have been modified on the surface but without trenching, filling, or excavation resulting in below-surface modification or alteration are included in the critical habitat designation, even if they are adjacent to areas that have undergone below-surface modification.
(5) Critical habitat units are described below. Coordinates in UTM Zone 4 with units in meters using North American Datum of 1983 (NAD83). The following map shows the general locations of the 14 critical habitat units designated on the island of Kauai.
(i)
(6) Unit 1—(<1 ha (1 ac)):
(i) Unit 1 consists of the following 10 boundary points with the following coordinates in UTM Zone 4, with the units in meters, using North American Datum of 1983 (NAD83): Start at 450554, 2420457; 450546, 2420468; 450576, 2420510; 450586, 2420518; 450607, 2420516; 450624, 2420502; 450625, 2420480; 450618, 2420452; 450600, 2420437; 450574, 2420434; return to starting point.
(ii)
(7) Unit 2—(7 ha (16 ac)):
(i) Unit 2 consists of the following 16 boundary points with the following coordinates in UTM Zone 4, with the units in meters, using North American Datum of 1983 (NAD83): Start at 451483, 2420974; 451539, 2420991; 451583, 2421015; 451622, 2421014; 451667, 2420984; 451677, 2420926; 451680, 2420869; 451705, 2420799; 451622, 2420769; 451650, 2420664; 451488, 2420620; 451468, 2420624; 451433, 2420642; 451470, 2420758; 451501, 2420801; 451510, 2420870; return to starting point.
(ii)
(8) Unit 3—(6 ha (16 ac)):
(i) Unit 3 consists of the following 14 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 450881, 2419947; 450879, 2419981; 450855, 2420053; 450859, 2420089; 450903, 2420089; 451012, 2420125; 451058, 2420191; 451138, 2420180; 451184, 2420119; 451159, 2420048; 451194, 2420014; 451183, 2419982; 451136, 2419987; 451114, 2419892; return to starting point.
(ii)
(9) Unit 4—(2 ha (6 ac)):
(i) Unit 4 consists of the following 33 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452087, 2419809; 452063, 2419804; 452053, 2419805; 452040, 2419807; 452027, 2419811; 452007, 2419824; 451994, 2419844; 451989, 2419867; 451994, 2419890; 452007, 2419910; 452027, 2419923; 452045, 2419927; 452053, 2419932; 452076, 2419936; 452082, 2419936; 452084, 2419936; 452090, 2419939; 452095, 2419942; 452096, 2419943; 452118, 2419954; 452145, 2419960; 452168, 2419955; 452188, 2419942; 452201, 2419922; 452206, 2419899; 452201, 2419876; 452188, 2419856; 452172, 2419844; 452153, 2419835; 452132, 2419822; 452123, 2419817; 452099, 2419812; 452093, 2419812; return to starting point.
(ii)
(10) Unit 5—(1 ha (2 ac)):
(i) Unit 5 consists of the following 35 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452493, 2420608; 452493, 2420613; 452493, 2420616; 452496, 2420639; 452492, 2420652; 452491, 2420660; 452492, 2420669; 452497, 2420683; 452498, 2420686; 452502, 2420694; 452516, 2420711; 452518, 2420713; 452528, 2420720; 452540, 2420722; 452552, 2420720; 452561, 2420713; 452568, 2420704; 452570, 2420692; 452568, 2420680; 452564, 2420673; 452553, 2420660; 452556, 2420649; 452557, 2420641; 452557, 2420637; 452554, 2420613; 452555, 2420611; 452555, 2420607; 452553, 2420595; 452546, 2420585; 452536, 2420579; 452525, 2420576; 452513, 2420579; 452503, 2420585; 452496, 2420595; 452494, 2420602; return to starting point.
(ii) Unit 5 is depicted on Map 3—Units 5, 6, 7, and 8—below.
(11) Unit 6—(2 ha (4 ac)):
(i) Unit 6 consists of the following 21 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 453052, 2420607; 453065, 2420616; 453078, 2420622; 453101, 2420626; 453126, 2420621; 453139, 2420616; 453154, 2420606; 453164, 2420591; 453167, 2420579; 453169, 2420551; 453165, 2420533; 453156, 2420517; 453141, 2420500; 453127, 2420490; 453109, 2420486; 453078, 2420490; 453053, 2420505; 453042, 2420522;
(ii) Unit 6 is depicted on Map 3—Units 5, 6, 7, and 8—below.
(12) Unit 7—(3 ha (9 ac)):
(i) Unit 7 consists of the following 7 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452623, 2421100; 452812, 2421077; 452831, 2421041; 452816, 2421016; 452786, 2420896; 452590, 2420946; 452608, 2421015; return to starting point.
(ii) Unit 7 is depicted on Map 3—Units 5, 6, 7, and 8—below.
(13) Unit 8—(2 ha (7 ac)):
(i) Unit 8 consists of the following 33 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452763, 2421383; 452759, 2421402; 452760, 2421421; 452767, 2421462; 452766, 2421477; 452768, 2421497; 452771, 2421510; 452780, 2421523; 452812, 2421556; 452824, 2421564; 452831, 2421567; 452848, 2421571; 452857, 2421571; 452875, 2421567; 452890, 2421557; 452899, 2421542; 452904, 2421531; 452907, 2421514; 452908, 2421497; 452904, 2421480; 452899, 2421471; 452902, 2421454; 452900, 2421439; 452894, 2421422; 452891, 2421412; 452891, 2421402; 452888, 2421385; 452880, 2421368; 452871, 2421355; 452844, 2421338; 452822, 2421335; 452799, 2421339; 452778, 2421357; return to starting point.
(ii) Unit 8 is depicted on Map 3—Units 5, 6, 7, and 8—which follows:
(14) Unit 9—(1 ha (4 ac)):
(i) Unit 9 consists of the following 5 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452568, 2422604; 452577, 2422610; 452696, 2422521; 452580, 2422429; 452537, 2422471; return to starting point.
(ii)
(15) Unit 10—(14 ha (35 ac)):
(i) Unit 10 consists of the following 14 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 452688, 2421988; 452834, 2422427; 453145, 2422210; 453061, 2422147; 453053, 2422133; 453053, 2422102; 453061, 2422078; 453074, 2422029; 453002, 2421944; 453015, 2421922; 453022, 2421892; 452896, 2421910;
(ii)
(16) Unit 11—(4 ha (10 ac)):
(i) Unit 11 consists of the following 17 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 453958, 2419773; 453976, 2419766; 453999, 2419741; 454054, 2419702; 454068, 2419667; 454060, 2419596; 454042, 2419553; 454005, 2419528; 453962, 2419521; 453894, 2419545; 453872, 2419573; 453862, 2419600; 453852, 2419642; 453862, 2419676; 453887, 2419718; 453912, 2419742; 453936, 2419768; return to starting point.
(ii)
(17) Unit 12 (6 ha (16 ac)):
(i) Unit 12 consists of the following 21 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 454185, 2420229; 454242, 2420243; 454326, 2420241; 454387, 2420207; 454420, 2420147; 454475, 2420133; 454502, 2420080; 454474, 2420055; 454366, 2419954; 454341, 2419944; 454321, 2419921; 454311, 2419895; 454286, 2419903; 454264, 2419927; 454229, 2419962; 454208, 2419993; 454186, 2420038; 454169, 2420058; 454145, 2420086; 454112, 2420103; 454120, 2420133; return to starting point.
(ii)
(18) Unit 13—(21 ha (52 ac)):
(i) Unit 13 consists of the following 43 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Start at 457108, 2420666; 457027, 2420606; 456763, 2420391; 456727, 2419912; 456456, 2419772; 455868, 2419764; 455633, 2419645; 455601, 2419531; 455389, 2419219; 455225, 2419029; 455014, 2418947; 455014, 2419015; 454926, 2419043; 455027, 2419064; 455102, 2419103; 455202, 2419192; 455255, 2419258; 455300, 2419334; 455508, 2419515; 455586, 2419614; 455664, 2419674; 455767, 2419730; 455859, 2419764; 455969, 2419780; 456212, 2419805; 456272, 2419811; 456376, 2419831; 456451, 2419859; 456531, 2419900; 456583, 2419935; 456627, 2419981; 456656, 2420036; 456682, 2420173; 456709, 2420316; 456718, 2420343; 456704, 2420433; 456723, 2420583; 456747, 2420580; 456771, 2420584; 456786, 2420569; 456848, 2420572; 456979, 2420634; 457022, 2420649; return to starting point.
(ii)
(19) Unit 14—(39 ha (96 ac)):
(i) Unit 14 consists of the following 47 boundary points with the following coordinates in UTM Zone 4, with the units in meters using North American Datum of 1983 (NAD83): Coastline. 457575, 2420977; 457548, 2420981; 457598, 2421002; 457624, 2421039; 457624, 2421039; 457624, 2421039; 457664, 2421105; 457715, 2421146; 457755, 2421170; 457901, 2421204; 458025, 2421342; 458025, 2421367; 458078, 2421412; 458078, 2421413; 458078, 2421413; 458184, 2421510; 458226, 2421607; 458226, 2421607; 458226, 2421607; 458259, 2421727; 458308, 2421809; 458371, 2421876; 458405, 2421905; 458237, 2422080; 458301, 2422271; 458346, 2422339; 458686, 2422403; 458785, 2422371; 458932, 2422252; 458997, 2422153; Coastline. 458706, 2421920; 458670, 2421988; 458662, 2422059; 458688, 2422116; 458778, 2422112; 458809, 2422160; 458719, 2422266; 458630, 2422266; 458556, 2422191; 458563, 2422061; 458479, 2421989; 458500, 2421803.
(ii)
Employee Benefits Security Administration, Labor.
Final rule.
This document contains a regulation under the Employee Retirement Income Security Act of 1974, as amended, (ERISA or the Act) setting forth specific criteria that, if met and if certain other factors set forth in the regulation are not present, constitute a finding by the Secretary of Labor (the Secretary) that a plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40) of ERISA. Employee welfare benefit plans, such as health care plans, that meet the requirements of the regulation are excluded from the definition of “multiple employer welfare arrangements” under section 3(40) of ERISA and consequently are not subject to state regulation of multiple employer welfare arrangements as provided for by the Act. Regulations published elsewhere in this issue of the
June 9, 2003.
Elizabeth A. Goodman, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5669, Washington, DC 20210, (202) 693-8510. This is not a toll-free number.
Section 3(40) of ERISA defines the term multiple employer welfare arrangement (MEWA), in pertinent part, as an employee welfare benefit plan, or any other arrangement (other than an employee welfare benefit plan), which is established or maintained for the purpose of offering or providing any benefit described in paragraph (1) of section 3 of the Act to the employees of two or more employers (including one or more self-employed individuals), or to their beneficiaries, except that such term does not include any such plan or other arrangement which is established or maintained under or pursuant to one or more agreements which the Secretary finds to be collective bargaining agreements.
This definition was added to ERISA by the Multiple Employer Welfare Arrangement Act of 1983, Sec. 302(b), Pub. L. 97-473, 96 Stat. 2611, 2612 (29 U.S.C. 1002(40)) (the MEWA amendments), which also amended section 514(b) of ERISA to narrow the scope of federal preemption of state laws applicable to MEWAs. The purpose of the MEWA amendments generally was to permit states to regulate employee welfare benefit plans that are MEWAs; the extent of the states' jurisdiction over such entities under the MEWA amendments depends on whether or not the MEWA is fully insured. Sec. 302(b), Pub.L. 97-473, 96 Stat. 2611, 2613 (29 U.S.C. 1144(b)(6)).
The Multiple Employer Welfare Arrangement Act of 1983, which was introduced to counter what the Congressional drafters termed abuse by the “operators of bogus ‘insurance’ trusts,”
The Department of Labor (the Department) notes that also appearing in today's
On October 27, 2000, the Department published a notice in the
The proposed regulations followed the recommendations of the ERISA section 3(40) Negotiated Rulemaking Advisory Committee (the Committee). The Committee was convened under the Negotiated Rulemaking Act (the NRA)
The criteria regulation set forth standards that, if satisfied, would constitute a finding by the Secretary that a plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40).
The proposed regulation established four general criteria for a finding that a plan was established or maintained under or pursuant to collective bargaining for purposes of section 3(40)(A)(i). First, the entity in question had to be an employee welfare benefit plan within the meaning of ERISA section 3(1). Second, the preponderance of those participants covered by the plan (at least 80%) had to have a nexus to the bargaining relationships under or pursuant to which the plan was established or maintained (referred to as the “nexus” group or test). Third, the agreements under or pursuant to which the plan is established or maintained had to have certain characteristics that indicate that they were, for purposes of section 3(40) of ERISA only, collective bargaining agreements, including that the agreements were the product of a “
The proposed criteria regulation included a ninth non-specific “factor” in the list. The ninth factor indicated that the Secretary would consider, in making a finding, whether “other objective or subjective indicia of actual collective bargaining and representation” were present. The inclusion of this “catch-all” factor recognized that, in any particular case, other facts might need to be taken into account to determine whether a
The proposed criteria regulation also specified circumstances that, if present, would lead to a conclusion that an employee welfare benefit plan is not established or maintained under or pursuant to one or more agreements that the Secretary finds to be collective bargaining agreements. The regulation stated that, for any plan year in which the specified circumstances were present, a plan that otherwise met the criteria of the regulation should not be deemed to be excluded from the MEWA definition by virtue of section 3(40)(A)(i).
The proposed regulation provided that, under certain limited circumstances, an entity would be permitted to petition the Secretary for an individual finding. The ability to petition, however, would arise under the proposed regulation only if a state's law or jurisdiction had been asserted against the entity in an administrative or judicial proceeding. The procedural regulations set forth specific processes for petitioning for an individual finding.
Subsequent to publication of the proposed regulations, the Department received seven public comments. The Department reconvened the Committee and held a public meeting on March 1, 2002, to obtain the Committee's views on the public comments. Minutes of this meeting, as well as other meetings, of the Committee are available for inspection by the public in the Department's Public Disclosure Room, 200 Constitution Avenue, NW., N1513, Washington, DC 20210.
The following discussion summarizes the issues raised by the public comments, the Committee's discussion of those issues at the public meeting, and the Department's decisions, which are reflected in the final regulations.
Two commenters suggested that the Department should expand the list of factors indicative of a
In discussing these comments, the Committee noted that these issues were not new and had been considered by the Committee in its initial deliberations. It was noted that the language of the proposed regulation went as far as possible to be inclusive of various types of collective bargaining relationships. The purpose of the ninth “catch-all” factor is to take into account that the eight specific factors may not encompass all
After consideration of the comments and the Committee's discussion, the Department has decided not to expand or modify the factors presumptive of a
The Department also declines to add to the factors, as suggested by one commenter, the fact that the plan is maintained on sound actuarial principles. Although maintaining a plan on sound actuarial principles is important in other regards, that a plan is actuarially sound does not necessarily
The Department notes, however, that the final regulations are structured to take into account the possibility that a
The Department received one comment suggesting that the definition of collective bargaining agreement in section 2510.3-(40)(b)(3) needed to be modified to correct a technical defect. As proposed, the regulation required that a plan be “incorporated or referenced in a written agreement between two or more employers and one or more employee organizations.” The commenter argued that the requirement of a minimum of two employers, rather than one, was unnecessarily narrow, since there may be situations where a plan that originally was established or maintained under or pursuant to a collective bargaining agreement signed by two or more employers, is now maintained only by one due to a dwindling number of participating employers, although the plan still covers the employees of more than one employer.
The Committee, in discussing this issue, considered whether, in addition to the reasons articulated by the commenter, the language of paragraph 2510.3-40(b)(3) should be changed to make clear that the regulation applies to plans established or maintained under or pursuant to collective bargaining by a single employer but covering the employees of other employers who do not bind themselves to the collective bargaining agreement. It was noted that such entities are MEWAs. The Committee's discussion focused on the fact that it is important for the regulation to make clear that such entities are subject to evaluation under the regulation to see whether in fact they meet the exception under section 3(40) for plans established or maintained under or pursuant to collective bargaining.
On the basis of the public comment and the Committee's discussion, the Department has determined to amend 2510.3-40 to provide that the conditions of (b)(3) will be met if the written agreement referencing the plan is between one or more employers, rather than two or more employers, and one or more employee organizations.
As part of the process for determining whether a preponderance of the participants covered by the plan have a nexus to the bargaining relationships under or pursuant to which the plan is established or maintained, the proposed criteria regulation defined a “nexus group” of categories of participants who could be counted towards the 80% coverage level set in the proposed regulation as demonstrating such a preponderance. One commenter requested that the nexus group categories be expanded to include employees of an employer trade association that has negotiated any of the multiemployer agreements under or pursuant to which a plan is established or maintained. The commenter noted that the proposed regulation included, as part of the nexus group, employees of employee organizations that sponsor or jointly sponsor a plan, or are represented on the committee, joint board of trustees, or other similar group of representatives of the parties who sponsor the plan. The commenter noted that employees of employer associations might have a similar connection to the collective bargaining process. The commenter asserted that employer trade associations often are involved in negotiating collective bargaining agreements on behalf of many employers, and that such employers routinely become signatories to, or otherwise adopt, agreements that have been negotiated by their employer associations. The multiemployer plans that result from such bargaining often cover the employees of the employer association as well as the employees of the employers represented by the association.
The Committee concluded that, as a matter of parity, employees of an authorized representative of employers in collective bargaining should be included in the nexus group, just as are employees of the employee organization.
Based on its consideration of the comment and the Committee's discussion, the Department has determined to amend 2530.3-40(b)(2)(vi) to include, as a separate category, the employees of an authorized employer representative that actually engaged in the collective bargaining that led to the agreement that references the plan as described in 2510.3-40(b)(3)(i).
The Department received two comments suggesting that the regulation should be expanded to include certain types of entities that technically are not established or maintained under or pursuant to collective bargaining. The commenters were concerned that issuance of regulations providing clear guidance addressing what the Secretary finds to be collective bargaining for the purposes of the collective bargaining exception in 3(40) of ERISA might result in more state regulation of entities that are not established pursuant to collective bargaining than there had been in the absence of regulations.
The first commenter was a long-established MEWA that contended that it should be excluded from the scope of the MEWA definition pursuant to a “grandfather” provision in the regulation, allowing it to operate free of state regulation even though it is not a plan established or maintained under or pursuant to collective bargaining, because it had been operating on a financially sound basis for many years. A similar comment had been previously submitted to the Committee for consideration prior to the issuance of its Report to the Secretary. Another commenter requested that the preamble to the regulation discuss the nature of legal defense funds for peace officers, which are established by employee organizations for the employees of more than one employer, but are not actually the subject of collective bargaining.
The Committee reiterated its belief, as noted in the preamble to the proposed criteria regulation, that the regulation should serve only to define what constitutes a plan that is established or maintained under or pursuant to collective bargaining. The Department believes that the issues raised by these commenters go beyond the scope of the regulation and, therefore, has determined not to modify the final regulation in response to these comments.
One commenter expressed concern that the availability of administrative proceedings for an individualized section 3(40) finding in cases where the
Recognizing the need to ensure that the regulations assist, rather than hinder, state enforcement efforts against sham MEWA operators and that there are situations where time is of the essence for effective enforcement by the states, the Committee recommended that the regulatory language be clarified to emphasize that the section 3(40) ALJ proceedings are not a basis in themselves for a stay-of-state administrative or judicial proceedings against a putative MEWA.
As proposed, paragraph 2510.3-40(g)(2) of the criteria regulation provided that “nothing in this section or in part 2570, subpart H of this chapter is intended to have any effect on applicable law relating to stay or delay of a state administrative or court proceeding or enforcement subpoena.” In response to the commenter and the concerns of the Committee, the Department has amended that paragraph to state that “nothing in this section or in part 2570, subpart H of this chapter is intended to provide the basis for a stay or delay of a state administrative or court proceeding or enforcement of a subpoena.”
In its consideration of a final regulation, the Committee questioned whether consideration should be given to the effect of plan mergers on counting years of service for purposes of the determining the “nexus” group. In this regard, the Committee noted that the nexus group in section 2510.3-40(b)(2) includes retirees who either participated in the welfare benefit plan for at least five of the last 10 years preceding their retirement or are receiving benefits as participants under a multiemployer pension benefit plan that is maintained under the same agreement referred to in paragraph (b)(2)(i), and have at least five years of service or the equivalent under that pension plan. The Committee suggested that participation in the pre-merger multiemployer plans should also be considered in determining whether employees meet the requirements of these categories of the nexus group. The Committee also raised the issue of whether employment in the bargaining unit under the pre-merger plan should be considered for determining whether an individual is a bargaining unit alumnus under 2510.3-40(b)(2)(vii) where the merger was based on a merger of unions. The Committee noted that Example 2 of the proposed regulation addresses how a merger affects the evaluation of the factors in (b)(4)(iii) and (iv) and suggested that another example could be added to the final regulation to address the effect of merging unions and multiemployer plans on the nexus group analysis. After considering the issues raised by the Committee, the Department has determined that it is appropriate to clarify the examples at 2510.3-40(e) to make clear that, in the case of a merger of multiemployer plans, participation in a predecessor plan or employment with a predecessor union may be considered for purposes of determining the nexus group individuals in section 2510.3-40(b)(2)(ii) and (vii). In this regard, a new paragraph (3) was added to Example 2 to clarify that the merger of two unions and the related pension and health and welfare plans will not affect the determinations of who is a “retiree” or a “bargaining unit alumni” for purposes of determining the nexus group under the regulation.
In reviewing the 75% test in paragraph (b)(4)(vi) of 2510.3-40, the Department decided that the regulation should be modified to make clear that in determining the amount of premiums or contributions to which the 75% test applies does not include any amount that a participant or beneficiary might be required to pay as a co-pay or deductible under the provided coverage. Accordingly, the Department has modified paragraph 2510.3-40(b)(4)(iv) to make clear that, in addition to dental or vision care and coverage for excepted benefits under 29 CFR 2590.732(b), amounts payable by participants and beneficiaries as co-payments or deductibles are disregarded for purposes of the 75% test. In so clarifying this provision, however, the Department notes that if an entity were to establish a co-payment or deductible schedule designed solely to satisfy the criteria of paragraph 2510.3-40(b)(4)(vi), without actually requiring substantial employer contributions, evidence of such a design may be considered in evaluating whether for purposes of 2510.3-40(c)(3) there is fraud, forgery, or willful misrepresentation as to the factors relied on to demonstrate that the plan satisfies the criteria set forth in paragraph (b) of this section. The Department further notes that the collective bargaining history appropriately may be examined in a 3(40) proceeding, including a review of those factors in section 2510.3-40(b)(4).
Independent of the Committee's review of the regulations, the Department considered whether the proposed 80% minimum coverage requirement for the “nexus” test is too low. In the August 1, 1995, proposed regulation, the Department proposed that no less than 85% of the individuals covered by a plan must be within the “nexus” group. A number of commenters on that regulation expressed concern that the percentage was too high. In developing a new proposal, the Committee recommended, and the Department proposed, an 80% test. In this regard, the preamble to the proposal indicated that “[t]he Committee recommended a 20% margin for coverage of non-nexus people, even though it understood that the percentage of participants in collectively bargained plans who are not within one of the nexus categories is rarely likely to be that high.” 65 FR 64485 (Oct. 27, 2000). While comments were specifically invited on the 80% test, no comments were received on that provision. Moreover, the Department received no comments suggesting that changing the 80% test to an 85% test would present a problem for affected plans. The Department further notes that H.R. 2563 of the 107th Congress, the “Bipartisan Patients Protection Act,” as passed by the U.S. House of Representatives, among other things, amends ERISA section 3(40)(A)(i) to clarify the standards applicable to determining whether a plan is established or maintained pursuant to collective bargaining agreements.
On the basis of the comments, as well as the discussions of the Committee, the Department does not believe that, in the absence of any data to the contrary, requiring 85% of the covered individuals to be within the “nexus” group, rather than 80%, will have any significant effect on the status of otherwise
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of the Executive Order, it has been determined that this action is “significant” within the meaning of 3(f)(4), and therefore subject to review by the Office of Management and Budget (OMB). Consistent with the Executive Order, the Department has undertaken an assessment of the costs and benefits of this regulatory action. This analysis is detailed below.
Although neither the benefits nor costs have been fully quantified, the Department believes that the benefits of this final regulation more than justify its costs. The final regulation yields positive benefits by reducing uncertainty over which welfare benefit plans are excepted from the definition of a multiple employer welfare arrangement under section 3(40) and are therefore not subject to state regulation. The Department sought comments from the public concerning its analysis of benefits and costs of the proposed regulation. Having received no comments, the Department has relied on its initial analysis in concluding that the benefits of the final regulation justify its costs.
The regulation's elements for distinguishing collectively bargained plans from MEWAs are verifiable through documentation that plans or their agents generally maintain as part of usual business practices. The regulation also incorporates elements of flexibility, allowing entities to demonstrate the existence of a
It is the view of the Department that the uncertainty created by the lack of clear criteria for distinguishing collectively bargained plans from MEWAs has encouraged unscrupulous operators of sham MEWAs in attempts to escape or delay state regulatory efforts by asserting that states lack jurisdiction to regulate such entities because they are excluded from the definition of MEWA by reason of the exception for collectively bargained plans. In order to establish their authority to regulate, states have had to take additional steps, such as initiating administrative or legal proceedings contesting the defendant's status as a collectively bargained plan, and have been the subject of actions initiated by sham MEWA operators, such as suits for federal declaratory judgment or removal actions.
Confusion about whether a plan was established or maintained under or pursuant to an agreement which the Secretary finds to be a collective bargaining agreement has made it difficult for the states to enforce appropriate laws. The criteria regulation will reduce or eliminate this uncertainty. It will provide greater clarity for entities and states and reduce the time and expense attributable to court actions or requests to the Department for guidance.
Plans and arrangements will benefit from greater assurance concerning their actual legal status. States, through an enhanced ability to regulate based on the greater certainty offered by the regulation, will be better able to protect employers, participants, and beneficiaries from unscrupulous MEWA operators. Further, the majority of plans established or maintained under or pursuant to collective bargaining agreements currently operate in a manner that is consistent with the regulation. Most entities will therefore not perceive any need to undertake a systematic reassessment of their status under the regulation. It is possible, however, that some will choose to undertake such an assessment by “comparison testing” the plan's operations against the “safe harbor” criteria established in the final regulation. The Department has estimated below the number of entities likely to undertake a status assessment and the costs likely to be associated with those activities.
The Department was unable to identify any direct measure of the number of entities whose status is uncertain or whose status would remain uncertain under the regulation. Therefore, in order to assess the economic impact of reduced uncertainty under the regulation, the Department examined proxies for the number of entities that might be subject to such uncertainty. After estimating the total number of MEWAs and collectively bargained plans at 2,600, the Department then tallied the number of inquiries to the Department concerning MEWAs and the number of MEWA-related lawsuits to which the Department has been party, taking this to represent a reasonable indicator of the number of entities that have been subject to uncertainty in the past.
Department data indicate that in recent years, the Department has received an average of about nine MEWA-related requests for information each year from state and federal agencies and the private sector. The Department also considered the number of MEWA-related lawsuits that were filed by the Department in recent years. An average of about 45 actions have been brought each year. For purposes of this analysis, it has been assumed that each case involved a different MEWA. Accordingly, the Department has estimated for purposes of this economic analysis that approximately 54 entities (45 + 9) annually may have reason to be uncertain about their legal status with respect to section 3(40) of ERISA, or about two percent of the estimated total number of 2,600 MEWAs and collectively bargained plans.
The Department views this approximate number of 54 entities per year as a conservatively high estimate of the number of entities whose status could be made more certain by issuance of this regulation. On one hand, because some number of entities may confront uncertainty without becoming either the subject of an inquiry addressed to the Department or a lawsuit to which the Department is party, this estimate may represent only a subset of the entities that face uncertainty over their status. On the other hand, this estimate may overstate the number of entities that face uncertainty because it is known that not all requests to the Department or court actions actually raised issues related directly to the collective bargaining exception under section 3(40).
Following a self-assessment of status, some fraction of these 54 entities might nonetheless find themselves in a situation leading them to seek an administrative determination from the Secretary under the procedural regulations, incurring attendant costs, perhaps because a state's jurisdiction or laws are asserted against the entity. The administrative process under the procedural regulations is, in the Department's view, an efficient and less costly process for resolving such disputes than would be available in the absence of the procedural regulations. The Department has elected to attribute the net benefit from these savings not to this regulation, but to the accompanying procedural regulations.
Relevant literature suggests these costs can amount to ten percent of premium.
As noted above, the universe of 2,600 entities that includes those potentially subject to uncertainty covers 8 million participants, or about 3,100 participants per entity on average. Industry surveys put the cost of health coverage at about $4,500 per employee and retiree per year. Applying these figures to 54 entities that might face uncertainty over status—an upper bound on the number likely to be reclassified—produces an
The Department has concluded that actual costs will be far lower than this and will be outweighed by the benefit of the associated protections that will flow from clarifying the state's authority to regulate. As noted above, it is likely that the true number of entities that are reclassified as MEWAs will be a fraction of the estimated 54 that annually might face uncertainty over status. Among those that are reclassified, certain entities likely would already have elected voluntarily to comply with some of the state regulatory requirements and therefore would not incur any cost from the application of state law. For those that would not have complied with relevant state law, operation of the regulation may impose additional costs, such as meeting solvency requirements or providing mandated benefits. The additional costs are offset and justified by increased security for plans and improved coverage for participants. Thus, the added cost from state regulation would be offset by the benefits derived from the protections that state regulations provide. GAO, in 1992, identified $124 million in unpaid claims owed by sham MEWAs. Department enforcement actions involving MEWAs in recent years have identified monetary violations of approximately $121.6 million. With state licensing and solvency requirements in place, at least some incidences of the $124 million in unpaid claims cited in the GAO study or the $121.6 million in violations would most likely not have occurred.
It is also possible that some entities considered to be MEWAs because they are not collectively bargained will be reclassified under the criteria regulation as collectively bargained plans. However, this number seems likely to be very small because entities that can legitimately be treated as collectively bargained have an economic incentive to do so. Any entities that are so classified benefit from the savings of having no obligation to comply with state regulatory requirements. There is no meaningful loss of benefits from the absence of state protections in such cases because the combination of a legitimate collective bargaining agreement and the application of ERISA provides adequate protections.
This Notice of Final Rulemaking is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
For purposes of analysis under the RFA, the Employee Benefits Security Administration (EBSA) continues to consider a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Under section 104(a)(3), the Secretary may also provide for exemptions or simplified annual reporting and disclosure for welfare benefit plans. Pursuant to the authority of section 104(a)(3), the Department has previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41, 2520.104-46, and 2520.104b-10, certain simplified reporting provisions and limited exemptions from reporting and disclosure requirements for small plans, including unfunded or insured welfare benefit plans covering fewer than 100 participants and that satisfy certain other requirements.
Further, while some large employers may have small plans, generally, most small plans are maintained by small employers. Thus, EBSA believes that assessing the impact of this rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration (SBA) (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631
On this basis, however, EBSA has determined that this rule will not have a significant economic impact on a substantial number of small entities. In support of this determination, and in an effort to provide a sound basis for this conclusion, EBSA has prepared the following final regulatory flexibility analysis.
(1)
(2)
(3)
Available data indicate that about 200 or eight percent of the 2,600 entities have fewer than 100 participants. Based on the health coverage reported in the Employee Benefits Supplement to the 1993 Current Population Survey and a 1993 Small Business Administration survey of retirement and other benefit coverages in small firms, the Department estimates that there are more than 2.5 million private group health plans with fewer than 100 participants. Thus, the number of small plans and MEWAs potentially affected is very small in light of this large number of small plans. Even if every one of the 2,600 entities at issue had fewer than 100 participants, the number of entities affected would represent approximately one-tenth of one percent of all small group health plans. Accordingly, the Department has determined that this regulation will not have a significant economic impact on a substantial number of small entities.
Although relatively few small plans and other entities are expected to be affected by this proposal, it is known that the employers typically involved in these entities are often small (that is, they have fewer than 500 employees, which is generally consistent with the definition of small entity found in regulations issued by the Small Business Administration (13 CFR 121.201)). At the time of the proposed regulation, the Department sought comments and data with respect to the number of small employers potentially impacted by the establishment of a standard for determining whether a welfare benefit plan is established or maintained under or pursuant to one or more collective bargaining agreements. No comments or data were received in response to this request; the Department therefore continues to believe that, because these plans and arrangements involve at least two employers, and assuming that each is small, it can be estimated that at least 5,200 small employers may be affected.
It is possible that a small employer participating in what it thinks is a legitimate MEWA may find that it has unknowingly participated in a sham MEWA and will need to change its method of providing welfare benefits to its employees. By enabling states to regulate fraudulent and financially unsound MEWAs, therefore, the regulation may limit the sources of welfare benefits available to some small businesses, requiring them to seek alternative coverage for their employees. The greater benefit for employers, however, is an increased certainty that the MEWAs that remain in business will meet state regulatory standards and will be more certain to provide promised health, life, disability or other welfare benefits to employees. Consequently, employers will receive a net benefit from the reduced incidence of fraud and insolvency among the pool of MEWAs in the marketplace.
(4)
(5)
(6)
Based on the comments received, the Department subsequently turned to negotiated rulemaking, establishing the Committee to assist the Department in developing acceptable criteria. The Committee included representatives from labor unions, multiemployer plans, state governments, employer/management associations, Railway Labor Act plans, third-party administrators, independent agents and brokers of health care products, insurance carriers and the federal government. Because this rule takes into account the Committee's consensus views, and because the Committee represented a full cross-section of the parties affected by the rule, including state, federal, association, and private sector health care organizations, the Department believes that, as an alternative to the 1995 NPRM, this regulation accomplishes the stated objectives of the Secretary and will have a beneficial effect on small employer participation in MEWAs.
The Department has concluded that the implementation of the regulation will be less costly than alternative methods of determining compliance with section 3(40), such as through case-by-case analysis by EBSA of each employee welfare benefit plan or litigation. In addition, if the Department elected not to define specific guidelines for the application of section 3(40), thereby enabling sham MEWAs to continue to evade state regulation, costs for small businesses would rise in terms of loss of coverage and unpaid claims. No other significant alternatives that would minimize economic impact on small entities were identified.
Further, the Department has concluded that it would be inappropriate to create a specific exemption under the regulation for small MEWAs because small MEWAs are just as likely as large MEWAs to be underfunded or otherwise have inadequate reserves to meet the benefit claims submitted for payment.
The rule being issued here is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
When an agency promulgates a regulation that has federalism implications, Executive Order 13132 (64 FR 43255, August 10, 1999), requires the Agency to provide a federalism summary impact statement. Pursuant to section 6(c) of the Order, such a statement must include a description of the extent of the agency's consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of the State have been met.
This regulation has federalism implications because it sets forth standards and procedures for determining whether certain entities may be regulated under certain state laws or whether such state laws are preempted with respect to such entities. The state laws at issue are those that regulate the business of insurance.
From the inception of the Committee through final deliberations on comments received on the proposed regulation, a representative from the National Association of Insurance Commissioners (NAIC), representing the interests of state governments in the regulation of insurance, participated in the rulemaking. NAIC raised the following concerns at Committee meetings: (1) That the rule should allow MEWAs to be easily distinguishable from collectively bargained plans so that MEWAs properly may be subjected to state jurisdiction and regulation; (2) that the rule should prevent the unlicensed sale of health insurance; and (3) that losses to individuals in the form of unreimbursed and denied medical claims should be eliminated.
The Department's position is that there is a substantial need for this regulation. Unscrupulous individuals have been able to exploit the lack of clear guidance regarding the criteria for determining whether an entity is established or maintained pursuant to collective bargaining agreements to create entities that falsely promise benefits they are unable to provide. These operators, free of state solvency and reserve requirements, have marketed unlicensed health insurance to small employers, often offering health insurance at significantly lower rates than state-licensed insurance companies. Ultimately, these operations have often gone bankrupt, leaving individuals with significant unpaid health claims and without health insurance. The lack of clear guidance has hampered states in their efforts to regulate these entities, and appropriate state regulation would reduce or eliminate the risk of losses to employers, employees and their families.
This regulation provides objective criteria for distinguishing collectively bargained plans from arrangements subject to state insurance law. The regulation will facilitate state enforcement efforts against arrangements attempting to misuse the collectively bargained exception in section 3(40) of ERISA. In that regard, the regulation will reduce the incidence of sale of unlicensed insurance under the guise of collectively bargained plans and will limit the losses to individuals in the form of unreimbursed medical and other welfare benefit insurance claims.
The Department notes further, as discussed more fully above, that one commenter expressed concern that the availability of administrative proceedings for an individualized section 3(40) finding in cases where the jurisdiction or law of a state has been asserted may result in delays in state enforcement that could substantially hinder a state's ability to take timely enforcement actions against sham MEWA operators. Recognizing the need to ensure that the regulations assist, rather than hinder, state enforcement efforts against sham MEWA operators, and taking into account the input of the Committee, including the NAIC representative, the Department has amended the regulation to make clear that it is not intended to provide the basis for a stay or delay of any state actions, including administrative or court proceedings and enforcement subpoenas, where immediate state enforcement action is warranted.
Collective bargaining, Employee benefit plans, Pensions.
29 U.S.C. 1002(2), 1002(21), 1002(37), 1002(40), 1031, and 1135; Secretary of Labor's Order 1-2003, 68 FR 5374; Sec. 2510.3-101 also issued under sec. 102 of Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332 and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275, and 29 U.S.C. 1135 note. Sec. 2510.3-102 also issued under sec. 102 of Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332 and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275.
(a)
(b)
(1) The entity is an employee welfare benefit plan within the meaning of section 3(1) of ERISA.
(2) At least 85% of the participants in the plan are:
(i) Individuals employed under one or more agreements meeting the criteria of paragraph (b)(3) of this section, under which contributions are made to the plan, or pursuant to which coverage under the plan is provided;
(ii) Retirees who either participated in the plan at least five of the last 10 years preceding their retirement, or
(A) Are receiving benefits as participants under a multiemployer pension benefit plan that is maintained under the same agreements referred to in paragraph (b)(3) of this section, and
(B) Have at least five years of service or the equivalent under that multiemployer pension benefit plan;
(iii) Participants on extended coverage under the plan pursuant to the requirements of a statute or court or administrative agency decision, including but not limited to the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, sections 601-609, 29 U.S.C. 1169, the Family and Medical Leave Act, 29 U.S.C. 2601
(iv) Participants who were active participants and whose coverage is otherwise extended under the terms of the plan, including but not limited to extension by reason of self-payment, hour bank, long or short-term disability, furlough, or temporary unemployment, provided that the charge to the individual for such extended coverage is no more than the applicable premium under section 604 of the Act;
(v) Participants whose coverage under the plan is maintained pursuant to a reciprocal agreement with one or more other employee welfare benefit plans that are established or maintained under or pursuant to one or more collective bargaining agreements and that are multiemployer plans;
(vi) Individuals employed by:
(A) An employee organization that sponsors, jointly sponsors, or is represented on the association, committee, joint board of trustees, or other similar group of representatives of the parties who sponsor the plan;
(B) The plan or associated trust fund;
(C) Other employee benefit plans or trust funds to which contributions are made pursuant to the same agreement described in paragraph (b)(3) of this section; or
(D) An employer association that is the authorized employer representative that actually engaged in the collective bargaining that led to the agreement that references the plan as described in paragraph (b)(3) of this section;
(vii) Individuals who were employed under an agreement described in paragraph (b)(3) of this section, provided that they are employed by one or more employers that are parties to an agreement described in paragraph (b)(3) and are covered under the plan on terms that are generally no more favorable than those that apply to similarly situated individuals described in paragraph (b)(2)(i) of this section;
(viii) Individuals (other than individuals described in paragraph (b)(2)(i) of this section) who are employed by employers that are bound by the terms of an agreement described in paragraph (b)(3) of this section and that employ personnel covered by such agreement, and who are covered under the plan on terms that are generally no more favorable than those that apply to such covered personnel. For this purpose, such individuals in excess of 10% of the total population of participants in the plan are disregarded;
(ix) Individuals who are, or were for a period of at least three years, employed under one or more agreements between or among one or more “carriers” (including “carriers by air”) and one or more “representatives” of employees for collective bargaining purposes and as defined by the Railway Labor Act, 45 U.S.C. 151
(x) Individuals who are licensed marine pilots operating in United States ports as a state-regulated enterprise and are covered under an employee welfare benefit plan that meets the definition of a qualified merchant marine plan, as defined in section 415(b)(2)(F) of the Internal Revenue Code (26 U.S.C.).
(3) The plan is incorporated or referenced in a written agreement between one or more employers and one or more employee organizations, which agreement, itself or together with other agreements among the same parties:
(i) Is the product of a
(ii) Identifies employers and employee organization(s) that are parties to and bound by the agreement;
(iii) Identifies the personnel, job classifications, and/or work jurisdiction covered by the agreement;
(iv) Provides for terms and conditions of employment in addition to coverage under, or contributions to, the plan; and
(v) Is not unilaterally terminable or automatically terminated solely for non-payment of benefits under, or contributions to, the plan.
(4) For purposes of paragraph (b)(3)(i) of this section, the following factors, among others, are to be considered in determining the existence of a bona fide collective bargaining relationship. In any proceeding initiated under 29 CFR part 2570 subpart H, the existence of a bona fide collective bargaining relationship under paragraph (b)(3)(i) shall be presumed where at least four of the factors set out in paragraphs (b)(4)(i) through (viii) of this section are established. In such a proceeding, the Secretary may also consider whether other objective or subjective indicia of actual collective bargaining and representation are present as set out in paragraph (b)(4)(ix) of this section.
(i) The agreement referred to in paragraph (b)(3) of this section provides for contributions to a labor-management trust fund structured according to section 302(c)(5), (6), (7), (8), or (9) of the Taft-Hartley Act, 29 U.S.C. 186(c)(5), (6), (7), (8) or (9), or to a plan lawfully negotiated under the Railway Labor Act;
(ii) The agreement referred to in paragraph (b)(3) of this section requires contributions by substantially all of the participating employers to a multiemployer pension plan that is structured in accordance with section 401 of the Internal Revenue Code (26 U.S.C.) and is either structured in accordance with section 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. 186(c)(5), or is lawfully negotiated under the Railway Labor Act, and substantially all of the active participants covered by the employee welfare benefit plan are also eligible to become participants in that pension plan;
(iii) The predominant employee organization that is a party to the agreement referred to in paragraph (b)(3) of this section has maintained a series of agreements incorporating or referencing the plan since before January 1, 1983;
(iv) The predominant employee organization that is a party to the agreement referred to in paragraph (b)(3) of this section has been a national or international union, or a federation of
(v) A court, government agency, or other third-party adjudicatory tribunal has determined, in a contested or adversary proceeding, or in a government-supervised election, that the predominant employee organization that is a party to the agreement described in paragraph (b)(3) of this section is the lawfully recognized or designated collective bargaining representative with respect to one or more bargaining units of personnel covered by such agreement;
(vi) Employers who are parties to the agreement described in paragraph (b)(3) of this section pay at least 75% of the premiums or contributions required for the coverage of active participants under the plan or, in the case of a retiree-only plan, the employers pay at least 75% of the premiums or contributions required for the coverage of the retirees. For this purpose, coverage under the plan for dental or vision care, coverage for excepted benefits under 29 CFR 2590.732(b), and amounts paid by participants and beneficiaries as co-payments or deductibles in accordance with the terms of the plan are disregarded;
(vii) The predominant employee organization that is a party to the agreement described in paragraph (b)(3) of this section provides, sponsors, or jointly sponsors a hiring hall(s) and/or a state-certified apprenticeship program(s) that provides services that are available to substantially all active participants covered by the plan;
(viii) The agreement described in paragraph (b)(3) of this section has been determined to be a
(ix) There are other objective or subjective indicia of actual collective bargaining and representation, such as that arm's-length negotiations occurred between the parties to the agreement described in paragraph (b)(3) of this section; that the predominant employee organization that is party to such agreement actively represents employees covered by such agreement with respect to grievances, disputes, or other matters involving employment terms and conditions other than coverage under, or contributions to, the employee welfare benefit plan; that there is a geographic, occupational, trade, organizing, or other rationale for the employers and bargaining units covered by such agreement; that there is a connection between such agreement and the participation, if any, of self-employed individuals in the employee welfare benefit plan established or maintained under or pursuant to such agreement.
(c)
(1) The plan is self-funded or partially self-funded and is marketed to employers or sole proprietors
(i) By one or more insurance producers as defined in paragraph (d) of this section;
(ii) By an individual who is disqualified from, or ineligible for, or has failed to obtain, a license to serve as an insurance producer to the extent that the individual engages in an activity for which such license is required; or
(iii) By individuals (other than individuals described in paragraphs (c)(1)(i) and (ii) of this section) who are paid on a commission-type basis to market the plan.
(iv) For the purposes of this paragraph (c)(1):
(A) “Marketing” does not include administering the plan, consulting with plan sponsors, counseling on benefit design or coverage, or explaining the terms of coverage available under the plan to employees or union members;
(B) “Marketing” does include the marketing of union membership that carries with it plan participation by virtue of such membership, except for membership in unions representing insurance producers themselves;
(2) The agreement under which the plan is established or maintained is a scheme, plan, stratagem, or artifice of evasion, a principal intent of which is to evade compliance with state law and regulations applicable to insurance; or
(3) There is fraud, forgery, or willful misrepresentation as to the factors relied on to demonstrate that the plan satisfies the criteria set forth in paragraph (b) of this section.
(d)
(2)
(3)
(4)
(5)
(e)
Plan A has 500 participants, in the following 4 categories of participants under paragraph (b)(2) of this section:
In determining whether at least 85% of Plan A's participant population is made up of individuals with the required nexus to the collective bargaining agreement as required by paragraph (b)(2) of this section, the Plan may count as part of the nexus group only
(i) International Union MG and its Local Unions have represented people working primarily in a particular industry for over 60 years. Since 1950, most of their collective bargaining agreements have called for those workers to be covered by the National MG Health and Welfare Plan. During that time, the number of union-represented workers in the industry, and the number of active participants in the National MG Health and Welfare Plan, first grew and then declined. New Locals were formed and later were shut down. Despite these fluctuations, the National MG Health and Welfare Plan meets the factors described in paragraphs (b)(4)(iii) and (iv) of this section, as the plan has been in existence pursuant to collective bargaining agreements to which the International Union and its affiliates have been parties since before January 1, 1983.
(ii) Assume the same facts, except that on January 1, 1999, International Union MG merged with International Union RE to form International Union MRGE. MRGE and its Locals now represent the active participants in the National MG Health and Welfare Plan and in the National RE Health and Welfare Plan, which, for 45 years, had been maintained under collective bargaining agreements negotiated by International Union RE and its Locals. Since International Union MRGE is the continuation of, and successor to, the MG and RE unions, the two plans continue to meet the factors in paragraphs (b)(4)(iii) and (iv) of this section. This also would be true if the two plans were merged.
(iii) Assume the same facts as in paragraphs (i) and (ii) of this Example. In addition to maintaining the health and welfare plans described in those paragraphs, International Union MG also maintained the National MG Pension Plan and International Union RE maintained the National RE Pension Plan. When the unions merged and the health and welfare plans were merged, National MG Pension Plan and National RE Pension Plan were merged to form National MRGE Pension Plan. When the unions merged, the employees and retirees covered under the pre-merger plans continued to be covered under the post-merger plans pursuant to the collective bargaining agreements and also were given credit in the post-merger plans for their years of service and coverage in the pre-merger plans. Retirees who originally were covered under the pre-merger plans and continue to be covered under the post-merger plans based on their past service and coverage would be considered to be “retirees” for purposes of 2550.3-40(b)(2)(ii). Likewise, bargaining unit alumni who were covered under the pre-merger plans and continued to be covered under the post-merger plans based on their past service and coverage and their continued employment with employers that are parties to an agreement described in paragraph (b)(3) of this section would be considered to be bargaining unit alumni for purposes of 2550.3-40(b)(2)(vii).
Assume the same facts as in paragraph (ii) of Example 2 with respect to International Union MG. However, in 1997, one of its Locals and the employers with which it negotiates agree to set up a new multiemployer health and welfare plan that only covers the individuals represented by that Local Union. That plan would not meet the factor in paragraph (b)(4)(iii) of this section, as it has not been incorporated or referenced in collective bargaining agreements since before January 1, 1983.
(i) Pursuant to a collective bargaining agreement between various employers and Local 2000, the employers contribute $2 per hour to the Fund for every hour that a covered employee works under the agreement. The covered employees are automatically entitled to health and disability coverage from the Fund for every calendar quarter the employees have 300 hours of additional covered service in the preceding quarter. The employees do not need to make any additional contributions for their own coverage, but must pay $250 per month if they want health coverage for their dependent spouse and children. Because the employer payments cover 100% of the required contributions for the employees' own coverage, the Local 2000 Employers Health and Welfare Fund meets the “75% employer payment” factor under paragraph (b)(4)(vi) of this section.
(ii) Assume, however, that the negotiated employer contribution rate was $1 per hour, and the employees could only obtain health coverage for themselves if they also elected to contribute $1 per hour, paid on a pre-tax basis through salary reduction. The Fund would not meet the 75% employer payment factor, even though the employees' contributions are treated as employer contributions for tax purposes. Under ERISA, and therefore under this section, elective salary reduction contributions are treated as employee contributions. The outcome would be the same if a uniform employee contribution rate applied to all employees, whether they had individual or family coverage, so that the $1 per hour employee contribution qualified an employee for his or her own coverage and, if he or she had dependents, dependent coverage as well.
Arthur is a licensed insurance broker, one of whose clients is Multiemployer Fund M, a partially self-funded plan. Arthur takes bids from insurance companies on behalf of Fund M for the insured portion of its coverage, helps the trustees to evaluate the bids, and places the Fund's health insurance coverage with the carrier that is selected. Arthur also assists the trustees of Fund M in preparing material to explain the plan and its benefits to the participants, as well as in monitoring the insurance company's performance under the contract. At the Trustees' request, Arthur meets with a group of employers with which the union is negotiating for their employees' coverage under Fund M, and he explains the cost structure and benefits that Fund M provides. Arthur is not engaged in marketing within the meaning of paragraph (c)(1) of this section, so the fact that he provides these administrative services and sells insurance to the Fund itself does not affect the plan's status as a plan established or maintained under or pursuant to a collective bargaining agreement. This is the case whether or how he is compensated.
Assume the same facts as Example 5, except that Arthur has a group of clients who are unrelated to the employers bound by the collective bargaining agreement, whose employees would not be “nexus group” members, and whose insurance carrier has withdrawn from the market in their locality. He persuades the client group to retain him to find them other coverage. The client group has no relationship with the labor union that represents the participants in Fund M. However, Arthur offers them coverage under Fund M and persuades the Fund's Trustees to allow the client group to join Fund M in order to broaden Fund M's contribution base. Arthur's activities in obtaining coverage for the unrelated group under Fund M constitutes marketing through an insurance producer; Fund M is a MEWA under paragraph (c)(1) of this section.
Union A represents thousands of construction workers in a three-state geographic region. For many years, Union A has maintained a standard written collective bargaining agreement with several hundred large and small building contractors, covering wages, hours, and other terms and conditions of employment for all work performed in Union A's geographic territory. The terms of those agreements are negotiated every three years between Union A and a multiemployer Association, which signs on behalf of those employers who have delegated their bargaining authority to the Association. Hundreds of other employers—including both local and traveling contractors—have chosen to become bound to the terms of Union A's standard area agreement for various periods of time and in various ways, such as by signing short-form binders or “me too” agreements, executing a single job or project labor agreement, or entering into a subcontracting arrangement with a signatory employer. All of these employ individuals represented by Union A and contribute to Plan A, a self-insured multiemployer health and welfare plan established and maintained under Union A's
Assume the same facts as Example 7. Plan A's benefits consultant recently entered into an arrangement with the Medical Consortium, a newly formed organization of health care providers, which allows the Plan to offer a broader range of health services to Plan A's participants while achieving cost savings to the Plan and to participants. Union A, Plan A, and Plan A's consultant each have added a page to their Web sites publicizing the new arrangement with the Medical Consortium. Concurrently, Medical Consortium's Web site prominently publicizes its recent affiliation with Plan A and the innovative services it makes available to the Plan's participants. Union A has mailed out informational packets to its members describing the benefit enhancements and encouraging election of family coverage. Union A has also begun distributing similar material to workers on hundreds of non-union construction job sites within its geographic territory. In this example, Plan A remains a plan established and maintained under or pursuant to one or more collective bargaining agreements under section 3(40) of ERISA. Neither Plan A's relationship with a new organization of health care providers, nor the use of various media to publicize Plan A's attractive benefits throughout the area served by Union A, alters Plan A's status for purpose of this section.
Assume the same facts as in Example 7. Union A undertakes an area-wide organizing campaign among the employees of all the health care providers who belong to the Medical Consortium. When soliciting individual employees to sign up as union members, Union A distributes Plan A's information materials and promises to bargain for the same coverage. At the same time, when appealing to the employers in the Medical Consortium for voluntary recognition, Union A promises to publicize the Consortium's status as a group of unionized health care service providers. Union A eventually succeeds in obtaining recognition based on its majority status among the employees working for Medical Consortium employers. The Consortium, acting on behalf of its employer members, negotiates a collective bargaining agreement with Union A that provides terms and conditions of employment, including coverage under Plan A. In this example, Plan A still meets the criteria for a regulatory finding that it is collectively bargained under section 3(40) of ERISA. Union A's recruitment and representation of a new occupational category of workers unrelated to the construction trade, its promotion of attractive health benefits to achieve organizing success, and the Plan's resultant growth, do not take Plan A outside the regulatory finding.
Assume the same facts as in Example 7. The Medical Consortium, a newly formed organization, approaches Plan A with a proposal to make money for Plan A and Union A by enrolling a large group of employers, their employees, and self-employed individuals affiliated with the Medical Consortium. The Medical Consortium obtains employers' signatures on a generic document bearing Union A's name, labeled “collective bargaining agreement,” which provides for health coverage under Plan A and compliance with wage and hour statutes, as well as other employment laws. Employees of signatory employers sign enrollment documents for Plan A and are issued membership cards in Union A; their membership dues are regularly checked off along with their monthly payments for health coverage. Self-employed individuals similarly receive union membership cards and make monthly payments, which are divided between Plan A and the Union. Aside from health coverage matters, these new participants have little or no contact with Union A. The new participants enrolled through the Consortium amount to 18% of the population of Plan A during the current Plan Year. In this example, Plan A now fails to meet the criteria in paragraphs (b)(2) and (b)(3) of this section, because more than 15% of its participants are individuals who are not employed under agreements that are the product of a
(f)
(g) Effect of proceeding seeking Administrative Law Judge Section 3(40) Finding.
(1) An Administrative Law Judge finding issued pursuant to the procedures in 29 CFR part 2570, subpart H will constitute a finding whether the entity in that proceeding is an employee welfare benefit plan established or maintained under or pursuant to an agreement that the Secretary finds to be a collective bargaining agreement for purposes of section 3(40) of ERISA.
(2) Nothing in this section or in 29 CFR part 2570, subpart H is intended to provide the basis for a stay or delay of a state administrative or court proceeding or enforcement of a subpoena.
Employee Benefits Security Administration, Department of Labor.
Final rule.
This document contains regulations under the Employee Retirement Income Security Act of 1974, as amended, (ERISA or the Act) describing procedures for administrative hearings to obtain a determination by the Secretary of Labor (Secretary) as to whether a particular employee welfare benefit plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40) of ERISA. An administrative hearing is available
June 9, 2003.
Elizabeth A. Goodman, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5669, Washington, DC 20210, (202) 693-8510. This is not a toll-free number.
These final rules set forth an administrative procedure for obtaining a determination by the Secretary of Labor (the Secretary) as to whether a particular employee benefit plan is established or maintained under or pursuant to one or more agreements that are collective bargaining agreements for purposes of section 3(40) of the Employee Retirement Income Security Act of 1974 (ERISA). These rules (the procedural regulations) are being published simultaneously with a final regulation (the criteria regulation) setting forth specific criteria that, if met and if certain other factors set forth in the final regulation are not present, constitute a finding by the Secretary that a plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40). Both of these final rulemakings take into account the views expressed by the ERISA section 3(40) Negotiated Rulemaking Advisory Committee (the Committee), which was convened by the Department under the Negotiated Rulemaking Act (NRA) and the Federal Advisory Committee Act (the FACA), 5 U.S.C. App. 2. Together, these final regulations will assist states, plan sponsors, and administrators of employee benefit plans, in determining the scope of state regulatory authority over plans or other arrangements as set forth in sections 3(40) and 514(b)(6) of ERISA.
The procedural rules provide for administrative hearings to obtain a determination by the Secretary as to whether a particular plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40) of ERISA. The rules are modeled on the procedures set forth in 29 CFR sections 2570.60 through 2570.71 regarding civil penalties under section 502(c)(2) of ERISA related to reports required to be filed under ERISA section 101(b)(1) and are designed to maintain the maximum degree of uniformity with those rules that is consonant with the need for an expedited procedure accommodating the specific characteristics necessary for proceedings under section 3(40). Accordingly, the rules adopt many, although not all, of the provisions of subpart A of 29 CFR part 18 for the 3(40) proceedings. In this regard, it should be noted that the rules apply only to adjudicatory proceedings before administrative law judges (ALJs) of the United States Department of Labor (the Department). An administrative hearing is available under these rules only to an entity that contends it meets the exception provided in section 3(40)(A)(i) for plans established or maintained under or pursuant to collective bargaining agreements and only if the jurisdiction or law of a state has been asserted against that entity.
These procedural rules were published in the
The Department received only one comment relating to the proposed procedural rules. This comment also concerned the criteria regulation and is discussed in the preamble to that final rule. As described in the preamble to the final criteria regulation, the Department has clarified the language of paragraph (g)(2) of the criteria regulation to emphasize that the ALJ proceedings do not provide a basis for a stay-of-state administrative or judicial proceedings. The language of the procedural regulations remains unchanged.
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of the Executive Order, it has been determined that this action is “significant” within the meaning of 3(f)(4), and therefore subject to review by the Office of Management and Budget (OMB). Consistent with the Executive Order, the Department has undertaken an assessment of the costs and benefits of this regulatory action. The analysis is detailed below.
Pursuant to the requirements of Executive Order 12866, at the time of the Notice of Proposed Rulemaking, the Department sought comments and information from the public on its analysis of the benefits and costs of the proposed regulation. Having received none, the Department believes, based on its original discussion, that the benefits of this final regulation justify its costs. The regulation will benefit plans, states, insurers, and organized labor by reducing the cost of resolving some disputes over a state's right to regulate certain multiple employer welfare benefit arrangements, facilitating the conduct of hearings, reducing disputes over a plan or arrangement's status, and improving the efficiency and ensuring the consistency in determinations of such jurisdiction.
When state law or jurisdiction is asserted over an entity that claims to be excepted from state regulation under the collective bargaining exception, the entity has the option of using these procedures to resolve the dispute. In the absence of the procedure provided under these regulations for determining whether a given plan or arrangement is established or maintained pursuant to a collective bargaining agreement, such disputes have generally been resolved in courts. The Department believes that resolving disputes through the procedures established by these regulations will generally be more efficient and less costly than resolving the disputes in a court of law. Also, determinations made in the single, specialized venue of administrative hearings are likely to be more consistent than determinations made in multiple, non-specialized court venues.
The procedure established by these regulations will complement the criteria established by the criteria regulation. Together, the regulations will assist in accurately identifying MEWAs and collectively bargained plans and ensure that disputes over such classifications are resolved efficiently. For purposes of its assessment of the economic impact of the regulations, the Department has attributed the net benefits of ensuring accurate determinations to the criteria regulation. It has attributed the net benefits of ensuring efficient resolution of disputes to these procedural regulations.
The criteria regulation will reduce existing confusion about whether an entity falls under the collective bargaining agreement exception. However, given the wide variety of agreements, plans and arrangements, as well as the potential for conflicting determinations where a MEWA is conducting business in more than one state, some uncertainties might remain. The Department has therefore established a procedure for obtaining an individualized hearing before a Department of Labor ALJ and for final appeals to the Secretary or the Secretary's delegate to determine an entity's legal status.
Employers and employees will benefit from an administrative decision that provides greater assurance that the entity will comply with applicable federal and state laws designed to protect welfare benefits. In addition, both the petitioner and the state whose authority is being asserted will benefit from the uniform application of criteria by the ALJ, avoiding any confusion that would result from inconsistent decisions. Finally, state insurance departments that receive a timely resolution about an entity's status as a MEWA will be able to swiftly deal with sham MEWAs and then re-direct saved resources to other areas. Because an ALJ decision will be based on the criteria regulation, the Department has attributed the net benefit from the reclassification of currently inaccurately classified plans or arrangements (and the consequent application of appropriate state or federal protections) to that regulation.
An administrative hearing under the final regulations will economically benefit the small number of plans or arrangements that dispute state assertion of law or jurisdiction. The Department foresees improved efficiencies through use of administrative hearings that are at the option of entities over which state jurisdiction has been asserted. An administrative hearing allows the various parties to obtain a decision in a timely, efficient, and less costly manner than is usual in federal or state court proceedings, thus benefiting employers and employees.
The Department's analysis of costs involved in adjudication in a federal or state court versus an administrative hearing assumes that parties seeking to establish regulatory authority incur a baseline cost to resolve the question of status in federal or state court proceeding. This baseline cost includes, but is not limited to, expenditures for document production, attorney fees, filing fees, depositions, etc. Because regulatory authority may be decided in motions or pleadings in cases where that issue is not primary, the direct cost of using only the courts as a decision-maker for such issues is too variable to specify; however, custom and practice indicate that the cost of an administrative hearing is similar to or represents a cost savings compared with the baseline cost of litigating in federal or state court.
Because the procedures and evidentiary rules of an administrative hearing generally track the Federal Rules of Civil Procedure and of Evidence, document production is similar for both an administrative hearing and for a federal or state court proceeding. Documents such as by-laws, administrative agreements, collective bargaining agreements, and other documents and instruments governing the entity are generally kept in the normal course of business, and it is likely that the cost for an administrative hearing will be no more than that which would be incurred in preparation for litigation in a federal or state court. Certain administrative hearing practices and other new procedures initiated by this regulation may, however, represent a cost savings over litigation. For example, neither party need employ an attorney; the prehearing exchange is short and general; either party may move to shorten the time for the scheduling of a proceeding, including the time for conducting discovery; the general formality of the hearing may vary, particularly depending on whether the petitioner is appearing
The Department cannot predict that any or all of these conditions will exist, nor can it predict that any of these factors represent a cost-savings. However, it is likely that the specialized knowledge of ERISA that the ALJ will bring to the process will facilitate a prompt decision, reduce costs, and introduce a consistent standard to what has been a confusion of decisions on regulatory authority. ALJ case histories will educate MEWAs and states by articulating the characteristics of a collectively bargained plan, which clarity will in turn promote compliance with appropriate federal and state regulations. Participants and beneficiaries of arrangements that are newly identified as MEWAs will especially benefit from appropriate state oversight that provides for secure contributions and paid-up claims. In its Notice of Proposed Rulemaking, the Department solicited comments on the comparative cost of a trial in federal or state court versus an administrative hearing on the issue of whether an entity is a plan is established or maintained under or pursuant to an agreement or agreements that the Secretary finds to be collective bargaining agreements for purposes of section 3(40) of ERISA. No comments concerning the comparative costs of a trial versus an administrative hearing were received.
The Regulatory Flexibility Act (5 U.S.C. 601
For purposes of analysis under the RFA, EBSA continues to consider a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Under section 104(a)(3), the Secretary may also provide for exemptions or simplified annual reporting and disclosure for welfare benefit plans. Pursuant to the authority of section 104(a)(3), the Department has previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41, 2520.104-46 and 2520.104b-10 certain simplified reporting provisions and limited exemptions from reporting and disclosure requirements for small plans, including unfunded or insured welfare benefit plans covering fewer than 100 participants and which satisfy certain other requirements.
Further, while some large employers may have small plans, in general most small plans are maintained by small employers. Thus, EBSA believes that assessing the impact of this final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration (SBA) (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631
On this basis, EBSA has determined that this rule does not have a significant economic impact on a substantial number of small entities. In support of this determination, and in an effort to provide a sound basis for this conclusion, EBSA has prepared the following final regulatory flexibility analysis.
(1)
(2)
(3)
Based on Form 5500 filings and Form M-1 filings by MEWAs pursuant to interim final rules published in the
The number of small plans found within the group of 2,600 collectively bargained plans or MEWAs is about 200, or eight percent. The Employee Benefits Supplement to the 1993 Current Population Survey and a 1993 Small Business Administration survey of retirement and other benefit coverages in small firms indicate that there are more than 2.5 million private group health plans with fewer than 100 participants. Thus, the 200 small entities potentially affected represent a very small portion of all small group health plans. Even if all 2,600 potentially affected entities were to have fewer than 100 participants, they would represent approximately one-tenth of one percent of all small group health plans.
The Department is not aware of any source of information indicating the number of instances in which state law or jurisdiction has been asserted over these entities, or the portion of those instances that involved the collective bargaining agreement exception. However, in order to develop an estimate of the number of plans or arrangements that might seek to clarify their legal status by using an administrative hearing as proposed by these regulations, the Department examined the number of lawsuits to which the Department had previously been a party. While this number is not viewed as a measure of the incidence of the assertion of state jurisdiction, it is considered the only reasonable available proxy for an estimate of a maximum number of instances in which the applicability of state requirements might be at issue.
In recent years, the Department has been a party to an average of 45 legal actions annually. The proportion of these lawsuits that involved a dispute over state jurisdiction based on a plan's or an arrangement's legal status is unknown. On the whole, 45 is therefore considered a reasonable estimate of an upper bound number of plans that could have been a party to a lawsuit involving a determination of the plan's legal status. Because this procedural regulation and the related criteria regulation are expected to reduce the number of disputes, the Department assumes that 45 represents a conservatively high estimate of the number of plans or arrangements that would petition for an administrative hearing. Of all small plans and arrangements, then, the greatest number of plans or arrangements likely to petition for an administrative hearing represents a tiny fraction of the total number of small plans.
In addition, the Department has assumed that an entity's exercise of the opportunity to petition for a finding will generally be less costly than available alternatives. Accordingly, the Department has concluded that these regulations will not have a significant economic impact on a substantial number of small entities.
(4)
(5)
(6)
The Department received numerous comments on the NPRM expressing concerns about plans' abilities to meet the standards set forth in the NPRM. Commenters also objected to granting authority to state regulators for determining whether a particular agreement was a collective bargaining agreement. Commenters strongly preferred that determination of whether a plan was established under or pursuant to a collective bargaining agreement lie with a federal agency and not with individual states.
Based on the comments received, the Department turned to negotiated rulemaking as an appropriate method of developing a revised Notice of Proposed Rulemaking. In September 1998, the Secretary established the Committee under the NRA. The Committee membership was chosen from the organizations that submitted comments on the Department's August 1995 NPRM and from the petitions and nominations for membership received in response to a Department Notice of Intent. These regulations are based on the Committee's consensus on the need for an individualized administrative proceeding in limited circumstances for determining the legal status of an entity. Based on the fact that the Committee represented a cross section of the state, federal, association, and private sector insurance organizations concerned with these issues, the Department believes that, as an alternative to the 1995 NPRM, these regulations accomplish the stated objectives of the Secretary and will have a beneficial effect on MEWAs, state insurance regulators, small employers who offer group health coverage, and plan participants. No other significant alternatives that would minimize the economic impact on small entities have been identified.
Participating in an administrative hearing to determine legal status is a voluntary undertaking on the part of a plan or arrangement. It would be inappropriate to create an exemption for small entities under the regulation because small entities are as much in need of clarification of their legal status as are larger entities.
In accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3501
The rule being issued here is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
When an agency promulgates a regulation that has federalism implications, Executive Order 13132 (64 FR 43255, Aug. 10, 1999) requires the Agency to provide a federalism summary impact statement. Pursuant to section 6(c) of the Order, such a statement must include a description of the extent of the agency's consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of the State have been met.
This regulation has Federalism implications because it sets forth standards and procedures for an ALJ hearing for determining whether certain entities may be regulated under certain state laws or whether such state laws are preempted with respect to such entities. The state laws at issue are those that regulate the business of insurance. A member of the National Association of Insurance Commissioners (NAIC), representing the interest of state governments in the regulation of insurance, participated in the negotiations throughout the negotiated rulemaking process that provided the basis for this regulation.
In response to comments from the public about the proposed rule, the NAIC raised a concern that the process by which the Department issues ALJ determinations regarding the collectively bargained status of entities should move forward as quickly as possible and not result in a stay of state enforcement proceedings against MEWAs. The final regulation specifically states that the proceedings shall be conducted as expeditiously as possible and that the parties shall make every effort to avoid delay at each stage of the proceeding. The companion
Administrative practice and procedure, Claims, Employee benefit plans, Government employees, Law enforcement, Penalties, Pensions, Reporting and recordkeeping requirements.
5 U.S.C. 8477, 29 U.S.C. 1002(40), 1021, 1108, 1132, 1135; sec. 102, Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp. p. 332, and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275; Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003).
The rules of practice set forth in this subpart H apply to “section 3(40) Finding Proceedings” (as defined in § 2570.152(g)), under section 3(40) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). Refer to 29 CFR 2510.3-40 for the definition of relevant terms of section 3(40) of ERISA, 29 U.S.C. 1002(40). To the extent that the regulations in this subpart differ from the regulations in subpart A of 29 CFR part 18, the regulations in this subpart apply to matters arising under section 3(40) of ERISA rather than the rules of procedure for administrative hearings published by the Department's Office of Administrative Law Judges in subpart A of 29 CFR part 18. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings.
If there is an attempt to assert state jurisdiction or the application of state law, either by the issuance of a state administrative or court subpoena to, or the initiation of administrative or judicial proceedings against, a plan or other arrangement that alleges it is covered by title I of ERISA, 29 U.S.C. 1003, the plan or other arrangement may petition the Secretary to make a finding under section 3(40)(A)(i) of ERISA that it is a plan established or maintained under or pursuant to an agreement or agreements that the Secretary finds to be collective bargaining agreements for purposes of section 3(40) of ERISA.
For section 3(40) Finding Proceedings, this section shall apply instead of the definitions in 29 CFR 18.2.
(a)
(b)
(c)
(d)
(e)
(1) A state government instrumentality charged with enforcing the law that is alleged to apply or which has been identified as asserting jurisdiction over a plan or other arrangement, including any agency, commission, board, or committee charged with investigating and enforcing state insurance laws, including parties joined under § 2570.153;
(2) The person or entity asserting that state law or state jurisdiction applies to the petitioner;
(3) The Secretary of Labor; and
(4) A state not named in the petition that has intervened under § 2570.153(b).
(f)
(g)
For section 3(40) Finding Proceedings, this section shall apply instead of 29 CFR 18.10.
(a) The term “party” with respect to a Section 3(40) Finding Proceeding means the petitioner and the respondents.
(b) States not named in the petition may participate as parties in a Section 3(40) Finding Proceeding by notifying the OALJ and the other parties in writing prior to the date for filing a response to the petition. After the date for service of responses to the petition, a state not named in the petition may intervene as a party only with the consent of all parties or as otherwise ordered by the ALJ.
(c) The Secretary of Labor shall be named as a “respondent” to all actions.
(d) The failure of any party to comply with any order of the ALJ may, at the discretion of the ALJ, result in the denial of the opportunity to present evidence in the proceeding.
(a) A person seeking a finding under section 3(40) of ERISA must file a written petition by delivering or mailing it to the Chief Docket Clerk, Office of Administrative Law Judges (OALJ), 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or by making a filing by any electronic means permitted under procedures established by the OALJ.
(b) The petition shall—
(1) Provide the name and address of the entity for which the petition is filed;
(2) Provide the names and addresses of the plan administrator and plan sponsor(s) of the plan or other arrangement for which the finding is sought;
(3) Identify the state or states whose law or jurisdiction the petitioner claims has been asserted over the petitioner, and provide the addresses and names of responsible officials;
(4) Include affidavits or other written evidence showing that:
(i) State jurisdiction has been asserted over or legal process commenced against the petitioner pursuant to state law;
(ii) The petitioner is an employee welfare benefit plan as defined at section 3(1) of ERISA (29 U.S.C. 1002(1)) and 29 CFR 2510.3-1 and is covered by title I of ERISA (
(iii) The petitioner is established or maintained for the purpose of offering or providing benefits described in section 3(1) of ERISA (29 U.S.C. 1002(1)) to employees of two or more employers (including one or more self-employed individuals) or their beneficiaries;
(iv) The petitioner satisfies the criteria in 29 CFR 2510.3-40(b); and
(v) Service has been made as provided in § 2570.155.
(5) The affidavits shall set forth such facts as would be admissible in evidence in a proceeding under 29 CFR part 18 and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The affidavit or other written evidence must set forth specific facts showing the factors required under paragraph (b)(4) of this section.
For section 3(40) proceedings, this section shall apply instead of 29 CFR 18.3.
(a)
(b)
(c)
(d)
(2) Illegible documents, whether handwritten, typewritten, photocopies, or otherwise, will not be accepted. Papers may be reproduced by any duplicating process provided all copies are clear and legible.
For section 3(40) Finding Proceedings, this section shall apply instead of 29 CFR 18.42.
(a) At any time after commencement of a proceeding, any party may move to advance the scheduling of a proceeding, including the time for conducting discovery.
(b) Except when such proceedings are directed by the Chief Administrative Law Judge or the administrative law judge assigned, any party filing a motion under this section shall:
(1) Make the motion in writing;
(2) Describe the circumstances justifying advancement;
(3) Describe the irreparable harm that would result if the motion is not granted; and
(4) Incorporate in the motion affidavits to support any representations of fact.
(c) Service of a motion under this section shall be accomplished by personal delivery, or by facsimile, followed by first class, prepaid, U.S. mail. Service is complete upon personal delivery or mailing.
(d) Except when such proceedings are required, or unless otherwise directed by the Chief Administrative Law Judge or the administrative law judge assigned, all parties to the proceeding in which the motion is filed shall have ten (10) days from the date of service of the motion to file an opposition in response to the motion.
(e) Following the timely receipt by the administrative law judge of statements in response to the motion, the administrative law judge may advance pleading schedules, discovery schedules, prehearing conferences, and the hearing, as deemed appropriate; provided, however, that a hearing on the merits shall not be scheduled with less than five (5) working days notice to the parties, unless all parties consent to an earlier hearing.
(f) When an expedited hearing is held, the decision of the administrative law judge shall be issued within twenty (20) days after receipt of the transcript of any oral hearing or within twenty (20) days after the filing of all documentary evidence if no oral hearing is conducted.
For purposes of a final decision under § 2570.158 (Decision of the Administrative Law Judge) or § 2570.159 (Review by the Secretary), the petitioner shall have the burden of proof as to whether it meets 29 CFR 2510.3-40.
For section 3(40) finding proceedings, this section shall apply instead of 29 CFR 18.57.
(a)
(b)
(c)
(a) A request for review by the Secretary of an appealable decision of the administrative law judge may be made by any party. Such a request must be filed within 20 days of the issuance of the final decision or the final decision of the administrative law judge will become the final agency order for purposes of 5 U.S.C. 701
(b) A request for review by the Secretary shall state with specificity the issue(s) in the administrative law judge's final decision upon which review is sought. The request shall be served on all parties to the proceeding.
(c) The review by the Secretary shall not be a de novo proceeding but rather a review of the record established by the administrative law judge.
(d) The Secretary may, in his or her discretion, allow the submission of supplemental briefs by the parties to the proceeding.
(e) The Secretary shall issue a decision as promptly as possible, affirming, modifying, or setting aside, in whole or in part, the decision under review, and shall set forth a brief statement of reasons therefor. Such decision by the Secretary shall be the final agency action within the meaning of 5 U.S.C. 704.
Employee Benefits Security Administration, Department of Labor.
Final rule.
This document contains a final rule governing certain reporting requirements under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) for multiple employer welfare arrangements (MEWAs) and certain other entities that offer or provide coverage for medical care to the employees of two or more employers. The final rule generally requires the administrator of a MEWA, and certain other entities, to file a form with the Secretary of Labor for the purpose of determining whether the requirements of certain recent health care laws are being met.
Amy J. Turner or Deborah S. Hobbs, Employee Benefits Security Administration, U.S. Department of Labor, Room C-5331, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone (202) 693-8335).
The Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191) (HIPAA) amended ERISA to provide for, among other things, improved portability and continuity of health insurance coverage. The Mental Health Parity Act of 1996 (Pub. L. 104-204, as amended by Pub. L. 107-116 and Pub. L. 107-147) (MHPA) amended ERISA to provide parity in the application of annual and lifetime dollar limits for certain mental health benefits with such dollar limits on medical and surgical benefits. The Newborns' and Mothers' Health Protection Act of 1996 (Pub. L. 104-204) (Newborns' Act) amended ERISA to provide new protections for mothers and their newborn children with regard to the length of hospital stays in connection with childbirth. The Women's Health and Cancer Rights Act of 1998 (WHCRA) (Pub. L. 105-277) amended ERISA to provide individuals new rights for reconstructive surgery in connection with a mastectomy. All of the foregoing provisions are set forth in part 7 of subtitle B of title I of ERISA (Part 7).
HIPAA also added a new section 101(g) to ERISA providing the Secretary with the authority to require, by regulation, annual MEWA reporting. Specifically, this section provides that the Secretary of Labor may, by regulation, require multiple employer welfare arrangements providing benefits consisting of medical care (within the meaning of section 733(a)(2)) which are not group health plans to report, not more frequently than annually, in such form and such manner as the Secretary may require for the purpose of determining the extent to which the requirements of Part 7 are being carried out in connection with such benefits.
The term “multiple employer welfare arrangement” is defined in section 3(40) of ERISA to mean, in pertinent part an employee welfare benefit plan, or any other arrangement (other than an employee welfare benefit plan), which is established or maintained for the purpose of offering or providing [welfare plan benefits] to the employees of two or more employers (including one or more self-employed individuals), or to their beneficiaries, except that such term does not include any such plan or other arrangement which is established or maintained under or pursuant to one or more agreements which the Secretary of Labor finds to be collective bargaining agreements, by a rural electric cooperative, or by a rural telephone cooperative association.
For purposes of this definition, two or more trades or businesses, whether or not incorporated, shall be deemed a single employer if such trades or businesses are within the same control group, the term “control group” means a group of trades or businesses under common control, and the determination of whether a trade or business is under “common control” with another trade or business shall be determined under regulations of the Secretary applying principles similar to the principles applied in determining whether employees of two or more trades or businesses are treated as employed by a single employer under section 4001(b), except that, for purposes of this paragraph, common control shall not be based on an interest of less than 25 percent.
An interim final rule implementing the MEWA reporting requirement was published in the
This reporting requirement also responds to a 1992 recommendation of the General Accounting Office (GAO).
In the preamble to the February 2000 interim final regulation, the Department sought comments from those affected. After consideration of all the comments received on the MEWA reporting requirement, the Department is publishing this final rule. The final rule does not significantly modify the reporting requirement established in the interim rule. Instead, several clarifications were added to make clearer the application of the reporting requirement to different types of arrangements. Some of these clarifications were initially issued in the form of question-and-answer guidance during the period of interim effectiveness of this rule and were included in the instructions to the Form M-1 in Years 2000, 2001, and 2002.
(a)
However, because some entities may incorrectly claim the exemption under § 2510.3-40, this final rule retains the requirement that ECEs file a Form M-1 with the Department for three years following an “origination” (the three-year rule). Of course, if an entity does have a determination from an ALJ that it is a collectively-bargained plan, that entity does not have to file while the opinion remains in effect unless the circumstances underlying the determination change.
Moreover, because, some operators of insurance fraud schemes continue to market health coverage to small employers under the guise of collectively bargained plans using, among other things, sham unions and collective bargaining agreements, in an effort to avoid state insurance regulation, the retention of the three-year rule provides an important enforcement tool for the Department and state insurance departments, while imposing little burden on bona fide collectively bargained plans. Finally, bona fide collectively bargained plans and their sponsors also benefit from the early identification of sham MEWA operators.
Under the final rule, as under the interim final rule, the term origination continues to be defined as the occurrence of any of the following three events “ (1) The MEWA or ECE first begins offering or providing coverage for medical care to the employees of two or more employers (including one or more self-employed individuals); (2) The MEWA or ECE begins offering or providing coverage for medical care to the employees of two or more employers (including one or more self-employed individuals) after a merger with another MEWA or ECE (unless all of the MEWAs or ECEs that participate in the merger previously were last originated at least three years prior to the merger); or (3) The number of employees receiving coverage for medical care under the MEWA or ECE is at least 50 percent greater than the number of such employees on the last day of the previous calendar year (unless the increase is due to a merger with another MEWA or ECE under which all MEWAs and ECEs that participate in the merger were last originated at least three years prior to the merger).
(b)
Paragraph (c) of the final rule sets forth the persons required to report under the final rule. As under the interim final rule, the final rule requires filing by the administrator of a MEWA that provides benefits consisting of medical care, whether or not the MEWA is a group health plan. It also requires filing by the administrator of an ECE that offers or provides coverage consisting of medical care during the first three years after the ECE is originated.
The final rule also contains language to clarify the scope of the reporting requirement. The clarifications were initially included in question-and-answer guidance published by the Department in April and June of 2000, and are described in the Instructions to the Form M-1 for the Years 2000, 2001, and 2002.
(a)
(b)
(c)
(1)
Commenters argued that arrangements where businesses maintain significant ownership interests in other businesses and provide benefits under the same health plan are not the kinds of arrangements that historically have been found to lead to problems with fraud and failure to provide promised benefits. The Department agrees and has modified the final rule accordingly.
The final rule clarifies that a filing is not required on behalf of certain plans or other arrangements that provide coverage to the employees of two or more employers that share a common control interest. Specifically, if an entity would not constitute a MEWA or ECE but for the fact that it provides coverage to the employees of two or more trades or businesses that share a common control interest of at least 25 percent at any time during the plan year (applying the principles applied under section 414(b) or (c) of the Internal Revenue Code), a Form M-1 filing is not required. However, while use of a 25 percent test may result in a determination of common control for purposes of the Form M-1 filing requirement, common control generally means, under sections 414 (b) and (c) of the Internal Revenue Code, an 80 percent interest in the case of a parent-subsidiary group of trades or businesses and a more than 50 percent interest in the case of a brother-sister relationship among organizations controlled by five or fewer persons that are the same persons with respect to each organization.
(2)
Commenters explained how change in control transactions may take place over a period of time, and the health plan for a control group may therefore be providing medical benefits to the employees of more than one employer for a temporary period. According to one source cited by a commenter, reasons that a transaction may occur over a period of time include the need to obtain financing, the need to obtain various regulatory approvals, and the need to “iron out the details” of the transaction.
The Department agrees with the comment and has modified the final rule to create an exception for arrangements that would not constitute MEWAs but for their creation in connection with a change in control of businesses (such as a merger or acquisition) and which are temporary in nature (
(3)
(d)
Moreover, as noted earlier, the Form M-1 reporting requirement is an important enforcement tool for the Department and state insurance departments. While, in part, this reporting requirement serves as a vehicle for reviewing compliance with the requirements of part 7 of ERISA, the Form M-1 also serves as the only national registry of MEWAs operating throughout the United States. For this reason, it is important that fully-insured MEWAs continue to file the Form M-1.
One commenter asked what authority the Department has to ask about compliance with part 7 by insured group health plans, presumably because of the fact that section 502(b)(3) of ERISA provides that the Secretary is not authorized to enforce any requirement of part 7 against a health insurance issuer offering health insurance coverage in connection with a group health plan. The Secretary does, however, have authority to enforce the requirements of part 7 against all group health plans, whether insured or self-insured.
Several comments on the MEWA/ECE reporting requirement were also received from representatives of Professional Employer Organizations (PEOs). In general, PEO representatives have argued that, for a variety of reasons, they should be treated as “co-employers” and, accordingly, their group health plans should not be considered MEWAs. While PEOs have sought to distinguish themselves from employee leasing companies on the basis of a “co-employer” relationship with employees, the Department is unable to conclude that the group health plans maintained by PEOs, like the plans maintained by employee leasing companies, do not cover the employees of more than one employer.
The Department recognizes that other arguments were also made on behalf of PEOs to support either a complete or limited exception from the requirement to file a Form M-1. However, this registration regulation allows the Department to collect information to facilitate compliance with the requirements of part 7. As noted earlier, it is also an important enforcement tool for the Department and state insurance departments and serves as the only national registry of MEWAs operating throughout the United States. It also responds to the GAO's recommendation in its 1992 GAO report entitled “States Need Labor's Help Regulating Multiple Employer Welfare Arrangements,” where the GAO detailed a history of fraud and abuse by MEWAs and recommended a federal MEWA registration requirement. GAO/HRD-92-40, March 1992.
An extension may be granted for filing reports if the administrator complies with the extension procedure prescribed in the Instructions to the Form M-1.
One commenter argued that the extension of time to file should be longer than the 60 days provided in the Instructions to the Form M-1 in certain special circumstances. Specifically, the commenter stated that the 60-day period is not adequate for a merger or acquisition context. This comment has been addressed in the final regulation by creating an exception from the filing requirement for a MEWA that is created by a change in control of businesses and is temporary in nature. (This exception to the reporting requirement is discussed above, under the discussion of Persons Required to Report).
Paragraph (g) of the final rule contains a cross-reference for civil penalties and procedures. The penalty and procedure regulations are being published separately in this issue of the
The total cost of the reporting requirement as implemented by this final rule is estimated to be $403,000, or about $200 for each of the 2,000 entities expected to be required to file the annual reporting form for MEWAs, the Form M-1. No additional cost is attributable to the clarifying changes made in this final rule. Although the benefits have not been quantified, EBSA believes that the cost of the filing requirement is more than justified by the benefits associated with ensuring uniform adherence to the requirements and protections added to ERISA by HIPAA, MHPA, the Newborns' Act, and WHCRA. HIPAA amended ERISA to add section 101(g), which authorizes the Secretary of Labor to require reporting by MEWAs that are not group health plans for the purpose of determining their compliance with part 7 of ERISA. The principal intent of Congress in enacting this provision was to ensure that all participants and beneficiaries of such arrangements receive these health care protections.
The reporting requirement implemented by this final rule provides the most cost effective means of facilitating compliance with part 7 of ERISA, as well as with the full range of other Federal and State requirements
Ensuring compliance by these arrangements is beneficial to participants and beneficiaries who are able to fully realize their rights under these statutes. The greater assurance of compliance is also beneficial because compliance by these arrangements with various provisions that apply to them has been shown to be inconsistent. Although the provisions of Title I of ERISA generally supercede State laws that relate to employee benefit plans, the regulation of MEWAs is a joint Federal and State responsibility pursuant to ERISA.
Because State insurance statutes are not uniform, an arrangement doing business in more than one State may be required to comply with a range of States' varying requirements. Identification of these entities through this reporting requirement helps to ensure that administrators of these arrangements are aware of the requirements that apply, and that the protections intended to be provided are actually implemented for the benefit of employers and of participants who obtain their group health coverage through these arrangements.
Ancillary benefits arise from the public disclosure of this data. Participants with greater access to information about the arrangements through which they obtain their group health coverage may better exercise their rights in the event of a dispute with the arrangement. The data collected also enhance capability to conduct analysis of the market segment represented by MEWAs, which is useful to policy makers in evaluating the role of these entities in providing access to employment-based health care benefits.
When the Department developed its initial estimates of the number of filers and the costs potentially associated with these filings, it acknowledged a significant degree of uncertainty with respect to the number of entities that would be required to file. Although reasonable estimates were available from the Form 5500 Annual Return/Report of Employee Benefit Plan data for the potential number of Entities Claiming Exemption and multiple-employer group health plans that file the Form 5500, no information was available that specifically identified the universe of MEWAs that are not group health plans under ERISA.
To develop the estimates used in the analysis of the potential impact of the interim final rule, the Department considered information from several sources. The first of these was the GAO study from 1992,
A third source of information was a RAND Corporation analysis of the 1997 Robert Wood Johnson Foundation Employer Health Insurance Survey as it pertains to pooled purchasing arrangements.
As a result of data limitations and uncertainty within available data, the Department conservatively estimated that about 2,700 entities would file Form M-1. A substantial degree of uncertainty remained about this estimate, and we reported a possible range of 1,000 to 4,000. Actual filer counts have been significantly lower, totaling approximately 600 in each of the three years (
The Department still has no data to support a more accurate estimate of the filer universe than that represented by actual filers. However, it reviewed available information on its active enforcement cases involving MEWAs to determine the degree to which those MEWAs had complied with the M-1 filing requirement. This information showed that about 42% of the MEWAs undergoing investigation that were required to file the M-1 had complied with the requirement. If this rate of non-compliance applies to all MEWAs, about 1,400 MEWAs would be required to file the M-1 annually.
Because the rate of non-compliance may differ from that found in the sample of enforcement cases, and because the Department continues to believe that full compliance has not yet been achieved, it has selected 2,000 as a conservative estimate of the number of potential filers of the M-1. This is approximately the mid-point between the number projected at the time of publication of the interim final rule, and the 1,400 developed from the number of actual filers adjusted for what is known about non-compliance in the available sample of MEWAs.
To develop the current cost estimate of the cost of the filing requirement, the Department looked at the characteristics of the actual filers and applied the relevant factors to the projected number of filers. In its original estimates, the Department differentiated filing preparation time by whether a filer did business in more than one state, and whether or not the filer was fully insured. The existing filer data offers more information about the actual characteristics of filers. For purposes of these estimates, it is assumed that
Original estimates, as well as those shown here, were based on the assumption that 2 hours of start-up time for learning the law and becoming familiar with the form and instructions would be required for all filers, and that a range of 50 minutes for single state filers to 1 hour and 35 minutes for multiple state filers would be required for Part III of the form. Part IV was estimated to require 15 minutes for fully insured filers, and 30 minutes for non-fully insured filers. It was also assumed that 100% of filings would be made by providers of service to the MEWA administrators, and thus result in the payment of fees rather than in the expenditure of time.
Approximately 50% of actual filers report doing business in multiple states, and 50% in single states. Also, about 50% of all filers, without regard to the number doing business in single or multiple states, report being fully insured in most or all of the states in which they do business. Applying these ratios to the estimate of 2,000 filers results in estimates of 1,000 MEWAs doing business in multiple states, 1,000 in single states, 1,000 fully insured MEWAs, and 1,000 not-fully insured. The resulting cost estimate is about $403,000, or $200 per filer on average. This estimate incorporates updated assumptions for wage rates and increased postage rates. Of the projected filers, about 15%, or about 300 filers are expected to have fewer than 100 participants, based upon the number of actual filers with fewer than 100 participants. As noted earlier, this is the total estimated cost of the filing requirement; no incremental cost is considered to be associated with this final rule.
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule (1) having an annual effect of the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This action is significant under section 3(f)(4) because it raises novel legal or policy issues arising from the President's priorities. Accordingly, OMB has reviewed this regulatory action.
The Department of Labor submitted the Form M-1 and instructions to OMB for emergency review and approval at the time of publication of the interim final rule on February 11, 2000. OMB subsequently approved the ICR on March 2, 2000 under control number 1210-0116. On November 22, 2000, OMB approved the Department's request for extension of the emergency approval for a three-year period ending November 30, 2003. This final rule does not implement any substantive or material change to the information collection, and as such, no change is made to the ICR, and no further review is requested of OMB at this time. The estimated burden hours and costs associated with the information collection have been adjusted to reflect an updated estimate of the likely number of respondents as well as updated wage and postal rates. Estimates of the number of filers and burden hours and costs are shown below.
You may address requests for copies of the ICR to Joseph S. Piacentini, Office of Policy and Research, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Room N-5718, Washington, DC 20210. Telephone: (202) 693-8410; Fax: (202) 219-5333. These are not toll-free numbers
The Regulatory Flexibility Act (5 U.S.C. 601
Because these rules were issued as interim final rules and not as a notice of proposed rulemaking, the RFA does not apply and the Department is not required to either certify that the rule will not have a significant economic impact on a substantial number of small entities, or conduct a regulatory flexibility analysis. The Department did, however, take the potential impact on small entities into account in developing the interim final and final rules. The Department defines a small entity for purposes of its RFA analyses as an employee benefit plan with fewer than 100 participants. This definition is grounded in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for certain employee benefit plans which cover fewer than 100 participants. Based on actual filer data, about 15% of filers are expected to be small. This results in an estimate of 300 small MEWAs being required to file Form M-1. The average cost to all filers, including the highest average cost filers—those not-fully insured and those doing business in multiple states—is about $200 per year. The cost to small MEWA filers is expected to be lower than average due to the lower likelihood that they are not fully insured, and that they do business in many states. This cost is not expected to be considered substantial for any entity. The Department has developed a form for the collection of data, and has included voluntary worksheets with the form that are designed to assist with compliance and ease compliance burdens for all filers.
The final rule being issued here is subject to the provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Pursuant to provisions of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), this rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, or the private sector, which may impose an annual burden of $100 million or more.
Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Agencies promulgating regulations that have these federalism implications must consult with state and local officials, and describe in the preamble to the regulation the extent of their consultation and the nature of the concerns of state and local officials, as well as the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of state and local officials have been met.
In the Department's view, these final regulations do not have federalism implications because they do not have substantial direct effects on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government. Not only do these regulations not reduce state discretion, the reports they require will facilitate state enforcement of their own laws as they apply to MEWAs since the reports will be available to the states and will identify MEWAs operating in each state.
Although the Department concludes that these final regulations do not have federalism implications, in keeping with the spirit of the Executive Order that agencies shall closely examine any policies that may have federalism implications or limit the policy making discretion of the states, the Department of Labor engages in extensive efforts to consult with and work cooperatively with affected state and local officials.
For example, the Department attends quarterly meetings of the National Association of Insurance Commissioners (NAIC) to listen to the concerns of state insurance departments. The NAIC is a non-profit corporation established by the insurance commissioners in the 50 states, the District of Columbia, and the four U.S. territories that, among other things, provides a forum for the development of uniform policy when uniformity is appropriate. Its members meet, discuss, and offer solutions to mutual problems. The NAIC sponsors quarterly meetings to provide a forum for the exchange of ideas, and in-depth consideration of insurance issues by regulators, industry representatives, and consumers. In addition to the general discussions, committee meetings, and task force meetings, the NAIC sponsors standing HIPAA meetings for members during the quarterly conferences, including a Centers for Medicare and Medicaid Services (CMS)/Department of Labor (DOL) meeting on HIPAA issues. (This meeting provides CMS and DOL the opportunity to provide updates on regulations, bulletins, enforcement actions, and outreach efforts regarding HIPAA.) In these quarterly meetings, issues relating to MEWAs and the implementation of the Form M-1 filing requirement are frequently discussed and, periodically, entire sessions are scheduled that are dedicated exclusively to MEWA/Form M-1 issues.
The Department also cooperates with the states in several ongoing outreach initiatives, through which information is shared among federal regulators, state regulators, and the regulated community. For example, the Department has established a Health Benefits Education Campaign with more than 70 partners, including CMS, the NAIC, and many business and consumer groups. In addition, the Department website offers links to important state websites and other resources, facilitating coordination between the state and federal regulators and the regulated community.
The Department also coordinates with state insurance departments to freeze assets when a MEWA operator is committing fraud or operating in a financially unsound manner. In these situations, typically, a state will obtain a cease and desist order to stave off further action by the MEWA in that state. In certain situations, the Department will then obtain a temporary restraining order (TRO) to freeze assets of the MEWA nationwide. In one case this year, the Department obtained a TRO to freeze assets of a MEWA whose operators were committing fraud and not paying benefits. This case affects more than 23,000 participants and beneficiaries in 50 states and the amount of unpaid claims could exceed $6 million. In a similar case last year, the Department obtained a TRO to freeze assets of a MEWA that was diverting plan assets for personal use of the MEWA's operators. That case affected at least 1,500 participants and $2.8 million in unpaid claims. A court order was also issued in that case appointing an independent fiduciary to manage the MEWA.
In conclusion, the Department has stayed in contact with state regulators and considered their concerns in developing these regulations. These regulations should help the states enforce their own laws as they apply to MEWAs since the reports they require will be available to them and will identify MEWAs operating in each state.
29 U.S.C. 1021, 1027, 1059, 1132, 1135, 1181-1183, 1181 note, 1185, 1185a-b, 1191, 1191a-c; Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003).
Accounting, Employee benefit plans, Pensions, Reporting and recordkeeping requirements.
29 U.S.C. 1021-1025, 1027, 1029-31, 1059, 1134 and 1135; Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.102-
(a)
(b)
(1) The person specifically so designated by the terms of the instrument under which the MEWA or ECE is operated;
(2) If the MEWA or ECE is a group health plan and the administrator is not so designated, the plan sponsor (as defined in section 3(16)(B) of ERISA); or
(3) In the case of a MEWA or ECE for which an administrator is not designated and a plan sponsor cannot be identified, jointly and severally the person or persons actually responsible (whether or not so designated under the terms of the instrument under which the MEWA or ECE is operated) for the control, disposition, or management of the cash or property received by or contributed to the MEWA or ECE, irrespective of whether such control, disposition, or management is exercised directly by such person or persons or indirectly through an agent, custodian, or trustee designated by such person or persons.
(1) The MEWA or ECE first begins offering or providing coverage for medical care to the employees of two or more employers (including one or more self-employed individuals);
(2) The MEWA or ECE begins offering or providing coverage for medical care to the employees of two or more employers (including one or more self-employed individuals) after a merger with another MEWA or ECE (unless all of the MEWAs or ECEs that participate in the merger previously were last originated at least three years prior to the merger); or
(3) The number of employees receiving coverage for medical care under the MEWA or ECE is at least 50 percent greater than the number of such employees on the last day of the previous calendar year (unless the increase is due to a merger with another MEWA or ECE under which all MEWAs and ECEs that participate in the merger were last originated at least three years prior to the merger).
(c)
(i) The administrator of a MEWA that offers or provides benefits consisting of medical care, regardless of whether the entity is a group health plan; and
(ii) The administrator of an ECE that offers or provides benefits consisting of medical care during the first three years after the ECE is originated.
(2)
(A) Is licensed or authorized to operate as a health insurance issuer in every state in which it offers or provides coverage for medical care to employees;
(B) Provides coverage that consists solely of excepted benefits, which are not subject to Part 7. If the MEWA or ECE provides coverage that consists of both excepted benefits and other benefits for medical care that are not excepted benefits, the administrator of the MEWA or ECE is required to report under this section;
(C) Is a group health plan that is not subject to ERISA, including a governmental plan, church plan, or a plan maintained solely for the purpose of complying with workmen's compensation laws, within the meaning of sections (4)(b)(1), 4(b)(2), or 4(b)(3) of ERISA, respectively; or
(D) Provides coverage only through group health plans that are not covered by ERISA, including governmental plans, church plans, or plans maintained solely for the purpose of complying with workmen's compensation laws within the meaning of sections 4(b)(1), 4(b)(2), or 4(b)(3) of ERISA, respectively (or other arrangements not covered by ERISA, such as health insurance coverage offered to individuals other than in connection with a group health plan, known as individual market coverage);
(ii) Nothing in this paragraph (c) shall be construed to require reporting under this section by the administrator of an entity that would not constitute a MEWA or ECE
(A) The entity provides coverage to the employees of two or more trades or businesses that share a common control interest of at least 25 percent at any time during the plan year, applying the principles of section 414(b) or (c) of the Internal Revenue Code (26 U.S.C.);
(B) The entity provides coverage to the employees of two or more employers due to a change in control of businesses (such as a merger or acquisition) that occurs for a purpose other than avoiding Form M-1 filing and is temporary in nature. For purposes of this paragraph, “temporary” means the MEWA or ECE
(C) The entity provides coverage to persons (excluding spouses and dependents) who are not employees or former employees of the plan sponsor, such as non-employee members of the board of directors or independent contractors, and the number of such persons who are not employees or former employees does not exceed one percent of the total number of employees or former employees covered under the arrangement, determined as of the last day of the year to be reported or, in the case of a 90-day origination report, determined as of the 60th day following the origination date.
(d)
(2) The Secretary may reject any filing under this section if the Secretary determines that the filing is incomplete, in accordance with 29 CFR 2560.502c-5.
(3) If the Secretary rejects a filing under paragraph (d)(2) of this section, and if a revised filing satisfactory to the Secretary is not submitted within 45 days after the notice of rejection, the Secretary may bring a civil action for such relief as may be appropriate (including penalties under section 502(c)(5) of ERISA and 29 CFR 2560.502c-5).
(e)
(2)
(ii)
(B)
(iii)
(f)
(g)
(h)
(i)
(ii)
(i) Facts. ECE
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
Employee Benefits Security Administration, Department of Labor.
Final rule.
This document contains a final rule that describes procedures relating to the assessment of civil penalties under section 502(c)(5) of the Employee Retirement Income Security Act of 1974, (ERISA) as amended by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Section 502(c)(5) authorizes the Secretary of Labor (the Secretary) to assess a civil monetary penalty against any person from the date of the person's failure or refusal to file the information required to be filed under section 101(g) of ERISA. The final rule clarifies the manner in which the Secretary will assess penalties under ERISA section 502(c)(5) and the procedures for agency review. Separate documents containing a final rule on the reporting requirement under section 101(g) of ERISA and a final rule relating to procedures for administrative hearings and appeals on assessments of penalties under ERISA section 502(c)(5) appear separately in this issue of the
This final rule is effective January 1, 2004.
Amy J. Turner or Deborah S. Hobbs, Employee Benefits Security Administration, U.S. Department of Labor, Room C-5331, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone (202) 693-8335).
This document contains a final rule that provides guidance relating to the assessment of civil penalties under section 502(c)(5) of ERISA for the failure or refusal to file a report pursuant to section 101(g) of ERISA. This regulation is designed to parallel the procedures set forth in § 2560.502c—2 regarding civil penalties under section 502(c)(2) of ERISA.
An interim final rule relating to the assessment of civil penalties under section 502(c)(5) of ERISA was published in the
On October 21, 2002, the Department published interim final rules relating to notice of blackout periods to participants and beneficiaries (during which their right to direct or diversify investments, obtain a loan, or obtain a distribution under a pension plan may be suspended) and related civil penalties under ERISA section 502(c)(7). Those rules also made conforming changes to the penalty assessment regulations under this section. Specifically, this section was amended to provide an additional five days in which to file a statement of reasonable cause or a request for hearing and answer, as applicable, when the Department serves a notice of intent to assess a penalty or a notice of penalty determination by certified mail, and to provide that service of a notice by the Department by regular mail is complete upon receipt. In addition, conforming amendments were made to provide that statements of reasonable cause are treated as filed on mailing or on transmittal under certain circumstances. Finally, amendments were made to accommodate those changes in the filing and service rules. No comments were received with respect to these conforming amendments.
This regulation finalizes the interim final regulations published February 20, 2000, as amended by the interim final amendments published October 21, 2002. Only one modification was made, involving applicability dates. Specifically, the interim final rule contained a transition safe harbor period under which no civil penalty was assessed against an administrator that had made a good faith effort to comply with a § 2520.101-2 filing that was due in the Year 2000. This transition rule was created because, during the first year in which a report was required to be filed under section 101(g) in particular, the Department was focused on educating administrators about this filing requirement. Because the dates during which the transition rule was applicable have passed, this rule has been deleted from the final rule.
The Department remains committed to working with administrators to help them comply with the Form M-1 filing requirement. Filers who have questions or who need assistance in completing a filing may call the EBSA Help Desk, at 202-693-8360.
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. On the basis of these criteria, it has been determined that this regulatory action is significant under section 3(f)(4) of the Executive Order. Accordingly, OMB has reviewed this regulation.
The rule being issued here is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Because these rules were issued as interim final rules and not as a notice of proposed rulemaking, the RFA does not apply and the Department is not required to either certify that the rule will not have a significant economic impact on a substantial number of small entities, or conduct a regulatory flexibility analysis. The Department does not anticipate that this final rule will impose a significant impact on a substantial number of small entities, however, regardless of whether one uses the definition of small entity found in regulations issued by the Small Business Administration (13 CFR § 121.201) or one defines small entity, on the basis of section 104(a)(2) of ERISA, as an employee benefit plan with fewer than 100 participants.
The final rule being issued here is subject to the provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, this final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, and will not impose an annual burden of $100 million or more on the private sector.
Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Agencies promulgating regulations that have these federalism implications must consult with state and local officials, and describe in the preamble to the regulation the extent of their consultation and the nature of the concerns of state and local officials, as well as the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of state and local officials have been met.
In the Department's view, these final regulations do not have federalism implications because they do not have substantial direct effects on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government. Not only do these regulations not reduce state discretion, the reports they require will facilitate state enforcement of their own laws as they apply to MEWAs since the reports will be available to the states and will identify MEWAs operating in each state.
Although the Department concludes that these final regulations do not have federalism implications, in keeping with the spirit of the Executive Order that agencies shall closely examine any policies that may have federalism implications or limit the policy making discretion of the states, the Department of Labor engages in extensive efforts to consult with and work cooperatively with affected state and local officials.
For example, the Department attends quarterly meetings of the National Association of Insurance Commissioners (NAIC) to listen to the concerns of state insurance departments. The NAIC is a non-profit corporation established by the insurance commissioners in the 50 states, the District of Columbia, and the four U.S. territories that, among other things, provides a forum for the development of uniform policy when uniformity is appropriate. Its members meet, discuss, and offer solutions to mutual problems. The NAIC sponsors quarterly meetings to provide a forum for the exchange of ideas, and in-depth consideration of insurance issues by regulators, industry representatives, and consumers. In addition to the general discussions, committee meetings, and task force meetings, the NAIC sponsors standing HIPAA meetings for members during the quarterly conferences, including a Centers for Medicare and Medicaid Services (CMS)/Department of Labor (DOL) meeting on HIPAA issues. (This meeting provides CMS and DOL the opportunity to provide updates on regulations, bulletins, enforcement actions, and outreach efforts regarding HIPAA.) In these quarterly meetings, issues relating to MEWAs and the implementation of the Form M-1 filing requirement are frequently discussed and, periodically, entire sessions are scheduled that are dedicated exclusively to MEWA/Form M-1 issues.
The Department also cooperates with the states in several ongoing outreach initiatives, through which information is shared among federal regulators, state regulators, and the regulated community. For example, the Department has established a Health Benefits Education Campaign with more than 70 partners, including CMS, the NAIC, and many business and consumer groups. In addition, the Department Web site offers links to important state Web sites and other resources, facilitating coordination between the state and federal regulators and the regulated community.
The Department also coordinates with state insurance departments to freeze assets when a MEWA operator is committing fraud or operating in a financially unsound manner. In these situations, typically, a state will obtain a cease and desist order to stave off further action by the MEWA in that state. In certain situations, the Department will then obtain a temporary restraining order (TRO) to freeze assets of the MEWA nationwide. In one case this year, the Department obtained a TRO to freeze assets of a MEWA whose operators were committing fraud and not paying benefits. This case affects more than 23,000 participants and beneficiaries in 50 states and the amount of unpaid claims could exceed $6 million. In a similar case last year, the Department obtained a TRO to freeze assets of a MEWA that was diverting plan assets for personal use of the MEWA's operators. That case affected at least 1,500 participants and $2.8 million in unpaid claims. A court order was also issued in that case appointing an independent fiduciary to manage the MEWA.
In conclusion, the Department has stayed in contact with state regulators and considered their concerns in developing these regulations. These regulations should help the states enforce their own laws as they apply to MEWAs since the reports they require will be available to them and will identify MEWAs operating in each state.
29 U.S.C. 1132(c)(5) and 1135 and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003).
Claims, Employee benefit plans, Employee Retirement Income Security Act, Law enforcement, Penalties, Pensions, Reporting and recordkeeping requirements.
29 U.S.C. 1132, 1135, and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2560.503-1 also issued under 29 U.S.C. 1133.
(a)
(2) For purposes of this section, a failure or refusal to file the report required to be filed under section 101(g) shall mean a failure or refusal to file, in whole or in part, that information described in section 101(g) and 29 CFR 2520.101-2, on behalf of the MEWA, at the time and in the manner prescribed therefor.
(b)
(2) If, upon receipt of a notice of intent to assess a penalty (as described in paragraph (c) of this section), the administrator files a statement of reasonable cause for the failure to file, in accordance with paragraph (e) of this section, a penalty shall not be assessed for any day from the date the Department serves the administrator with a copy of such notice until the day after the Department serves notice on the administrator of its determination on reasonable cause and its intention to assess a penalty (as described in paragraph (g) of this section).
(3) For purposes of this paragraph, the date on which the administrator failed or refused to file the report shall be the date on which the report was due (determined without regard to any extension of time for filing). A report which is rejected under 29 CFR 2520.101-2 shall be treated as a failure to file a report when a revised report meeting the requirements of this section is not filed within 45 days of the date of the Department's notice of rejection. If a revised report meeting the requirements of this section, as determined by the Secretary, is not submitted within 45 days of the date of the notice of rejection by the Department, a penalty shall be assessed under section 502(c)(5) beginning on the day after the date of the administrator's failure or refusal to file the report.
(c)
(d)
(e)
(f)
(g)
(2) Except as provided in paragraph (h) of this section, a notice issued pursuant to paragraph (g)(1) of this section, indicating the Department's intention to assess a penalty, shall become a final order, within the meaning of 29 CFR 2570.91(g), forty-five (45) days from the date of service of the notice.
(h)
(i)
(i) By delivering a copy to the administrator or representative thereof;
(ii) By leaving a copy at the principal office, place of business, or residence of the administrator or representative thereof; or
(iii) By mailing a copy to the last known address of the administrator or representative thereof.
(2) If service is accomplished by certified mail, service is complete upon mailing. If service is by regular mail, service is complete upon receipt by the addressee. When service of a notice under paragraph (c) or (g) of this section is by certified mail, five (5) days shall be added to the time allowed by these rules for the filing of a statement, or a request for hearing and answer, as applicable.
(3) For purposes of this section, a statement of reasonable cause shall be considered filed:
(i) Upon mailing, if accomplished using United States Postal Service certified mail or Express Mail;
(ii) Upon receipt by the delivery service, if accomplished using a “designated private delivery service” within the meaning of 26 U.S.C. 7502(f);
(iii) Upon transmittal, if transmitted in a manner specified in the notice of intent to assess a penalty as a method of transmittal to be accorded such special treatment; or
(iv) In the case of any other method of filing, upon receipt by the Department at the address provided in the notice of intent to assess a penalty.
(j)
(2) Any person against whom a civil penalty has been assessed under section 502(c)(5) pursuant to a final order, within the meaning of 29 CFR 2570.91(g), shall be personally liable for the payment of such penalty.
(k)
Employee Benefits Security Administration, Department of Labor.
Final rule.
This document contains a final rule that describes procedures relating to administrative hearings, in connection with the assessment of civil penalties under section 502(c)(5) of the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Section 502(c)(5) of ERISA authorizes the Secretary of Labor (the Secretary) to assess a civil penalty against any person of up to $1,000 a day from the date of the person's failure or refusal to file the information required to be filed by such person with the Secretary under regulations prescribed pursuant to section 101(g) of ERISA. Separate documents are also being published today in the
This final rule is effective January 1, 2004.
Amy J. Turner or Deborah S. Hobbs, Employee Benefits Security Administration, U.S. Department of Labor, Room C-5331, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone (202) 693-8335).
This document contains a final rule that provides guidance relating to the procedures for administrative hearings and appeals regarding the assessment of civil penalties under section 502(c)(5) of ERISA for the failure or refusal to file a completed report pursuant to section 101(g) of ERISA. This regulation is designed to parallel the procedures set forth in § 2570.502c-2 regarding civil penalties under section 502(c)(2) of ERISA.
An interim final rule relating to the procedures for administrative hearings and appeals relating to the assessment of civil penalties under section 502(c)(5) of ERISA was published in the
On October 21, 2002, the Department published interim final rules relating to notice of blackout periods to participants and beneficiaries (during which their right to direct or diversify investments, obtain a loan, or obtain a distribution under a pension plan may be suspended) and related civil penalties under ERISA section 502(c)(7). Those rules also made conforming changes to the procedural regulations under this section. Specifically, § 2570.94, which describes “consequences of default” was modified to provide that, if a respondent fails to file an answer to the notice of determination, the notice of determination shall become a final order of the Secretary 45 days from the date of service of the notice. No comments were received with respect to this conforming amendment.
The interim rule is, therefore, being published as a final rule without change.
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. On the basis of these criteria, it has been determined that this regulatory action is significant under section 3(f)(4) of the Executive Order. Accordingly, OMB has reviewed this regulation.
The rule being issued here is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Because these rules were issued as interim final rules and not as a notice of proposed rulemaking, the RFA does not apply and the Department is not required to either certify that the rule will not have a significant economic impact on a substantial number of small entities, or conduct a regulatory flexibility analysis. The Department does not anticipate that this final rule will impose a significant impact on a substantial number of small entities, however, regardless of whether one uses the definition of small entity found in regulations issued by the Small Business Administration (13 CFR 121.201) or one defines small entity, on the basis of section 104(a)(2) of ERISA, as an employee benefit plan with fewer than 100 participants.
The final rule being issued here is subject to the provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, this final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, and will not impose an annual burden of $100 million or more on the private sector.
Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Agencies promulgating regulations that have these federalism implications must consult with state and local officials, and describe in the preamble to the regulation the extent of their consultation and the nature of the concerns of state and local officials, as well as the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of state and local officials have been met.
In the Department's view, these final regulations do not have federalism implications because they do not have substantial direct effects on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government. Not only do these regulations not reduce state discretion, the reports they require will facilitate state enforcement of their own laws as they apply to MEWAs since the reports will be available to the states and will identify MEWAs operating in each state.
Although the Department concludes that these final regulations do not have federalism implications, in keeping with the spirit of the Executive Order that agencies shall closely examine any policies that may have federalism implications or limit the policy making discretion of the states, the Department of Labor engages in extensive efforts to consult with and work cooperatively with affected state and local officials.
For example, the Department attends quarterly meetings of the National Association of Insurance Commissioners (NAIC) to listen to the concerns of state insurance departments. The NAIC is a non-profit corporation established by the insurance commissioners in the 50 states, the District of Columbia, and the four U.S. territories that, among other things, provides a forum for the development of uniform policy when uniformity is appropriate. Its members meet, discuss, and offer solutions to mutual problems. The NAIC sponsors quarterly meetings to provide a forum for the exchange of ideas, and in-depth consideration of insurance issues by regulators, industry representatives, and consumers. In addition to the general discussions, committee meetings, and task force meetings, the NAIC sponsors standing HIPAA meetings for members during the quarterly conferences, including a Centers for Medicare and Medicaid Services (CMS)/Department of Labor (DOL) meeting on HIPAA issues. (This meeting provides CMS and DOL the opportunity to provide updates on regulations, bulletins, enforcement actions, and outreach efforts regarding HIPAA.) In these quarterly meetings, issues relating to MEWAs and the implementation of the Form M-1 filing requirement are frequently discussed and, periodically, entire sessions are scheduled that are dedicated exclusively to MEWA/Form M-1 issues.
The Department also cooperates with the states in several ongoing outreach initiatives, through which information is shared among federal regulators, state regulators, and the regulated community. For example, the Department has established a Health Benefits Education Campaign with more than 70 partners, including CMS, the NAIC, and many business and consumer groups. In addition, the Department Web site offers links to important state Web sites and other resources, facilitating coordination between the state and federal regulators and the regulated community.
The Department also coordinates with state insurance departments to freeze assets when a MEWA operator is committing fraud or operating in a financially unsound manner. In these situations, typically, a state will obtain a cease and desist order to stave off further action by the MEWA in that state. In certain situations, the Department will then obtain a temporary restraining order (TRO) to freeze assets of the MEWA nationwide. In one case this year, the Department obtained a TRO to freeze assets of a MEWA whose operators were committing fraud and not paying benefits. This case affects more than 23,000 participants and beneficiaries in 50 states and the amount of unpaid claims could exceed $6 million. In a similar case last year, the Department obtained a TRO to freeze assets of a MEWA that was diverting plan assets for personal use of the MEWA's operators. That case affected at least 1,500 participants and $2.8 million in unpaid claims. A court order was also issued in that case appointing an independent fiduciary to manage the MEWA.
In conclusion, the Department has stayed in contact with state regulators and considered their concerns in developing these regulations. These regulations should help the states enforce their own laws as they apply to MEWAs since the reports they require will be available to them and will identify MEWAs operating in each state.
29 U.S.C. 1132(c)(5) and 1135 and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb.3, 2003).
Administrative practice and procedure, Claims, Employee benefit plans, Law enforcement, Penalties, Pensions, Reporting and recordkeeping requirements.
5 U.S.C. 8477, 29 U.S.C. 1002(40), 1021, 1108, 1132, 1135, sec. 102, Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332, and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275; Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb.3, 2003).
(a)
The rules of practice set forth in this subpart are applicable to “502(c)(5) civil penalty proceedings” (as defined in 2570.91(n)) under section 502(c)(5) of the Employee Retirement Income Security Act of 1974. The rules of procedure for administrative hearings published by the Department's Office of Administrative Law Judges in subpart A of 29 CFR part 18 will apply to matters arising under ERISA section 502(c)(5) except as described by this section. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings.
For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of the definitions in § 18.2 of this title.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
For 502(c)(5) penalty proceedings, this section shall apply in lieu of 29 CFR 18.3.
(a)
(b)
(c)
(d)
(2) Illegible documents, whether handwritten, typewritten, photocopies, or otherwise, will not be accepted. Papers may be reproduced by any duplicating process provided all copies are clear and legible.
For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.10.
(a) The term
(b) Other persons or organizations shall be permitted to participate as parties only if the administrative law judge finds that the final decision could directly and adversely affect them or the class they represent, that they may contribute materially to the disposition of the proceedings and their interest is not adequately represented by existing parties, and that in the discretion of the administrative law judge the participation of such persons or organizations would be appropriate.
(c) A person or organization not named as a respondent wishing to participate as a party under this section shall submit a petition to the administrative law judge within fifteen (15) days after the person or organization has knowledge of or should have known about the proceeding. The petition shall be filed with the administrative law judge and served on each person or organization who has been made a party at the time of filing. Such petition shall concisely state:
(1) Petitioner's interest in the proceeding;
(2) How his or her participation as a party will contribute materially to the disposition of the proceeding;
(3) Who will appear for petitioner;
(4) The issues on which petitioner wishes to participate; and
(5) Whether petitioner intends to present witnesses.
(d) Objections to the petition may be filed by a party within fifteen (15) days of the filing of the petition. If objections to the petition are filed, the administrative law judge shall then determine whether petitioners have the requisite interest to be a party in the proceedings, as defined in paragraph (b) of this section, and shall permit or deny participation accordingly. Where petitions to participate as parties are made by individuals or groups with common interests, the administrative law judge may request all such petitioners to designate a single representative, or he or she may recognize one or more of such petitioners. The administrative law judge shall give each such petitioner as
For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.5(a) and (b). Failure of the respondent to file an answer to the notice of determination described in 29 CFR 2560.502c-5(g) within the 30 day period provided by 29 CFR 2560.502c-5(h) shall be deemed to constitute a waiver of his or her right to appear and contest the allegations of the notice of determination, and such failure shall be deemed to be an admission of the facts as alleged in the notice for purposes of any proceeding involving the assessment of a civil penalty under section 502(c)(5) of the Act. Such notice shall then become a final order of the Secretary, within the meaning of § 2570.91(g), forty-five (45) days from the date of the service of the notice.
For 502(c)(5) civil penalty proceedings, the following shall apply in lieu of 29 CFR 18.9.
(a)
(b)
(1) That the order shall have the same force and effect as an order made after full hearing;
(2) That the entire record on which any order may be based shall consist solely of the notice and the agreement;
(3) A waiver of any further procedural steps before the administrative law judge;
(4) A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and
(5) That the order and decision of the administrative law judge shall be final agency action.
(c)
(1) Submit the proposed agreement containing consent findings and an order to the administrative law judge;
(2) Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or
(3) Inform the administrative law judge that agreement cannot be reached.
(d)
(e)
(1) If all of the parties have not consented to the proposed settlement submitted to the administrative law judge, then such non-consenting parties must receive notice, and a copy, of the proposed settlement at the time it is submitted to the administrative law judge;
(2) Any non-consenting party shall have fifteen (15) days to file any objections to the proposed settlement with the administrative law judge and all other parties;
(3) If any party submits an objection to the proposed settlement, the administrative law judge shall decide within thirty (30) days after receipt of such objections whether to sign or reject the proposed settlement. Where the record lacks substantial evidence upon which to base a decision or there is a genuine issue of material fact, then the administrative law judge may establish procedures for the purpose of receiving additional evidence upon which a decision on the contested issues may reasonably be based;
(4) If there are no objections to the proposed settlement, or if the administrative law judge decides to sign the proposed settlement after reviewing any such objections, the administrative law judge shall incorporate the consent agreement into a decision meeting the requirements of paragraph (d) of this section.
For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.14.
(a) A party may file a motion to conduct discovery with the administrative law judge. The motion for discovery shall be granted by the administrative law judge only upon a showing of good cause. In order to establish “good cause” for the purposes of this section, a party must show that the discovery requested relates to a genuine issue as to a material fact that is relevant to the proceeding. The order of the administrative law judge shall expressly limit the scope and terms of discovery to that for which “good cause” has been shown, as provided in this paragraph.
(b) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials or information in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials or information by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.41.
(a)
(1) Where no issue of material fact is found to have been raised, the administrative law judge may issue a decision which, in the absence of an appeal pursuant to §§ 2570.99 through 2570.101, shall become a final order.
(2) A decision made under this paragraph shall include a statement of:
(i) Findings of fact and conclusions of law, and the reasons therefore, on all issues presented; and
(ii) Any terms and conditions of the rule or order.
(3) A copy of any decision under this paragraph shall be served on each party.
(b)
For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.57.
(a)
(b)
(a) The Secretary may review a decision of an administrative law judge. Such a review may occur only when a party files a notice of appeal from a decision of an administrative law judge within twenty (20) days of the issuance of such decision. In all other cases, the decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704.
(b) A notice of appeal to the Secretary shall state with specificity the issue(s) in the decision of the administrative law judge on which the party is seeking review. Such notice of appeal must be served on all parties of record.
(c) Upon receipt of a notice of appeal, the Secretary shall request the Chief Administrative Law Judge to submit to him or her a copy of the entire record before the administrative law judge.
The review of the Secretary shall not be a
(a) Upon receipt of the notice of appeal, the Secretary shall establish a briefing schedule which shall be served on all parties of record. Upon motion of one or more of the parties, the Secretary may, in his or her discretion, permit the submission of reply briefs.
(b) The Secretary shall issue a decision as promptly as possible after receipt of the briefs of the parties. The Secretary may affirm, modify, or set aside, in whole or in part, the decision on appeal and shall issue a statement of reasons and bases for the action(s) taken. Such decision by the Secretary shall be final agency action within the meaning of 5 U.S.C. 704.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action supersedes Special Federal Aviation Regulation (SFAR) 92-4, which was published on March 19, 2002, to allow operators to quickly modify the flightcrew compartment door to delay or deter unauthorized entry to the flightcrew compartment. This action temporarily authorizes variances from existing design standards for the doors and certain operational rules associated with the modifications. It allows for approval for return to service of modified airplanes without prior approved data if the modification constitutes a major alteration. This action prohibits the possession of flightdeck compartment door keys by other than the flightcrew during flight, unless the flightdeck door has an internal flightdeck locking device installed, operative, and in use. This action extends regulatory relief for all-cargo transport category airplanes and a limited number of passenger airplanes beyond April 9, 2003.
This action is effective April 9, 2003 and shall remain in effect until rescinded.
Dave Rich, Certification Procedures Branch, Aircraft Certification Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-7141; e-mail address:
You can get an electronic copy of this document from the Internet by taking the following steps:
(1) Go to the search function of the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) On the search page, type in the last five digits of the docket number shown at the beginning of this document. Click on “search.”
(3) On the next page, which contains the docket summary information, click on the item you want to see.
You can also get an electronic copy using the Internet through the FAA's Web page at
You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Ave., SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number or SFAR number of this rulemaking.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information advice about compliance with statutes and regulations within the FAA's jurisdiction. Therefore, any small entity that has a question regarding this document may contact its local FAA official. Internet users can find additional information on SBREFA on the FAA's Web page at
The September 11, 2001, hijacking events demonstrated that some persons are willing to hijack airplanes and use them as weapons against the citizens of the United States. This safety and security threat was not anticipated and, therefore, not considered in the design of transport airplanes. The hijackings made clear the critical need to improve the security of the flightcrew compartment.
On November 16, 2001, Congress enacted the Aviation and Transportation Security Act, Pub. L. 107-71. Section 104(a)(1)(B) of the Act requires the FAA to issue an order requiring the strengthening of the flightdeck door and locks on certain passenger carrying airplanes.
Flightcrew compartment doors on transport category airplanes have been designed principally to ensure privacy, so pilots could focus their entire attention on their normal and emergency flight duties. The doors have not been designed to provide an impenetrable barrier between the cabin and the flightcrew compartment. Doors have not been required to meet any significant security threat, such as small arms fire or shrapnel, or the exercise of brute force to enter the flightcrew compartment.
Besides affording an uninterrupted work environment for the flightcrew, flightcrew compartment doors often must meet other important safety standards. Should there be a sudden decompression of the airplane, separate compartments within the airplane, like the cabin and the crew compartments, must be designed so that the pressure differential that is created does not compromise the basic airplane structure. Certification standards require that airplane designs provide a method to compensate for decompression in a manner that avoids significant damage to the airplane. In many cases, flightcrew compartment doors provide the pressure compensation by being vented or swinging open to equalize the pressure between the cabin and the flightcrew compartment.
In addition, design standards require that the flightcrew have a path to exit the flightcrew compartment in an emergency, if the cockpit window exits are not usable. Flightcrew compartment doors have been designed to provide this escape path. But this escape feature may also enable easier unauthorized entry into the flightcrew compartment from the cabin.
Operating regulations, in particular § 121.379(b) in the case of a major alteration, require the work to be done in accordance with technical data approved by the Administrator. Operating regulations for airlines also require that each crewmember have a key readily available to open doors between passengers and an emergency exit. Some airlines issue flightcrew compartment door keys to all their crewmembers. This allows flight attendants to enter the flightcrew compartment and assist the flightcrew in an emergency, such as incapacitation of a flight crewmember. But it also offers an opportunity for an individual to overpower or coerce a flight attendant, take away the key, and enter the flightcrew compartment.
This SFAR authorized a temporary period during which non-compliance with design requirements were allowed when improvements to flightcrew compartment security were made. In addition, the FAA waived procedural requirements applicable to major alterations (§ 121.379(b)), the approval of service information and requirements for production of parts for door modifications.
Original SFAR 92 was published on October 9, 2001, and allowed all part 121 passenger carrying operators to install flightcrew compartment door improvements. It allowed airframe manufacturers and modifiers to produce service information without separate FAA approval to assist operators in developing modifications to improve intrusion resistance to the flightcrew compartment. The SFAR included a provision that overrode the requirement for parts production approval in support of door reinforcement activities. Should any of the changes to the door constitute a major alteration, the SFAR relieved the operator of having to obtain prior approval of the data. In addition to the above changes, the FAA also believed it was prudent to eliminate the ability of intruders to gain access by obtaining a flight attendant's key. For that reason, the SFAR temporarily changed the requirement in § 121.313(g) by stating that only flight crewmembers, and not cabin crewmembers, would have flightcrew compartment keys during flight.
SFAR 92-1, published on October 17, 2001, extended the SFAR to cargo airplane operators.
As mentioned above, SFAR 92 temporarily changed section 121.313(g) to prohibit the possession of flightdeck keys by non-flightdeck crewmembers. SFAR 92-2, published on November 21, 2001, modified the prohibition to allow possession of the key under certain limited circumstances.
When SFAR 92 was originally issued, and subsequently revised, the FAA expected that flightdeck modifications would be made as soon as possible. While this was the case for the substantial majority of operators, not all had accomplished the short-term modifications. Therefore, on January 15, 2002, SFAR 92-3 was published to mandate installation of the internal locking devices. This revision also expanded the modification authority to U.S. registered, transport category airplanes that are operated under part 129, foreign operations.
SFAR 92-4 was published on March 19, 2002, to extend the authority to return airplanes to service without previously approved data past the previously established April 22, 2002 date. This revision to the SFAR explicitly stated that operational requirements in sections 121.313(h) and 121.583(b)(1) and (2) are waived if a conflict exists when internal locks are installed and used. The introductory language of paragraph 2 was also revised to address airplanes that are registered in another country, but operated by a part 121 certificate holder.
In parallel with SFAR 92, the FAA issued an immediately adopted rule (IAR) setting new design standards for flightdeck doors in 14 CFR part 25 (Amendment Nos. 25-106 and 121-288, 67 FR 2118, January 10, 2002). These new standards enhance resistance to blunt force and ballistic intrusion. In addition, the IAR requires all airplanes required to have a door under section 121.313(f), as well as all-cargo transport category airplanes that have flightdeck doors installed on or after January 15, 2002, to have a door meeting the new design standards. The stronger doors must be installed not later than April 9, 2003. Doors meeting the new design standards will replace the doors reinforced under this SFAR.
This SFAR is being extended to address two circumstances. One is a response to recent legislation limiting the application and enforcement of requirements for reinforced doors on cargo airplanes. The other is the need for continued relief for a limited number of passenger operators.
Section 355 of the recently adopted Consolidated Appropriations Resolution (Pub. L. 108-7) limited the FAA's ability to apply and enforce the new reinforced door standards for cargo airplanes. As a result, cargo operators will not be subject to the April 9, 2003 deadline for installation of reinforced doors. However, cargo operators have installed internal locking devices under the requirements and authority of this SFAR. We expect that cargo operators who have such devices will want to continue to use them after April 9, 2003, even if they choose not to install a reinforced door. As described above, expiration of the SFAR on April 9, 2003, will limit or eliminate the authority for cargo operators to continue to use these devices. To avoid this decrease in security, the SFAR is extended to continue the authority for these devices on cargo airplanes. The new expiration date of September 30, 2003, was selected to correspond with the expiration date of the Resolution.
Passenger operators have made great strides in meeting the April 9, 2003, deadline for installation of reinforced doors. As a part of the installation process, and to adopt improved security expeditiously, some operators installed doors that meet the strength requirements prior to formal certification approval. These installations are possible because SFAR 92 waived otherwise applicable certification processes.
We expect that all passenger operators will have reinforced doors on their airplanes by April 9, 2003. But some doors may not have formal certification approval by that date. As presently written, SFAR 92-4 will expire on April 9, 2003. If it expires, operators will lose the ability to operate with reinforced doors that lack certification approval. If this were to happen, the operators would be penalized even though doors capable of deterring terrorists are in place.
To avoid this result, the SFAR is being extended to July 31, 2003, provided certain criteria are met. July 31, 2003, is selected because we believe that all projects that will qualify for approval will have approval by that date. To take advantage of this extension,
(1) Passenger operators must have installed reinforced doors before midnight April 9, 2003.
(2) The FAA must have determined before midnight April 9, 2003, that those doors meet the updated intrusion resistance standards of 14 CFR 25.795(a)(1) and (2).
(3) A formal application for certification approval of the door must have been submitted to the FAA before March 10, 2003.
These criteria should assure that operators and door producers have made a good faith effort to meet the reinforced door requirement. Once these criteria have been satisfied, operators can continue to operate until the final certification approval is issued.
Applicants and operators must recognize that compliance with all airworthiness standards is essential. For example, some applicants have been unable to demonstrate compliance with the decompression standards of § 25.365. Based on their progress to date, it is not clear that they will ultimately be able to do so. Unless these designs can be shown to comply with all airworthiness standards by the extended deadline provided by this SFAR, operators will be required to replace these doors with doors that have been shown to comply with all applicable standards. Operators who are aware that their doors are unlikely to be approved must procure doors from other approved sources in sufficient time to comply with § 121.313(j) by July 31, 2003, the extended deadline for this SFAR.
The SFAR is scheduled to expire on April 9, 2003. There is insufficient time to solicit comment on this proposal.
Additionally, with respect to the provisions requiring modifications to strengthen the flightdeck doors and locks, Pub. L. 107-71 authorized the Administrator to issue an order without regard to the provisions of chapter 5 of Title 5 of the United States Code. The modification to section 121.313 contained in this SFAR is within the scope of this authority and is adopted without public notice and a prior opportunity to comment.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA determined that there are no ICAO Standards and Recommended Practices that correspond to this SFAR.
This emergency final SFAR contains information collection activities subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). In accordance with section 3507(j)(1)(B) of that statute, the FAA requested the Office of Management and Budget to grant an immediate emergency clearance on the paperwork package. OMB granted an emergency clearance and assigned OMB control number 2120-0674. As protection provided by the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Following is a description of the information collection burden associated.
This rulemaking action is taken under an emergency situation within the meaning of Section 6(a)(3)(D) of Executive Order 12866, Regulatory Planning and Review. It also is considered an emergency regulation under Paragraph 11(g) of the Department of Transportation (DOT) Regulatory Policies and Procedures. In addition, it is a significant rule within the meaning of the Executive Order and DOT's policies and procedures. No regulatory analysis or evaluation accompanies the final rule; however, both DOT and OMB have reviewed this rulemaking. At this time, the FAA is not able to assess whether this final rule will have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act of 1980, as amended. However, we will be conducting a regulatory evaluation of the cost and benefits of this rulemaking, including any impact on small entities, at a later date.
The FAA has analyzed this SFAR under the principles and criteria of Executive Order 13132, Federalism. We have determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we have determined that this final rule does not have federalism implications.
Also, the Regulatory Flexibility Act does not require the preparation of a regulatory flexibility assessment on a rule not required to be issued as a Notice of Proposed Rulemaking (NPRM) under the Administrative Procedure Act.
The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. L. 104-4 on March 22, 1995, is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” This SFAR does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.
Also, the Regulatory Flexibility Act does not require the preparation of a regulatory flexibility assessment on a rule not required to be issued as a Notice of Proposed Rulemaking (NPRM) under the Administrative Procedure Act.
FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j) this rulemaking action qualifies for a categorical exclusion.
The energy impact of this SFAR has been assessed in accordance with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined that this SFAR is not a major regulatory action under the provisions of the EPCA.
Air carriers, Aircraft, Airmen, Aviation safety, Charter flights, Reporting and recordkeeping requirements, Safety, Transportation.
49 U.S.C. 106(g), 1153, 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 44912, 46105.
1.
2.
(a) An operator may operate airplanes modified to improve the flightcrew compartment door installations to restrict the unauthorized entry of persons into the flightcrew compartment without regard to the applicable airworthiness requirements and may modify those airplanes for that purpose, using technical data not previously approved by the Administrator, subject to the following conditions:
(i) Not later than February 15, 2002, submit to the Director, Aircraft Certification Service, a detailed description of the changes to the airplane that have been accomplished before that date to enhance the intrusion resistance of the flightcrew compartment including identification of what major alterations have been done without previously approved data.
(ii) If, upon reviewing the data submitted in paragraph 2(a)(i) of this SFAR, the Administrator determines that a door modification presents an unacceptable safety risk, the FAA may issue an order requiring changes to such modifications.
(b) An applicant for an airworthiness certificate may obtain such a certificate for modified airplanes to be operated by operators described in this SFAR.
(c) A holder of a production certificate may submit for airworthiness certification or approval, modified airplanes to be operated by operators described in this SFAR.
(d) A person may produce parts for installation on airplanes in connection with modifications described in this SFAR, without FAA parts manufacturer approval (PMA).
3.
4.
5.
6.
7.
a. Before midnight April 9, 2003, the operator must have installed a strengthened flightdeck door meeting the requirement of paragraph 7.b;
b. Before midnight April 9, 2003, the FAA must have found that the door complies with 14 CFR 25.795(a)(1) and (2) in effect on January 15, 2002; and
c. Before March 10, 2003, a formal application for certification approval of the door must have been submitted to the FAA.
Economic Development Administration (EDA), Department of Commerce (DOC).
Notice of Funding Availability (NOFA).
The role of government is to create conditions in which jobs are created, and in which people can find work. The Economic Development Administration (EDA) announces general policies and application procedures for investments that will help our partners across the nation (States, regions and communities) create wealth and minimize poverty by promoting a favorable business environment to attract private capital investment and higher-skill, higher-wage jobs through world-class capacity building, planning, infrastructure, research grants, business assistance, and strategic initiatives. EDA will fulfill this mission by promoting progressive domestic business policies and growth, and by assisting states, local governments, and community-based organizations in achieving their highest economic potential.
Unless otherwise noted below, proposals are accepted on a continuing basis and applications are invited and processed as received. Normally, two months are required for a final decision after the receipt of a completed application invited by EDA that meets all requirements.
Addresses for EDA's six regional offices and Washington, DC, office are provided in part XVI. Addresses for Economic Development Representatives (EDRs) are listed under each regional office.
For national technical assistance, research, and trade adjustment assistance investments, please contact the appropriate program office as shown in parts X, XII, and XIII, respectively. For community and regional economic development investments, contact EDA's regional office or the EDR for your area as shown in part XVI.
Funding appropriated under Pub. L. 108-07 is available for economic development assistance programs authorized by the Public Works and Economic Development Act of 1965, as amended (Pub. L. 89-136, 42 U.S.C. 3121,
EDA receives and processes requests for funding on an ongoing basis, and has begun processing requests under the FY 2003 appropriation. New requests submitted that require approval during this fiscal year will face substantial competition. EDA will focus on outcomes such as value-added employment and private sector investment.
The authority for programs listed below in parts VIII through XII is the Public Works and Economic Development Act of 1965, as amended (Pub. L. 89-136, 42 U.S.C. 3121,
Eligible recipients of EDA financial assistance are defined at 13 CFR 300.2 and eligible applicants are specified at 13 CFR 301.1. An “area” is an eligible recipient and is defined at 13 CFR 301.2. One category of the areas eligible for financial assistance are those areas meeting the “special needs” criteria. The special needs criteria are published each year by this notice and are provided at part XV.
Preapplication proposals must be submitted on EDA's Preapplication for Federal Assistance, Form ED-900P. This form contains both questions and a narrative statement. The narrative statement need not exceed four pages. The narrative statement must address the following topics in the order listed:
1. Project Area.
2. Project Description.
3. Proponent's Capability.
4. Problem.
5. Project Impact.
6. Project Beneficiaries.
7. Civil Rights Issues.
8. Funding.
9. Identity of Sources of Non-EDA Funding.
10. Title/Ownership/Operation and Maintenance (Construction Projects).
11. Environmental Issues.
Proposals for Public Works and Economic Development Facilities assistance and Economic Adjustment assistance must also include Form ED-900P, Exhibit A, Area Eligibility for Grants under 13 CFR parts 305 (Public Works) and 308 (Economic Adjustment) and the necessary documentation and narrative statement.
Proposals for University Center funding must also include the additional information set forth in part X.
Proposals for projects on which EDA is requested to fund more than 50 percent of project costs may be required to include Form ED-900P, Exhibit B, EDA Grant Rate Determination, and the necessary documentation and narrative statement.
An original and two copies must be submitted to the appropriate Economic Development Representative or regional office.
Unless otherwise provided herein, eligibility, program objectives, application procedures, selection process, evaluation criteria, and other requirements for all programs are set forth in EDA regulations at 13 CFR chapter III, and applicants must address those requirements. The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the
For Public Works (13 CFR part 305) and Economic Adjustment Investments (13 CFR part 308) (CFDA No. 11.300 and 11.307 respectively), EDA reviews area eligibility at the time an application is invited and again at the time an application is received. This review is based on the most recent Federal data available for the area where the project will be located or where the substantial direct benefits will be received. If no Federal data is available to determine eligibility, an applicant must submit to EDA the most recent data available for the area through the government of the State in which the area is located,
EDA encourages only those investment proposals that will significantly benefit areas experiencing or threatened with substantial economic distress. Distress may exist in a variety of forms, including, but not limited to: high levels of unemployment, low income levels, large concentrations of low-income families, significant declines in per capita income, substantial loss of population because of the lack of employment opportunities, large numbers (or high rates) of business failures, sudden major layoffs or plant closures, military base closures, natural or other major disasters, depletion of natural resources, or reduced tax bases.
Communities affected by the 1988, 1991, 1993, or 1995 Base Realignment and Closure (BRAC) actions, and which qualify for either regular Public Works or regular Economic Adjustment funding, may apply for investments under one or both of those programs. EDA anticipates that construction proposals will seek funding from the regular Public Works program while credit enhancement or other innovative financing proposals will compete under the regular Economic Adjustment authority.
Potential applicants are responsible for demonstrating to EDA, by providing statistics and other appropriate information, the nature and level of the distress their project efforts are intended to alleviate. EDA provides funding for eligible investment activities through direct grants and cooperative agreements. In funding cooperative agreements, a common example of substantial involvement is collaboration between EDA program staff and the recipient of a conference planning award to select a conference site, develop the agenda, and choose presenters, or to review a research project's methodology at critical stages and the draft written report.
EDA is not authorized to provide grants directly to individuals or to other for-profit entities seeking to start or expand a business. Such requests may be referred to state or local agencies, or to non-profit economic development organizations serving the project area.
To apply for an award under this notice, an eligible recipient must submit a pre-application proposal to the appropriate Economic Development Representative for the area or regional office. Each pre-application proposal is circulated by a project officer to the appropriate regional office staff for review, comments, and recommendations. When the necessary input and information are obtained, the pre-application proposal is considered by the regional office Investment Review Committee (IRC) made up of regional office staff. The IRC discusses the proposal and all pertinent documentation and evaluates it using the general evaluation criteria set forth at 13 CFR 304.1 and 304.2 as further defined by the Supplemental Evaluation Criteria set forth in this notice below, and the program specific criteria provided under 13 CFR 305.2 for Public Works, 13 CFR 306.2 for Planning Assistance, 13 CFR 307.2 for Technical Assistance, 13 CFR 307.6 for University Centers, 13 CFR 307.10 for National Technical Assistance, Training, Research, and Evaluation, and 13 CFR 308.2 and 308.4 for Economic Adjustment. University Center funding proposals will be evaluated using the Special Evaluation Criteria set forth in part X in lieu of the Supplemental Evaluation Criteria set forth below. In addition, each proposal is evaluated for consistency with the Funding Priorities set forth below. After completing its evaluation, the IRC recommends whether or not an application should be invited, documenting its recommendation in the meeting minutes or in the Investment Proposal Summary and Evaluation Form. The IRC action is reviewed at headquarters for quality assurance. After receiving quality control clearance, the Selecting Official (depending on the program, either the Regional Director or the Assistant Secretary) selects the applications to be invited. In the case of a continuation grant, no pre-application proposal is required. Proposals received after the date of this notice will be processed in accordance with the requirements set forth herein until the next annual NOFA is published.
EDA will invest in applicants who are entrepreneurial in spirit and in action. Potential investments will be analyzed using the following seven supplemental evaluation criteria of approximate equal weight, which further define the criteria provided at 13 CFR 304.2:
1. Extent that proposed investments are market-based.
2. Extent that proposed investments are pro-active in nature and scope.
3. Extent that proposed investments look beyond the immediate economic horizon, anticipate economic changes, and diversify the local and regional economy.
4. Likelihood that proposed investments maximize the attraction of private sector investment and would not otherwise come to fruition absent EDA's investment.
5. Likelihood that proposed investments have a high probability of success.
6. Likelihood that proposed investments result in an environment where higher-skill, higher-wage jobs are created.
7. Likelihood that proposed investments maximize Return on Taxpayer Investment.
The Selecting Official considers the evaluations provided by the IRC and the degree to which one or more of the following funding priorities are included (or packaged together) in making his/her decisions as to which preapplication proposals should be invited. Highly rated preapplication proposals may or may not be invited to submit full applications based on the following funding priorities. Generally, all proposals should enhance regional competitiveness and support long-term development of the regional economy. Further priority will be given to proposals that:
1. Encourage innovation and regional competitiveness:
a. Reflect coordination of strong regional leadership committed to regional cluster development;
b. Encourage a formal organization structure and process for working on cluster development and maintaining consensus;
c. Encourage a common vision and collaboration among firms, universities, and training centers to implement a cluster strategy;
d. Establish research and industrial parks that encourage innovation-based competition;
e. Implement cluster-focused and innovation-focused business development efforts; and
f. Develop or implement coordinated economic and workforce development strategies.
2. Upgrade core business infrastructure such as:
a. Transportation infrastructure;
b. Communications infrastructure; and
c. Specialized training program infrastructure.
3. Help communities plan and implement economic adjustment strategies in response to sudden and severe economic dislocations (
4. Support technology-led economic development, for example, proposals that:
a. Reflect the important role of research and development capacity of universities in regional development; and
b. Create and support technology transfers.
5. Advance community and faith-based social entrepreneurship in redevelopment strategies for areas of chronic economic distress.
If the Selecting Official declines to invite a full application, he/she provides written notice to the applicant. If an application has been invited by the Selecting Official, it is reviewed by EDA program officials to determine whether it contains any deficiencies under EDA regulations at 13 CFR chapter III and the requirements of this notice. If deficiencies are noted, the applicant is provided a written request to amend the application to resolve any deficiencies. If deficiencies are not resolved 30 days after receipt of the written notice, the application may be rejected. If the full application is accepted, the recipient and EDR are notified and it is forwarded for final reviews and processing in accordance with EDA and DOC procedures.
Funds in the amount of $203,667,500 have been appropriated for this program. The average funding level for an investment in FY 2002 was $1,240,000. This amount is not intended to restrict the size of future awards.
EDA will provide Public Works investments to support the construction or rehabilitation of essential public infrastructure and development facilities necessary to generate private sector jobs and investment, including investments that support technology-led development, redevelopment of brownfield sites, and eco-industrial development.
Funds in the amount of $23,844,000 have been appropriated for the Planning Program. In FY 2002, the average Economic Development District planning investment was $59,000; the average Indian planning investment was $46,000; and the average state and other planning organization investment was $64,000. These amounts are not intended to restrict the size of future awards. EDA expects the majority of planning funds will be used for support to existing Economic Development District and Indian tribe grantees. Continuation grants are not competed. Any new planning grants shall be solicited and evaluated in compliance with this notice.
Funds in the amount of $9,040,850 have been appropriated for the Technical Assistance programs of which approximately $1,490,250 is available for the Local Technical Assistance program; $1,093,843 for the National Technical Assistance program; and $6,456,757 for the University Center program. The average funding level in FY 2002 for Local Technical Assistance investments was $53,000; for National Technical Assistance investments, $134,000; and for University Center investments, the typical range was $75,000 to $110,000. These amounts are not intended to restrict the size of future awards.
Multi-year funding may be available for this program. Funding for each year's activities is contingent upon continued satisfactory performance during the preceding period, the availability of program funds, and will be at EDA's sole discretion.
A separate
EDA's University Center program helps to make the wealth of resources—faculty, staff, students, computer facilities, laboratories, etc.—at institutions of higher education available for assisting in local and regional economic development activities. This announcement provides notice of several program and policy changes. EDA intends to make additional changes in subsequent years.
EDA will provide assistance under this program only to University Centers engaged in economic development. Activities such as community development or social service type activities are not consistent with EDA's mission and will not be considered for funding. Programs focused on activities other than economic development are encouraged to seek other sources of financial support. In addition, beginning in FY 2003, EDA will not fund any University Center that operates in isolation from other resources at its sponsoring institution and lacks the support of its sponsoring institution's leadership.
Funds to establish new University Centers will be available only if an existing University Center withdraws or is dropped from the program.
In addition to the information described in part IV, proposals in or after FY 2003 for University Center funding must include the additional information described in this section.
The Scope of Work for University Center proposals must be structured to address the University Center's contribution to the following elements: (a) Providing technical assistance, (b) conducting applied research, and (c) disseminating results of the activities of the University Center. Applicants are expected to submit a Scope of Work commensurate with the funding requested and consistent with EDA's mission.
University Center funding proposals will be analyzed using the Evaluation Criteria set forth below. The “Supplemental Evaluation Criteria” set forth in part VI will not apply to University Center applications. EDA will invest in University Centers that are focused on economic development and are proactive and innovative in spirit and in action. Potential University Center proposals will be analyzed using the following six special evaluation
1. Extent that the proposed University Center investment addresses the economic development needs, issues and opportunities of the proposed service area.
2. Extent that the service and value of the proposed University Center investment is unique, or fills a void not offered by other organizations in the proposed service area that provide potentially complementary or duplicate services.
3. Extent that the proposed University Center investment will maximize coordination with those other entities in “2” and will minimize the duplication of the services provided by those entities.
4. Likelihood that the proposed University Center investment will benefit economically distressed areas as defined in part III.
5. Extent that the proposed University Center investment will access, take advantage of, and be supported by the other resources of the sponsoring institutions.
6. Degree of evidence demonstrating the support and commitment (both financial and nonfinancial) of the proposed University Center investment from the leadership of the sponsoring institution for the University Center and its activities.
Funds to establish new University Centers will be available only if an existing University Center withdraws or is dropped from the program.
Funds in the amount of $40,634,150 have been appropriated for funding under the Economic Adjustment Assistance program. Of this amount, $16,900,000 is available for economic adjustment projects located in regions impacted by coal industry downsizing, timber industry issues and Alaska fishing-dependent communities. The average funding level for an Economic Adjustment investment in FY 2002 was $508,600. This amount is not intended to restrict the size of future awards.
Funds in the amount of $496,750 have been appropriated for this program. The average funding level for an investment in FY 2002 was $105,000. This amount is not intended to restrict the size of future awards.
Multi-year funding may be available for this program. Funding for each year's activities is contingent upon continued satisfactory performance during the preceding period, the availability of program funds, and will be at EDA's sole discretion.
A separate
Funds in the amount of $10,431,750 have been appropriated for this program. EDA expects these funds will be used to support the existing network of Trade Adjustment Assistance Centers (TAACs). The average funding level for a TAAC in FY 2002 was $875,000. This amount is not intended to restrict the size of future awards. Continuation grants will not be competed. No new TAACs are expected this fiscal year. For further information on this program contact: Anthony J. Meyer, Coordinator, Trade Adjustment and Technical Assistance, Planning and Development Assistance Division, Economic Development Administration, Room 7317, U.S. Department of Commerce, Washington, DC 20230, Telephone: (202) 482-2127.
EDA regulations at 13 CFR chapter III are available on the EDA Web site
A. Projects are expected to be completed in a timely manner consistent with the nature of the project. For Public Works and most Economic Adjustment implementation investments, the maximum period for which assistance will be made available is generally not more than five years from the date of award.
B. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. This notice involves a collection of information requirement subject to the provisions of the PRA and has been approved by OMB under Control Number 0610-0094. The EDA preapplication (ED-900P) and application (ED-900A), which incorporates the SF-424, are the forms in the EDA application kit, approved under the aforementioned OMB control number.
C. The implementing regulations of the National Environmental Policy Act (NEPA) require EDA to provide public notice of the availability of project specific environmental documents such as environmental impact statements, environmental assessments, findings of no significant impact, records of decision etc., to the affected public as specified in 40 CFR 1506.6(b).
Depending on the project location, environmental information concerning specific projects can be obtained from the Regional Environmental Officer (REO) in the appropriate EDA regional office listed in part XVI.
D. If an application is selected for funding, EDA has no obligation to provide any additional future funding in connection with an award. Renewal of an award to increase funding or extend the period of performance is at the sole discretion of EDA.
E. EDA will notify unsuccessful applicants in writing and unsuccessful applications will be maintained in the
F. EDA is committed to a policy of non-discrimination in the administration of all its programs.
G. EDA applications proposed for funding are subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as referenced in EDA's regulations at 13 CFR chapter III.
H. This notice has been determined to be “not significant” for purposes of Executive Order 12866.
I. It has been determined that this notice does not contain policies with federalism implications as that term is defined in Executive Order 13132.
J. Because notice and comment are not required under 5 U.S.C. 553, or any other law, for this notice relating to public property, loans, grants benefits or contracts (5 U.S.C. 553(a)), a Regulatory Flexibility Analysis is not required and has not been prepared for this notice, 5 U.S.C. 601
These criteria are published in accordance with 13 CFR 301.2(h) and define what constitutes a special need sufficient to make an area eligible for Public Works and Economic Development Facilities assistance and Economic Adjustment assistance as described in part III above. An area is eligible pursuant to “Special Need” (13 CFR 301.2(b)(3)), if the area meets one of the criteria described below:
A. Closure or restructuring of industrial firms essential to area economies. An area has experienced either: (1) An actual closure or restructuring of a firm(s), within the past twelve months, resulting in sudden job losses and meeting the following dislocation criteria; or (2) a threat that results from a public announcement of an impending closure or restructuring of a firm(s), expected to occur within two years of preapplication, and result in sudden job losses meeting the following dislocation criteria:
1. For areas over 100,000 population, the actual or threatened dislocation is 500 jobs, or 1 percent of the civilian labor force (CLF), whichever is less.
2. For areas up to 100,000 population, the actual or threatened dislocation is 200 jobs, or 1 percent of the CLF, whichever is less.
B. Substantial out-migration or population loss. Applicants seeking eligibility under this criterion will be asked to present appropriate and compelling economic or demographic data to demonstrate the special need.
C. Underemployment, that is, employment of workers at less than full time or at less skilled tasks than their training or abilities permit. Applicants seeking eligibility under this criterion will be asked to present appropriate and compelling economic and demographic data to demonstrate the special need.
D. Military base closures or realignments, defense contractor reductions-in-force, or Department of Energy defense-related funding reductions.
1. A military base closure refers to a military base that was closed or is scheduled for closure or realignment pursuant to a Base Realignment and Closure Act (BRAC) process or other Department of Defense (DoD) process. Unless further extended by the Assistant Secretary for Economic Development, the area is eligible from the date of Defense Department recommendation for closure until five years after the actual date of closing of the installation.
2. A defense contractor reduction-in-force refers to a defense contractor(s) experiencing defense contract cancellations or reductions resulting from official DoD announcements and having aggregate value of at least $10 million per year. Actual dislocations must have occurred within one year of application to EDA and threatened dislocations must be anticipated to occur within two years of application to EDA. Defense contracts that expire in the normal course of business will not be considered in meeting this criterion.
3. A Department of Energy defense-related funding reduction refers to a Department of Energy facility that has experienced or will experience a reduction of employment resulting from its defense mission change. The area is eligible from the date of the Department of Energy announcement of reductions until five years after the actual date of reduced operations at the installation.
E. Natural or other major disasters or emergencies, including terrorists attacks. Unless further extended by the Assistant Secretary, an area that has received one of the following disaster declarations is eligible to apply for EDA assistance for a period of 18 months after the date of declaration.
1. A Presidential Disaster Declaration pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Pub. L. 93-288), 42 U.S.C. 5121
2. A Federally-Declared Disaster pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, (Pub. L. 94-265) as amended by the Sustainable Fisheries Act (Pub. L. 104-297), or
3. A Federal Declaration pursuant to the Consolidated Farm and Rural Development Act, as amended (Pub. L. 92-419, 96-438, 97-35, 98-258, 99-198, 100-233, 100-387, and 101-624), or
4. A Federally-Declared Disaster pursuant to the Small Business Act, as amended (Pub. L. 85-536).
F. Extraordinary depletion of natural resources. EDA presently recognizes the following conditions of extraordinary natural resource depletion:
1. Fisheries.
2. Coal.
3. Timber.
Modifications to the above listing of conditions of extraordinary natural resource depletion, as they may occur, will be announced in subsequent public notices.
G. Communities undergoing transition of their economic base as a result of changing trade patterns. An area certified as eligible by the North American Development Bank (NADBank) Program or the Community Adjustment and Investment Program (CAIP).
H. Other special need. The area is experiencing other special and/or extraordinary economic adjustment needs as determined by the Assistant Secretary.
The applicant will be asked to present appropriate economic or demographic statistics to demonstrate a special need.
EDA regional offices and the Economic Development Representatives and the areas served are listed below:
For general information on EDA contact the appropriate Regional Office listed above or EDA's Office of Congressional Liaison, Program Research and Evaluation: Economic Development Administration, Room 7814A, U.S. Department of Commerce, Washington, DC 20230, Telephone: (202) 482-2309, EDA Web site