Agricultural Marketing Service
Forest Service
Natural Resources Conservation Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Management and Budget Office
Centers for Disease Control and Prevention
Food and Drug Administration
Fish and Wildlife Service
Land Management Bureau
Minerals Management Service
Surface Mining Reclamation and Enforcement Office
Drug Enforcement Administration
Employment and Training Administration
Occupational Safety and Health Administration
Federal Mine Safety and Health Review Commission
Management and Budget Office
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Research and Special Programs 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.
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Agricultural Marketing Service, USDA.
Final rule.
This rule increases the assessment rate established for the Area No. 2 Colorado Potato Administrative Committee (Committee) for the 2003-2004 and subsequent fiscal periods from $0.0035 to $0.0051 per hundredweight of potatoes handled. The Committee locally administers the marketing order which regulates the handling of potatoes grown in Colorado. Authorization to assess potato handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period began September 1 and ends August 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
September 11, 2003.
Teresa Hutchinson, Marketing Specialist, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, Portland, Oregon 97204; telephone: (503) 326-2724, Fax: (503) 326-7440; 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 No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of potatoes grown in Colorado, 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. Under the marketing order now in effect, Colorado potato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate established herein would be applicable to all assessable potatoes beginning on September 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with 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. Such 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 rule increases the assessment rate established for the Committee for the 2003-2004 and subsequent fiscal periods from $0.0035 to $0.0051 per hundredweight of potatoes.
The Colorado potato marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Colorado potatoes. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2001-2002 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on May 15, 2003, and recommended 2003-2004 expenditures of $85,695 and an assessment rate of $0.0051 per hundredweight of potatoes. In comparison, last year's budgeted expenditures were $74,643. The assessment rate of $0.0051 is $0.0016 higher than the rate currently in effect. The higher assessment rate is necessary to offset an increase in salaries and operation expenses.
The major expenditures recommended by the Committee for the 2003-2004 fiscal period include $54,520 for salaries, $9,925 for office expenses, and $7,300 for building maintenance. Budgeted expenses for these items in 2002-2003 were $41,703, $9,700, and $7,650, respectively.
The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Colorado potatoes. Colorado potato shipments for the year are estimated at 17,000,000 hundredweight which should provide $86,700 in assessment income. Income derived from handler assessments should be adequate to cover budgeted expenses. Funds in the reserve
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2003-2004 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 90 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 230 producers of potatoes in the regulated production area. Small agricultural firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.
During the 2001-2002 fiscal period, 14,805,719 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on an estimated average f.o.b. price of $11.75 per hundredweight, the Committee estimates that 79, or about 88 percent of the Area No. 2 handlers, had annual receipts of less than $5,000,000.
In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for Colorado fall potatoes for the 2001-2002 fiscal period was $9.65 per hundredweight. The average annual producer revenue for the 230 Colorado Area No. 2 potato producers is therefore calculated to be approximately $621,196. In view of the foregoing, the majority of the Colorado Area No. 2 potato producers and handlers may be classified as small entities.
This rule increases the assessment rate established for the Committee and collected from handlers for the 2003-2004 and subsequent fiscal periods from $0.0035 to $0.0051 per hundredweight of potatoes. The Committee recommended 2003-2004 expenditures of $85,695 and an assessment rate of $0.0051 per hundredweight. The assessment rate is $0.0016 higher than the current rate. The quantity of assessable Area No. 2 Colorado potatoes for the 2003-2004 fiscal period is estimated at 17,000,000 hundredweight. Thus, the $0.0051 rate should provide $86,700 in assessment income and be adequate to meet this fiscal period's expenses.
The major expenditures recommended by the Committee for the 2003-2004 fiscal period include $54,520 for salaries, $9,925 for office expenses, and $7,300 for building maintenance. Budgeted expenses for these items in 2002-2003 were $41,703, $9,700, and $7,650, respectively.
The higher assessment rate is necessary to offset an increase in salaries and operation expenses.
The Committee discussed alternatives to this rule, including alternative expenditure levels. Lower assessment rates were considered, but not recommended because they would not generate the income necessary to administer the program with adequate reserves.
The assessment rate of $0.0051 per hundredweight of assessable potatoes was determined by dividing the total recommended budget by the quantity of assessable potatoes, estimated at 17,000,000 hundredweight for the 2003-2004 fiscal period. This is approximately $1,005 above the anticipated expenses, which the Committee determined to be acceptable.
A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2003-2004 fiscal period could range between $2.95 and $9.65 per hundredweight of Colorado fall potatoes. Therefore, the estimated assessment revenue for the 2003-2004 fiscal period as a percentage of total producer revenue could range between 0.05 and 0.17 percent.
This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Area No. 2 Colorado potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 15, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Colorado Area No. 2 potato 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.
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 material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth,
Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
On and after September 1, 2003, an assessment rate of $0.0051 per hundredweight is established for Colorado Area No. 2 potatoes.
Board of Governors of the Federal Reserve System.
Final rule; technical amendments.
The Board of Governors of the Federal Reserve System (Board) has adopted final, technical amendments to its Regulation F that remove an obsolete section of the rule and correct several typographical errors.
The amendments are effective September 10, 2003.
Adrianne G. Threatt, Counsel (202/452-3554), Legal Division, or John Connolly, Supervisory Financial Analyst (202/452-3621), Division of Banking Supervision and Regulation; for users of Telecommunication Devices for the Deaf (TDD) only, contact 202/263-4869.
As required by the Regulatory Flexibility Act, the Board periodically reviews each of its regulations that has a significant economic impact on a substantial number of small entities to determine whether the regulation should continue without change or be amended or rescinded to minimize the economic impact on small entities (
The Board has completed its review of Regulation F and determined that the substantive requirements of that rule should continue unchanged. However, the Board has adopted several technical amendments designed to update the regulation. Most notably, the Board has removed § 206.7, which contained transition provisions that have not applied since June 1995.
The final rule also corrects several typographical errors in the text of rule. The term “Basle Capital Accord” has been changed to “Basel Capital Accord” to be consistent with international practice. In several cases, the word “of” has been changed to the word “or.” The Board also has revised several references to federal statutes and redesignated three paragraphs of Regulation F so that citations and paragraph designations within the regulation will be internally consistent.
The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments. The Board for good cause determined that public participation is unnecessary because there is no substantive change on which the public could provide meaningful comment. For that same reason, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no new collections of information and proposes no substantive changes to existing collections of information pursuant to the Paperwork Reduction Act.
Banks, Banking, Interbank liability, Lending limits, Savings associations.
12 U.S.C. 371b-2.
By order of the Board of Governors of the Federal Reserve System, September 3, 2003.
Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD), applicable to all Aerospatiale Model ATR42-200, -300, -320, and -500 series airplanes; and all Model ATR72 series airplanes; that currently requires revising the Airplane Flight Manual (AFM) to modify procedures for calculating takeoff performance when Type II or IV de-icing or anti-icing fluids have been used. This amendment requires revising the existing AFM revision to correct the performance values for Model ATR-72 series airplanes and to provide an additional method of compliance for all airplanes. This amendment is prompted by issuance of mandatory continuing airworthiness information by a civil aviation authority. The actions specified by this AD are intended to ensure that the flightcrew is advised of the potential effects of Type II or IV de-icing or anti-icing fluids on the airplane's performance during takeoff, and to ensure that the flightcrew is advised of the revised performance calculations for takeoff to address these effects.
Effective October 15, 2003.
Information pertaining to this amendment may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington.
Gary Lium, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1112; fax (425) 227-1149.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-16-10, amendment 39-12379 (66 FR 44032, August 22, 2001), which is applicable to all Aerospatiale Model ATR42-200, -300, -320, and -500 series airplanes; and all Model ATR72 series airplanes; was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received from a single commenter.
The commenter does not agree that the follow-on procedures for Type II or Type IV de-icing fluid use, as specified in paragraph (b) of the proposed rule, are adequate. The commenter states that using these types of fluid on the subject airplanes can cause higher-than-normal stick forces during rotation. The commenter notes that a lightly loaded ATR airplane typically has a rotation speed of under 100 knots, and due to the shearing dynamics of the de-icing fluid, there may be fluid on the tail during rotation. The commenter adds that it objects to the solutions for these problems, as specified in the proposed rule and recommended by the airplane manufacturer and the Direction Générale de l'Aviation Civile (which is the airworthiness authority for France). The commenter states that Compliance Method Number 1 would result in a flightcrew aborting the takeoff after V
The FAA does not agree that a potential unsafe condition could occur should an operator choose to use Compliance Method Number 1. This compliance method necessitates an increase in required runway length in order to provide the necessary margins in a case of late rotation or an aborted takeoff after V
In addition, we do not agree that implementation of Compliance Method Number 2 would cause an unsafe condition. The use of this procedure would include a mandatory pre-takeoff briefing between the flightcrew members regarding the need for assistance in rotating the airplane if necessary. Thus, the co-pilot would be prepared for such a request should the pilot decide to ask for assistance. No change to the final rule is necessary in this regard.
The commenter previously requested an alternative method of compliance (AMOC) for AD 2001-16-10, amendment 39-12379. (The requirements of that AD are restated in paragraph (a) of the proposed rule.) After receiving the AMOC, the commenter implemented new training procedures for its flightcrews to teach them to anticipate the additional stick forces that may be required when using Type II or Type IV de-icing fluid. The training procedures have been added to the training manuals and training curriculum, and the commenter notes that following those procedures is safer than following those specified in the proposed rule. The commenter does not make a specific request; however, we infer that the commenter wants its procedures to be used by all operators.
Although the commenter has an FAA-approved AMOC allowing the use of other training procedures, we do not agree that those training procedures can be used by all operators. Since 1991, there have been five incidents of aborted takeoff after V
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.
We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.
There are approximately 159 airplanes of U.S. registry that will be affected by this AD.
The AFM revision currently required by AD 2001-16-10 takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required revision of the AFM on U.S. operators is estimated to be $10,335, or $65 per airplane.
The new AFM revision that is required in this AD action takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $10,335, or $65 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
To ensure that the flightcrew is advised of the potential effects of Type II or IV de-icing or anti-icing fluids on the airplane's performance during takeoff, and to ensure that the flightcrew is advised of the revised performance calculations for takeoff to address these effects, accomplish the following:
(a) Within 15 days after September 26, 2001 (the effective date of AD 2001-16-10, amendment 39-12379), revise the Appendices and Supplements chapter of the AFM by including either the following manufacturer's Appendix “Takeoff after use of Fluid Type II or IV” or a copy of this AD in the AFM.
This appendix applies only to aircraft de-iced or anti-iced before takeoff, using fluid Type II or IV.
These types of fluid may lead to an increase in control forces necessary to rotate, and then to a modification of takeoff performance.
Therefore, this flight manual must be modified as follows:
The general information in section 1 is applicable.
The limitations in section 2 are applicable.
The normal procedures in section 3 are applicable.
The emergency procedures in section 4 are applicable.
The procedures following failures in section 5 are applicable.
The performances in section 6 for dry runways and in section 7.03 for non-dry runways (advisory materials) are applicable with the addition of the following for takeoff computations:
Data of Section 7 are applicable by adding what follows:
For the dispatch cases:
Dispatch is not authorized in the following cases:
(b) For Model ATR 42-200, -300, -320, and -500 series airplanes: Within 15 days after the effective date of this AD, revise the Appendices and Supplements chapter of the AFM by removing the AFM revision required by paragraph (a) of this AD and inserting the following procedures in the AFM (this may be accomplished by inserting a copy of this AD into the AFM):
This appendix applies only to aircraft de-iced or anti-iced before takeoff, using fluid Type II or IV.
These types of fluid may lead to an increase in control forces necessary to rotate, and then to a modification of takeoff performance.
Therefore, this flight manual must be modified as follows:
The general information in Section 1 is applicable.
The limitations in Section 2 are applicable.
The normal procedures in Section 3 are applicable.
The emergency procedures in Section 4 are applicable.
The procedures following failures in Section 5 are applicable.
The performances in Section 6 for dry runways and in Section 7.03 for non-dry runways (advisory materials) are applicable with the addition of the following for takeoff computations:
Data of Section 7 are applicable by adding what follows:
For the dispatch cases:
Dispatch is not authorized in the following cases:
The general information in Section 1 is applicable.
The limitations in Section 2 are applicable.
The normal procedures in Section 3 are applicable with the addition of the following:
The Captain must be the pilot flying and the pre-takeoff briefing must include the following takeoff procedure (refer to point 5).
The emergency procedures in Section 4 are applicable.
The procedures following failures in Section 5 are applicable with the addition of the following:
In case of difficulties to rotate, the Captain (CPT) should request the non-flying pilot's (NFP's) assistance. In that case, on CPT order, NFP pulls the control column until 5° pitch attitude is reached, then NFP releases the controls.
The performances in Section 6 for dry runways and in Section 7.03 for non-dry runways (advisory materials) are applicable with the addition of the following for takeoff computations:
Increase TOD by 70 m for ATR 42-300.
Increase TOD by 80 m for ATR-42-400/-500.
Data of Section 7 are applicable with the addition of the following:
For the dispatch cases:
Dispatch is not authorized in the following cases:
(c) For Model ATR 72 series airplanes: Within 15 days after the effective date of this AD, revise the Appendices and Supplements chapter of the AFM by removing the AFM revision required by paragraph (a) of this AD and inserting the following procedures in the AFM (this may be accomplished by inserting a copy of this AD into the AFM):
This appendix applies only to aircraft de-iced or anti-iced before takeoff, using fluid Type II or IV.
These types of fluid may lead to an increase in control forces necessary to rotate, and then to a modification of takeoff performance.
Therefore, this flight manual must be modified as follows:
The general information in Section 1 is applicable.
The limitations in Section 2 are applicable.
The normal procedures in Section 3 are applicable.
The emergency procedures in Section 4 are applicable.
The procedures following failures in Section 5 are applicable.
The performances in Section 6 for dry runways and in Section 7.03 for non-dry runways (advisory materials) are applicable with the addition of the following for takeoff computations:
Data of Section 7 are applicable by adding what follows:
For the dispatch cases:
Dispatch is not authorized in the following cases:
The general information in Section 1 is applicable.
The limitations in Section 2 are applicable.
The normal procedures in Section 3 are applicable with the addition of the following:
The Captain must be the pilot flying and the pre-takeoff briefing must include the following takeoff procedure (refer to point 5).
The emergency procedures in Section 4 are applicable.
The procedures following failures in Section 5 are applicable with the addition of the following:
In case of difficulties to rotate, the Captain (CPT) should request the non-flying pilot's (NFP's) assistance. In that case, on CPT order, NFP pulls the control column until 5° pitch attitude is reached, then NFP releases the controls.
The performances in Section 6 for dry runways and in Section 7.03 for non-dry runways (advisory materials) are applicable with the addition of the following for takeoff computations:
Increase TOD by 70 m.
Data of Section 7 are applicable with the addition of the following:
For the dispatch cases:
Dispatch is not authorized in the following cases:
(d)(1) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Operations Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
(2) Alternative methods of compliance, approved previously per AD 2001-16-10, amendment 39-12379, are approved as alternative methods of compliance with this AD.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(e) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in French airworthiness directives 2000-448-053(B) R2 and 2000-449-082(B) R2, both dated September 19, 2001.
(f) This amendment becomes effective on October 15, 2003.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective September 10, 2003. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 10, 2003.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
4. The Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Securities and Exchange Commission.
Final rule; correction.
This document corrects the IC Release number to a final rule published in the
In the Office of Information Technology, Rick Heroux at (202) 942-8800; for questions concerning Investment Management company filings, Ruth Armfield Sanders, Senior Special Counsel, or Shaswat K. Das, Senior Counsel, Division of Investment Management, at (202) 942-0978; and for questions concerning Corporation Finance company filings, Herbert Scholl, Office Chief, EDGAR and Information Analysis, Division of Corporation Finance, at (202) 942-2940.
In FR Document No. 03-19087 beginning on page 44876 for Thursday, July 31, 2003, the IC Release number was incorrectly stated. The correct number is IC-26103.
Drug Enforcement Administration (DEA), Justice.
Final rule.
This final rule is issued by the Administrator of the Drug Enforcement Administration (DEA) to extend the temporary scheduling of N-benzylpiperazine (BZP), 1-(3-trifluoromethylphenyl) piperazine (TFMPP) and 2,5-dimethoxy-4-(n)-propylthiophenethylamine (2C-T-7) in Schedule I of the Controlled Substances Act (CSA). The temporary scheduling of BZP, TFMPP and 2C-T-7 is due to expire on September 19, 2003. This document will extend the temporary scheduling of BZP, TFMPP and 2C-T-7 to March 19, 2004 or until rulemaking proceedings are completed, whichever occurs first.
September 10, 2003.
Frank Sapienza, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Telephone: (202) 307-7183.
On September 20, 2002, the Deputy Administrator of the DEA published two separate final rules in the
The DEA has gathered and reviewed the available information regarding the pharmacology, chemistry, trafficking, actual abuse, pattern of abuse and the relative potential for abuse for BZP, TFMPP and 2C-T-7. The Administrator has submitted these data to the Assistant Secretary for Health, Department of Health and Human Services. In accordance with 21 U.S.C. 811(b), the Administrator has also requested a scientific and medical evaluation and a scheduling recommendation for BZP, TFMPP and 2C-T-7 from the Assistant Secretary for Health. Therefore, the temporary scheduling of BZP, TFMPP and 2C-T-7 which is due to expire on September 19, 2003, may be extended until March 19, 2004, or until proceedings initiated in accordance with 21 U.S.C. 811(a) are completed, whichever occurs first.
Pursuant to U.S.C. 811(h)(2) the Administrator hereby orders that the temporary scheduling of BZP, TFMPP and 2C-T-7 be extended until March 19, 2004, or until the proceedings initiated in accordance with 21 U.S.C. 811(a) are completed, whichever occurs first.
The Administrator of the DEA hereby certifies that extension of the temporary placement of BZP, TFMPP and 2C-T-7 in Schedule I of the CSA will have no significant impact upon entities whose interests must be considered under the Regulatory Flexibility Act, 5 U.S.C. 601
The six-month extension of BZP, TFMPP, and 2C-T-7 in Schedule I of the CSA is not a significant regulatory action for the purposes of Executive Order (E.O.) 12866 of September 30, 1993. Drug scheduling matters are not subject to review by the Office of Management and Budget (OMB) pursuant to the provisions of E.O. 12866, section 3(d)(1). This action responds to an emergency situation posing an imminent hazard to the public safety and is essential to the criminal law enforcement function of the United States.
This action has been analyzed in accordance with the principles and criteria in Executive Order 13132, and it has been determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Drug Enforcement Administration (DEA), Justice.
Final rule.
On October 24, 2001, DEA published a Notice of Proposed Rulemaking titled “Establishment of a Threshold for Gamma-Butyrolactone” (66 FR 53746) that proposed a zero kilogram threshold and the exemption of transactions of 16,000 kilograms (net weight) or more in a single container. This final rule establishes a zero kilogram threshold for domestic, export, and import transactions of gamma-butyrolactone (GBL) and excludes from the definition of a “regulated transaction” all transactions of 4,000 kilograms (net weight) or more in a single container. The DEA is reducing the weight required for exclusion from what was proposed in response to a comment that showed that transactions of 4,000 kilograms or more in a single container are not likely to be diverted.
This final rule is effective October 10, 2003.
Frank L. Sapienza, Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537.
This rulemaking amends Title 21 of the Code of Federal Regulations (CFR) 1310.04(g)(1) by adding a new paragraph to establish that GBL is not assigned a threshold. In addition, 21 CFR 1310.08 is being amended by adding a new paragraph to identify as an “excluded transaction,” transactions in GBL of 4,000 kilograms (net weight) or more in a single container. This rulemaking applies to import, export, and domestic (including retail) transactions. All transactions in GBL, unless defined in 21 CFR 1310.08, are regulated transactions. Persons who handle GBL must be registered with DEA, even if their distributions are excluded from the definition of a “regulated transaction.” Regulated persons include manufacturers who distribute, distributors, importers, and exporters of GBL.
Law enforcement authorities have identified GBL in gamma-hydroxybutyric acid (GHB) clandestine laboratories and documented its use as a GHB precursor. GBL is a necessary chemical precursor in the clandestine synthesis of GHB because, to date, no other chemical has been substituted for GBL in this process. Congress recognized this and controlled GBL as a List I chemical upon enactment of Pub. L. 106-172 on February 18, 2000.
GBL is a unique chemical precursor. It can be converted to GHB by a simple chemical reaction or it can be ingested directly, without running a chemical reaction. That is, the body efficiently converts GBL to GHB when ingested. Because GBL is converted to GHB by the body's own action, GBL is routinely substituted for GHB to obtain the same type of intoxication. Congress recognized this and adopted in Pub. L. 106-172 a new subparagraph to 21 U.S.C. 802(32), the section of the Controlled Substances Act (CSA) that defines a “controlled substance analogue.” The subparagraph maintains that the placement of GBL, or any other chemical, as a listed chemical does not preclude a finding that the chemical is a controlled substance analogue. DEA recognizes this concern of Congress that GBL is being used as a direct substitute for a Schedule I controlled substance. Although GBL is a chemical commodity when used by legitimate industry, diversion of GBL can be tantamount to diversion of a Schedule I controlled substance when it is intended for human consumption.
GBL was placed in the CSA as a List I chemical effective February 18, 2000, by enactment of Pub. L. 106-172, the “Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 1999” (65 FR 21645, April 24, 2000). That law, however, did not establish a threshold. Consequently, all transactions in GBL are regulated transactions as described in 21 CFR 1300.02(b)(28) until publication of this final rule.
The final rule titled, “Placement of Gamma-Butyrolactone in List I of the Controlled Substances Act (21 U.S.C. 802(34))” was published in the
A Notice of Request for Information was published in the
Transactions involving listed chemicals that are not exempt by statute may be removed from the definition of “regulated transaction” (21 U.S.C. 802(39)) if regulation of such transactions is determined to be unnecessary for purposes of law enforcement. One option for doing so includes the establishment of a quantity threshold under 21 U.S.C. 802(39)(A).
DEA determined that it is necessary for purposes of law enforcement that no threshold be established for GBL. In the Notice of Proposed Rulemaking (NPRM) published at 66 FR 53746, DEA gave reasons why no threshold should be established. These included the small weights of GBL diverted for production of GHB and the fact that GBL is substituted directly, without chemical conversion, for GHB. No comments were received objecting to a zero threshold. Therefore, 21 CFR 1310.04(g)(1) is being modified to add a new paragraph to include GBL, thus finalizing that no threshold is established. This means that all transactions in GBL, except those defined at 21 CFR 1310.08(k), are regulated transactions. If the transaction is considered a regulated transaction, recordkeeping and reporting requirements as specified in 21 CFR Part 1310 apply.
DEA is authorized to remove certain categories of transactions from the definition of a “regulated transaction.” Under 21 U.S.C. 802(39)(A)(iii) the agency may, by regulation, exempt “any category of transaction or any category of transaction for a specific listed chemical or chemicals specified by
DEA would like to emphasize that the exclusion applies only to transactions of one or more single containers holding 4,000 kilograms (net weight) or more of GBL. That is, in multi-container shipments, it is a regulated transaction if any container has less than 4,000 kilograms or if the 4,000 kilograms is reached only by combining the weight of GBL in each container.
DEA received one comment in response to the Notice of Proposed Rulemaking “Establishment of a Threshold for Gamma-Butyrolactone” published at 66 FR 53746. The comment generally supported the proposal and offered comments on specific issues.
The comment informed DEA that some tank truck shipments of bulk chemicals are made by single segmented compartments. The minimum weight of GBL distributed by these bulk shipments is 9,000 pounds or 4,086 kilograms. Therefore, under the proposed exclusion of bulk distributions of 16,000 kilograms (net weight), these 4,086 kilogram shipments would be regulated. DEA was not aware of the lower minimum bulk shipment at the time the exclusion was proposed. DEA determined that this lower net weight for bulk shipments would not pose a greater risk of diversion and, therefore, based on the comment received, is providing an exclusion for domestic, import, and export distributions of gamma-butyrolactone weighing 4,000 kilograms (net weight) or more in a single container. This action will eliminate all industrial distributions identified by DEA that are not at significant risk of diversion.
The commenter requested clarification as to whether a DEA Form 486 will continue to be required for bulk export shipments. A DEA Form 486 is necessary only for exports involving regulated transactions. If the transaction is excluded from the definition of a “regulated transaction” pursuant to 21 CFR 1310.08, a DEA Form 486 is not necessary. If the export does not meet the conditions in 21 CFR 1310.08, a DEA Form 486 is necessary.
The commenter requested clarification of the definition of “non-regulated transaction.” A non-regulated transaction is specified in 21 CFR 1310.08 as an “excluded transaction” pursuant to 21 U.S.C. 802(39)(A)(iii). An excluded transaction is not subject to the recordkeeping or reporting requirements of 21 U.S.C. 830(a) and (b) except that 21 U.S.C. 830(b)(1)(C) applies to all regulated persons. That is, all regulated persons are required to report any unusual or excessive loss or disappearance of a listed chemical.
The definition of a “regulated person” is given at 21 U.S.C. 802(38) to include anyone who manufactures, distributes, imports, or exports a listed chemical, or acts as a broker or trader for an international transaction involving a listed chemical. Except for persons acting as brokers or traders for an international transaction, regulated persons handling any List I chemical are required to register pursuant to 21 U.S.C. 822. This registration requirement also applies to those regulated persons who are involved in only “excluded transactions.” In the case of this final rule, persons who only distribute 4,000 kilograms (net weight) or more of GBL in a single container are not subject to recordkeeping and reporting requirements but are required to register. A regulated person does not include someone who receives a listed chemical and consumes it by making a chemical mixture, as defined at 21 U.S.C. 802(40), or changes the listed chemical into a non-listed chemical by means of a chemical reaction.
This final rule will not have a significant economic impact on small business. Pub. L. 106-172 amended the CSA to make GBL a List I chemical effective February 18, 2000. Regulatory impact due to registration requirements was addressed in the final rule “Placement of gamma-butyrolactone in List I of the Controlled Substances Act (21 U.S.C. 802(34))” (65 FR 21645). In that final rule, DEA concluded that making GBL a List I chemical would not have a significant economic impact. That conclusion was based on an estimated number of new registrants and that all distributions in GBL are regulated. This final rule does not add new regulatory controls. In fact, it eliminates some large-scale industrial transactions from the definition of “regulated transaction,” thus, granting additional relief to industry. DEA identified 4,000 kilograms as the minimum amount available by tank-truck. DEA determined that clandestine operations will have difficulty handling tank-truck shipments but will be able to divert self-contained shipments of GBL,
New 21 CFR 1310.04(g)(1)(v) and 1310.08(k) are being added in this final rule. The designations of these new paragraphs are different than what was originally proposed because the CFR has been modified since the proposal was published.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Administrator has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, Section 1(b), Principles of Regulation. DEA has determined that this rule is not a “significant regulatory action” under Executive Order 12866, Section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.
This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.
This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.
This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Drug traffic control, List I and List II chemicals, Reporting and recordkeeping requirements.
21 U.S.C. 802, 830, 871(b).
(g) * * *
(1) * * *
(v) gamma-Butyrolactone (Other names include: GBL; Dihydro-2(3H)-furanone; 1,2-Butanolide; 1,4-Butanolide; 4-Hydroxybutanoic acid lactone; gamma-hydroxybutyric acid lactone)
(k) Domestic, import, and export distributions of gamma-butyrolactone weighing 4,000 kilograms (net weight) or more in a single container.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Final rule; approval of amendment.
We are approving a proposed amendment to the Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The program amendment increases the permit and anniversary fees for Coal Surface Mining and Reclamation permits issued by the Virginia Department of Mines, Minerals and Energy (DMME).
September 10, 2003.
Mr. Robert A. Penn, Director, Big Stone Gap Field Office; Telephone: (540) 523-4303. Internet:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.”
By letter dated May 16, 2003 (Administrative Record Number VA-1029), the DMME submitted an amendment to the Virginia program. In its letter, the DMME stated that the 2003 Virginia General Assembly enacted legislation (House Bill 2465/ Senate Bill 1173 approved March 18, 2003) to increase the permit and anniversary fees for Coal Surface Mining and Reclamation permits issued by DMME.
The proposed amendment revises the Code of Virginia at section 45.1-235.E and the Virginia Coal Surface Mining and Reclamation Regulations at 4VAC25-130-777.17 concerning permit fees. Specifically, Virginia is increasing the permit application fee for a surface coal mining and reclamation permit from $12.00 to $26.00 per acre or any fraction thereof for the total acreage permitted. In addition, the anniversary fee is being increased from $6.00 to $13.00 per acre or any fraction thereof for areas disturbed under the permit. This fee is paid each year on the anniversary of the permit's issuance, and represents an ongoing permitting cost.
We announced receipt of the proposed amendment in the July 7, 2003,
We are approving the amendment. Our findings concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17 are presented below.
The Federal regulations at 30 CFR 777.17, concerning permit fees, provide that an application for a surface coal mining and reclamation permit shall be accompanied by a fee determined by the regulatory authority. The Federal regulations also provide that the fee may be less than, but shall not exceed, the actual or anticipated cost of reviewing, administering, and enforcing the permit. The fee increases proposed by Virginia are the first such increases since the State received permanent program approval in 1981. We find that the permit fees proposed by Virginia are reasonable and consistent with the
No public comments were received in response to our requests for comments from the public on the proposed amendments.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on May, 29, 2003, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the Virginia program (Administrative Record Number VA-1030). On June 4, 2003, the U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS) responded (Administrative Record Number VA-1032) and stated that it concurs with the changes concerning permit and fee rates. These changes, NRCS stated, will better reflect actual AML costs and changes passed by the 2003 Virginia General Assembly. NRCS stated that the amendment proposed by Virginia should conform to presently practiced regulations and costs to better suit their intended use. NRCS recommended that the amendment be accepted by OSM. As noted in our findings above, we are approving the amendment.
On June 6, 2003, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) responded and stated that the amendment appears adequate to serve the intended purpose and does not conflict with MSHA regulation or policy (Administrative Record Number VA-1033).
On July 21, 2003, the U.S. Department of the Interior, Bureau of Land Management, Solid Minerals Group responded and stated that it had no comments regarding the revision (Administrative Record Number VA-1035).
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
The EPA responded by letter dated July 17, 2003 (Administrative Record Number VA-1034), and stated that there are no apparent inconsistencies with the Clean Water Act or other statutes or regulations under EPA's jurisdiction. EPA offered no further comments.
Based on the above findings, we approve the amendment sent to us by Virginia on May 16, 2003.
To implement this decision, we are amending the Federal regulations at 30 CFR Part 946, which codify decisions concerning the Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
This rule does not have takings implications. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.
This rule is exempt from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. This final rule applies only to the Virginia program and therefore does not affect tribal programs.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Forest Service, USDA.
Interim final rule; request for comment.
The Department is issuing an interim final rule to extend the transition period for site-specific project decisions in the Forest Service land and resource management planning regulations adopted November 9, 2000. Early in 2001, the Department determined that the November 2000 planning regulations needed to be revised, and a proposed planning rule was published on December 6, 2002, (67 FR 72770). An interim final rule at 36 CFR 219.35(b), published May 20, 2002, (67 FR 35431), already has extended the transition period for land and resource management plan amendments and revisions until the date of adoption of new planning regulations. This interim final rule at 36 CFR 219.35(d) provides the same extension of the transition period for site-specific projects. Comments are requested.
Send written comments to: USDA FS Content Analysis Team, Attn: USDA FS Compliance Deadline, P.O. Box 7669, Missoula, MT 59807; by electronic mail to
Dave Barone, Planning Specialist, Ecosystem Management Coordination Staff, Forest Service at (202) 205-1019.
On November 9, 2000, the Secretary of Agriculture adopted a final rule substantially revising the National Forest System land and resource management planning regulations at 36 CFR part 219 (65 FR 67514), which had been previously adopted in 1982 (47 FR 43026, September 30, 1982). These regulations, which implement the National Forest Management Act, apply to the development, revision, and amendment of land and resource management plans. The November 2000 planning rule also applies to site-specific project decisions. Section 219.35(d) of the 2000 planning rule requires all site-specific project decisions made by the responsible official as of November 9, 2003, to conform with the provisions of the 2000 planning rule at 36 CFR part 219.
Section 219.35 of the 2000 planning rule also provided for a transition from the 1982 planning rule to the 2000 planning rule.
Subsequent to the adoption of the 2000 planning rule, the Department determined in early 2001 that there were serious concerns regarding the agency's ability to implement the 2000 planning rule, such as the number of very detailed analytical requirements; the lack of clarity regarding many of the requirements; the lack of flexibility; and the lack of recognition of the limits of agency budgets and personnel. Therefore, on May 20, 2002, the Department issued an interim final rule at § 219.35(b) to delay mandatory compliance with the 2000 planning rule for land and resource management plan amendments and revisions until a new final planning rule is adopted (67 FR 35431); this delay would allow the agency time to propose and adopt revisions to the 2000 planning rule.
In the May 20, 2002,
A proposed revision of the 2000 planning rule was published on December 6, 2002, (67 FR 72770). One change is that this rule, unlike the 2000 rule, would not apply to site-specific project decisions.
This interim final rule at § 219.35(d) provides the same extension of compliance deadline for site-specific projects as did the 2002 interim final rule at § 219.35(b) for plan amendments and revisions; until the Department promulgates the final planning regulations.
The provisions of the 2000 planning rule are unclear regarding the relationship of site-specific project decisions to the development of landscape goals and information development requirements for addressing ecological, social, and ecomonic sustainability. Reviews of the 2000 planning rule have pointed out the issues and problems related to mixing programmatic and project-level planning direction. There is a lack of clarity about how projects are to be compliant with the rule. This uncertainty and lack of clarity may pose an unreasonable analysis burden on field units when planning for site-specific project decisions.
The Department has proposed improvements and revisions to the 2000 planning rule that would remove the applicability of part 219 to site-specific project level decisions (67 FR 72770, December 6, 2002). Instead, the requirements of the 2002 proposed planning rule would apply at the programmatic level only to the development, amendment, and revision of land and resource management plans and (unlike the requirements of the 2000 planning rule) would not apply to site-specific projects. Under the 2002 proposed rule, a plan would guide site-specific project implementation and project decisions would be required to be consistent with the plan, but a plan would not determine the selection or implementation of site-specific actions.
Therefore, the Department has determined that it is necessary to extend the transition period at 36 CFR 219.35(d) by which the 2000 planning rule requires compliance for site-specific project decisions, currently set at November 9, 2003, until the promulgation of a final planning rule. While it has been anticipated that a final revised planning rule would be promulgated by the end of 2003, such a final rule may not be adopted by November 9, 2003.
Accordingly, extension of the transition period at 36 CFR 219.35(d) until a final planning rule is adopted is necessary for the following reasons: (1) To clarify planning requirements for site-specific project decisions; (2) to grant relief to the units of the National Forest System from a regulatory provision of the 2000 planning rule soon to be made obsolete; and (3) in case the 2002 proposed planning rule is not finalized by November 9, 2003.
The Administrative Procedure Act (APA) generally requires agencies to provide advance notice and an opportunity to comment on agency rulemakings. However, the APA also allows agencies to promulgate rules without notice and comment when an agency, for good cause, finds that notice and public comment are “impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(3)(B)). Furthermore, the APA exempts certain rulemakings from its notice and comment requirements, including rulemakings involving “public property” and “rules of agency organization, procedure, or practice” (5 U.S.C. 553 (a)(2) and (b)(3)(A)).
In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the APA notice and comment rulemaking exemptions (July 24, 1971; 36 FR 13804). Thus, USDA agencies proposing rules generally provide notice and an opportunity to comment on proposed rules. However, the Hardin policy permits agencies to publish final rules without prior notice and comment when an agency finds for good cause that notice and comment procedures would be impracticable, unnecessary, or contrary to the public interest. The courts have recognized this good cause exemption of the Hardin policy and have indicated that, since the publication requirement was adopted voluntarily, the Secretary should be afforded “more latitude” in making a good cause determination (
To the extent that 5 U.S.C. section 553 applies to this interim final rule, good cause exists to exempt this rulemaking from advance notice and comment (5 U.S.C. 553 (b)(B) and 553 (d)(3)). The Department has determined that delaying an extension of the compliance date in § 219.35(d) to obtain public comment is impracticable, unnecessary, and contrary to the public interest. Earlier in this preamble, the Department has made clear that an extension of the compliance date is necessary. Given the length of time (usually up to 6 months) it takes field units to plan for site-specific project decisions, it is impracticable to provide for prior public comment on this extension. The agency's publication of a proposed rule in 2002 to revise the November 2000 planning rule, and the fact that this
The public interest is best served by extending the compliance date and avoiding the unnecessary expenditure of agency time and effort to comply with a regulatory provision soon to be made obsolete. The interim final rule is effective immediately upon publication, although the Department will accept comment on the modification of § 219.35(d).
For the reasons identified in this preamble, the Department finds good cause to adopt, without prior notice and comment, this interim final rule that amends § 219.35(d) to extend the transition date by which site-specific project decisions must comply with the November 2000 Forest Service land and resource management planning regulations, from the current deadline of November 9, 2003, until the Department promulgates a revised final planning rule. This interim final rule does not change any other provisions of the 2000 planning rule.
This interim final rule has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not a significant rule. This interim final rule will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. This interim final rule will not interfere with an action taken or planned by another agency, nor will it raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of beneficiaries of such programs. Accordingly, this interim final rule is not subject to Office of Management and Budget review under Executive Order 12866.
Moreover, this interim final rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601
This interim final rule at § 219.35(d) has no direct or indirect effect on the environment, but merely extends the date by which site-specific project decisions must conform to the 2000 planning rule. The planning regulation (36 CFR part 219) deals with the development and adoption of Forest Service land and resource management plan decisions. An environmental assessment was completed on the 2000 planning rule, with a finding that the rule would have no significant impact on the environment. Moreover, section 31.1b of Forest Service Handbook 1909.15, Environmental Policy and Procedures Handbook (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or environmental impact statement rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions. Based on the nature and scope of this rulemaking and the procedural nature of 36 CFR part 219, the Department has determined that this interim final rule falls within this category of actions and that no extraordinary circumstances exist as currently defined that would require preparation of an environmental assessment or environmental impact statement.
This interim final rule has been reviewed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this interim final rule does not constitute a significant energy action as defined in the Executive order. Procedural in nature, this interim final rule merely extends a compliance date.
This interim final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Department has considered this interim final rule under the requirements of Executive Order 13132 on federalism, and has made an assessment that the rule conforms with the federalism principles set out in this Executive order; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further assessment of federalism implications is necessary at this time.
Moreover, this interim final rule does not have tribal implications as defined by Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, and therefore advance consultation with tribes was not required.
This interim final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the rule will not pose the risk of a taking of private property.
This interim final rule has been reviewed under Executive Order 12988 on civil justice reform. This interim final rule (1) does not preempt State and local laws and regulations that conflict with or impede its full implementation; (2) has no retroactive effect; and (3) will not require administrative proceedings before parties may file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the Department has assessed the effects of this interim final rule on State, local and tribal governments and the private sector. This interim final rule will not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
Administrative practice and procedure, Environmental impact
5 U.S.C. 301; and Secs. 6 and 15, 90 Stat. 2949, 2952, 2958 (16 U.S.C. 1604, 1613).
(d) The date by which site-specific decisions made by the responsible official must be in conformance with the provisions of this subpart is extended from November 9, 2003, until the Department promulgates the final planning regulations published as proposed on December 6, 2002 (67 FR 72770).
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for combined residues of trifloxystrobin in or on leaf petioles subgroup 4B; and vegetable, root, except sugar beet, subgroup 1B, except radish. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA).
This regulation is effective September 10, 2003. Objections and requests for hearings, identified by docket ID number OPP-2003-0244, must be received on or before November 10, 2003.
Written objections and hearing requests may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit VI. of the
Shaja R. Brothers, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,Washington, DC 20460-0001; telephone number: (703) 308-3194; e-mail address:
You may be potentially affected by this action if you an are agricultural producer, food manufacturer, and pesticide manufacturer 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
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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
In the
The petition requested that 40 CFR 180.555 be amended by establishing tolerances for combined residues of the fungicide, trifloxystrobin, (benzeneacetic acid, (
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).
Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for tolerances for combined residues of trifloxystrobin and the free form of its acid metabolite CGA-321113 on leaf petioles subgroup 4B at 3.5 ppm, and vegetable, root, except sugar beet, subgroup 1B, except radish at 0.10 ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by trifloxystrobin are discussed in Unit III.A. of the final rule on trifloxystrobin, which was published in the
The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.
For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factors (SF) is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.
For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.
The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10
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The Agency uses the FQPA Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone model/Exposure Analysis Modeling System (PRZM/EXAMS), to produce estimates of pesticide concentrations in an index reservoir. The screening concentration in ground water (SCI-GROW) model is used to predict pesticide concentrations in shallow ground water. For a screening-level assessment for surface water EPA will use FIRST (a Tier I model) before using PRZM/EXAMS (a Tier II model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. FIRST and PRZM/EXAMS incorporate an index reservoir environment, and a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.
None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a screen for sorting out pesticides for which it is unlikely that drinking water concentrations would exceed human health LOC.
Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to trifloxystrobin they are further discussed in the aggregate risk sections in Unit III.E.
Trifloxystrobin is immobile, and degrades rapidly in soil and aquatic environments to the primary isomer, CGA-321113. EECs were calculated for total trifloxystrobin residues (parent trifloxystrobin plus metabolites) using the FIRST model for surface water and the SCI-GROW model for ground water. EPA's interim method for drinking water estimates for pesticides used in rice paddies was also used to generate surface water EECs.
Surface water concentrations for total trifloxystrobin residues are 92 parts per billion (ppb) for the peak value (acute) and 50 ppb for the chronic value using the FIRST model for terrestrial uses (turfgrass). To estimate surface water concentrations for use on rice, an interim rice paddy model was used. For surface water concentrations from treated rice, the acute estimate for the parent is 48 ppb, and the chronic estimate for the total parent plus degradate is 140 ppb. The rice estimate is considered to be an overestimate of the true value found in the environment due to the assumptions used in the drinking water model for rice. Further, EPA considers the turfgrass estimate to be a more realistic estimate of drinking water residues. The ground water screening concentration used for both acute and chronic assessments is 3.4 ppb. These values represent upper-bound estimates of the concentrations of total residues of trifloxystrobin that might be found in surface water and ground water from uses on turfgrass at the maximum application rate.
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Trifloxystrobin is currently registered for use on the following residential non-dietary sites: Turfgrass and ornamental (Compass
The MOE for adult dermal risk from postapplication exposure is 1,300 and 800 for children. Children's risk from oral exposures range from 1,600 to 220,000. When incidental oral exposure from all possible residential sources are combined (ingestion of residues on turfgrass from hand-to-mouth activities, mouthing turfgrass and eating soil), the result is an MOE of 1,100. Therefore, postapplication exposure and risk estimates for adults and children are considered to be below EPA's LOC.
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EPA does not have, at this time, available data to determine whether trifloxystrobin has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to trifloxystrobin and any other substances and trifloxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that trifloxystrobin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at
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i. There is no indication of increased susceptibility of rat or rabbits to trifloxystrobin. In the developmental and reproduction toxicity studies, effects in the fetuses/offspring were observed only at or above treatment levels which resulted in evidence of parental toxicity.
ii. The Agency determined that a developmental neurotoxicity study in rats is not required.
iii. Although an acute neurotoxicity study is required (the submitted study was unacceptable), the lack of an acute neurotoxicity study does not impact EPA's ability to make an FQPA SF decision.
iv. The acute and chronic dietary food exposure assessments utilize existing and proposed tolerance level residues and 100% crop treated information for all commodities. By using these screening-level assessments, actual exposures/risks will not be underestimated.
v. The exposure assessments will not underestimate the potential dietary (food and drinking water) or non-dietary exposures for infants and children from the use of trifloxystrobin.
vi. The dietary drinking water assessment utilizes water concentration values generated by model and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations which are not likely to be exceeded.
vii. The residential postapplication assessment is based upon the residential Standard Operating Procedures (SOPs). The assessment is based upon surrogate study data. These data are reliable and are not expected to underestimate risk to adults or children. The residential SOPs are based upon reasonable “worst-case” assumptions and are not expected to underestimate risk.
To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water (e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)). This allowable exposure through drinking water is used to calculate a DWLOC.
A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.
When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 690 for the U.S. Population; 154 for children 1-2 years old; 970 for females 13-49 years old; and 950 for adults 50+ years old. These aggregate MOEs do not exceed the Agency's LOC for aggregate exposure to food and residential uses. In addition, short-term DWLOCs were calculated and compared to the EECs for chronic exposure of trifloxystrobin in ground water and surface water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's LOC, as shown in Table 4 of this unit:
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Adequate enforcement methodology (gas chromatography method using nitrogen/phosphorus detector) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address:
There are no Codex, Canadian, or Mexican maximum residue limits established for trifloxystrobin. Harmonization is thus not an issue at this time.
Therefore, the tolerances are established for combined residues of trifloxystrobin, (benzeneacetic acid, (
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2003-0244 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before November 10, 2003.
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Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.
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EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
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A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes a tolerance under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
(a) * * *
Federal Communications Commission.
Final rule.
The Commission, at the request of Scanlan Television, Inc., substitutes DTV channel 9c for DTV channel 56 at Sault Saint Marie, Michigan.
Effective October 20, 2003.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MB Docket No. 02-83, adopted August 28, 2003, and released September 4, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
Agricultural Marketing Service, USDA.
Proposed rule.
This rule would increase the assessment rate established for the Northwest Fresh Bartlett Pear Marketing Committee (Committee) for the 2003-2004 and subsequent fiscal periods from $0.025 to $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears handled. The Committee locally administers the marketing order, which regulates the handling of fresh Bartlett pears grown in the States of Oregon and Washington. Authorization to assess fresh Bartlett pear handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period begins July 1 and ends June 30. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by September 25, 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:
Susan M. Hiller, Northwest Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third Avenue, Suite 385; telephone: (503) 326-2724, Fax: (503) 326-7440; 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 No. 147 and Order No. 931, both as amended (7 CFR part 931), regulating the handling of fresh Bartlett pears grown in the States of Oregon and Washington, 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. Under the marketing order now in effect, Oregon and Washington handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable fresh Bartlett pears beginning on July 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with 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. Such 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 rule would increase the assessment rate established for the Committee for the 2003-2004 and subsequent fiscal periods, from $0.025 to $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears grown in the States of Oregon and Washington.
The Oregon and Washington fresh Bartlett pear marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are growers and handlers of Oregon or Washington fresh Bartlett pears. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2001-2002 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on May 29, 2003, and unanimously recommended 2003-2004 expenditures of $1,122,250 and an assessment rate of $0.335 per 44-pound standard box or container equivalent of fresh Bartlett pears. In comparison, last year's budgeted expenditures were $77,612. The assessment rate of $0.335 is $0.31 higher than the rate currently in
These market development projects were previously administered by the Oregon Bartlett Pear Commission and the Washington State Fruit Commission. However, following an eight-month series of industry meetings, both state commissions recommended that the federal Committee administer future Bartlett pear market development projects. Thus, with industry consensus in support of the action, the Committee, on May 29, 2003, unanimously recommended that it establish and administer future market development projects for the Bartlett pear industry.
The net effect to the Northwest Bartlett pear industry in transferring the market development projects from the State commissions to the Committee is negligible as indicated in the table below.
The major expenditures recommended by the Committee for the 2003-2004 year include $78,934 for expenses shared with Pear Bureau Northwest and the Winter Pear Committee (salaries, employee benefits, office rent, and similar administration expenses), $38,316 for unshared committee expenses (meetings, assessment collection fees paid to the Washington State Fruit Commission, fees paid to four grower/shipper organizations for collating information used in generating crop and quality reports, and contingency reserves), and $1,005,000 for market research and development expenses. Budgeted expenses for these items in 2002-2003 were $63,712, $13,900, and $0, respectively.
The assessment rate recommended by the Committee was determined by reviewing the historical market development expenses of other organizations and past expenses for the Committee. Commodity shipments for the 2003-2004 season are estimated at 3,350,000 standard boxes, which should provide $1,122,250 in assessment income. Income derived from handler assessments, along with miscellaneous income and funds from the Committee's authorized reserve, would be adequate to cover budgeted expenses. Funds in the reserve (currently $16,997.14) would be kept within the maximum permitted by the order of approximately one fiscal year's operational expenses (§ 931.42).
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2003-2004 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.
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 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 1,500 growers of fresh Bartlett pears in the production area and approximately 40 handlers subject to regulation under the marketing order. Small agricultural growers 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.
According to the
This rule would increase the assessment rate established for the Committee and collected from handlers for the 2003-2004 and subsequent fiscal periods from $0.025 to $0.335 per 44-pound standard box or container
The major expenditures recommended by the Committee for the 2003-2004 year include $78,934 for expenses shared with Pear Bureau Northwest and the Winter Pear Committee (salaries, employee benefits, office rent, and similar administration expenses), $38,316 for unshared committee expenses (meetings, assessment collection fees paid to the Washington State Fruit Commission, fees paid to four grower handler organizations for collating information used in generating crop and quality reports, and contingency reserves), and $1,005,000 for market research and development expenses. Budgeted expenses for these items in 2002-2003 were $63,712, $13,900, and $0, respectively.
The proposed increase in the assessment rate is necessary for the Committee to establish market research and development projects. These market development projects will be executed through an agreement with Pear Bureau Northwest, which also oversees the market development projects for the Winter Pear Control Committee, administering Marketing Order No. 927. The Bartlett pear projects for 2003-2004 include activities to enhance the consumption of pears in Latin America and South America, trade and consumer communications though website and newsletter releases, a domestic field staff program to distribute point of sale materials and conduct consumer samplings, and participation in food service and consumer shows to advance Bartletts as the first available USA pear variety. No paid advertising activities would be implemented.
These market development projects were previously administered by the Oregon Bartlett Pear Commission and the Washington State Fruit Commission. However, following an eight-month series of industry meetings, both state commissions recommended that the federal Committee administer future Bartlett pear market development projects. Thus, with industry consensus in support of the action, the Committee, on May 29, 2003, unanimously recommended that it establish and administer future market development projects for the Bartlett pear industry.
The net effect to the Northwest Bartlett pear industry in transferring the market development projects from the State commissions to the Committee is negligible as indicated in the table below.
A review of historical information and preliminary information pertaining to the upcoming season indicates that the grower price for the 2003-2004 season could range between $9.20 and $11.00 per standard box of fresh Bartlett pears. Therefore, the estimated assessment revenue for the 2003-2004 season as a percentage of total grower revenue could range between 3.6 and 3 percent.
This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to growers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Oregon and Washington fresh Bartlett pear industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 29, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Oregon or Washington fresh Bartlett pear 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.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2003-2004 fiscal period began on July 1, 2003, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable fresh Bartlett pears handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.
Marketing agreements, Pears, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 931 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 931 continues to read as follows:
7 U.S.C. 601-674.
2. Section 931.231 is revised to read as follows:
On and after July 1, 2003, an assessment rate of $0.335 per 44-pound standard box or container equivalent is established for fresh Bartlett pears grown in Oregon and Washington.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to all Boeing Model 747SP, 747SR, 747-100, -100B, -100B SUD, -200B, -200C, -200F, and -300 series airplanes. This proposal would require modification of the escape slide/raft pack assembly and cable release sliders. This action is necessary to prevent improper deployment of the escape slide/raft or blockage of the passenger/crew doors in the event of an emergency evacuation, which could result in injury to passengers or crewmembers. This action is intended to address the identified unsafe condition.
Comments must be received by October 27, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-213-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Keith Ladderud, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6435; fax (425) 917-6590.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-213-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-213-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports of improper escape slide/raft deployment and passenger/crew door blockage during slide deployment tests on certain Boeing Model 747 series airplanes. Subsequent investigation revealed that the cause of this improper deployment or door blockage was damaged pins of the slide pack cover, which could not be extracted. If the pins are not extracted, either the door will not fully open or the slide will not deploy.
We also received one report of high-deployment and non-deployment forces of the floor mounted escape slide of the upper deck during maintenance. Investigation revealed that the cable release slider did not travel enough to allow for easy extraction of the deployment cables, which can result in high-deployment forces. Further investigation revealed that the release pins can become snagged in the access hole of the outboard cover panel cone, preventing escape slide deployment.
Improper deployment of the escape slide/raft or blockage of the passenger/crew doors in the event of an emergency evacuation could result in injury to passengers or crewmembers.
We have reviewed and approved Boeing Special Attention Service Bulletin 747-25-3274, Revision 1, dated January 9, 2003, which describes procedures for modification of the escape slide/raft pack assembly. For Group 1 and 2 airplanes, the modification includes removing the slide packs and replacing the cover release pin cable assemblies with new assemblies containing high-strength pins, and removing the pulley guard bracket to prevent new pins from hanging on the pulley guard during slide pack release. For Group 3 through 15 airplanes, the modification includes removing the slide packs and replacing the cover release pin cable assemblies with new assemblies containing high-strength pins. For Groups 4, 6, 8, and 10 airplanes, the modification includes removing the cable guard brackets from the door 3 ramp packs.
We also have reviewed and approved Boeing Special Attention Service Bulletin 747-25-3307, dated November 21, 2002, which describes procedures for modification of the cable release sliders of the escape slide/raft pack assembly. The modification includes overhaul or replacement of the cable release sliders with new sliders and installation of washers on the outboard pack cover. This service bulletin is to be done prior to or concurrent with Service Bulletin 747-25-3274.
Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.
Although the service bulletins recommend accomplishment of the modifications at the earliest time when manpower and parts are available, or at the next scheduled slide overhaul/maintenance, respectively, we have determined that a specific compliance time is needed to ensure that the identified unsafe condition is addressed in a timely manner. In developing an appropriate compliance time for this proposed AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, and the average utilization of the affected fleet. Considering these factors, we find that a 36-month compliance time for completing the proposed actions is warranted, in that this represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.
There are approximately 592 airplanes of the affected design in the worldwide fleet. We estimate that 187 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 2 work hours per escape slide to accomplish the proposed modification of the escape slide/raft pack assembly, at an average labor rate of $65 per work hour. Required parts would cost between $13,980 and $48,940 per slide. Based on these figures, the cost impact of the modification of the escape slide/raft pack assembly proposed by this AD on U.S. operators is estimated to be between $14,110 and $49,070 per slide.
Should an operator be required to accomplish the overhaul of the cable release sliders, it would take approximately 2 work hours to accomplish the proposed overhaul, at an average labor rate of $65 per work hour. Required parts cost would be negligible. Based on these figures, the cost impact of the overhaul of the cable release sliders proposed by this AD on U.S. operators is estimated to be $130 per slider.
Should an operator be required to accomplish the replacement of the cable release sliders, it would take approximately 1 work hour to accomplish the proposed replacement, at an average labor rate of $65 per work hour. Required parts would cost approximately $2,940 per slider. Based on these figures, the cost impact of the replacement of the cable release sliders proposed by this AD on U.S. operators is estimated to be $3,005 per slider.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (d) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent improper deployment of the escape slide/raft or blockage of the passenger/crew doors in the event of an emergency evacuation, which could result in injury to passengers or crewmembers, accomplish the following:
(a) Within 36 months after the effective date of this AD: Modify the escape slide/raft pack assembly (includes removing the slide packs, replacing the cover release pin cable assemblies with new assemblies, and removing the pulley guard bracket, as applicable), per Boeing Special Attention Service Bulletin 747-25-3274, Revision 1, dated January 9, 2003.
(b) Prior to or concurrent with accomplishment of paragraph (a) of this AD:
(c) As of the effective date of this AD, no one may install, on any airplane, a pin cable assembly with a part number listed in the “Existing Part Number” column of the table in Appendix A of Boeing Special Attention Service Bulletin 747-25-3274, Revision 1, dated January 9, 2003.
(d) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(e) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Proposed rule; extension of comment period.
OSHA is extending the deadline for receipt of public comments on its proposed rule “Assigned Protection Factors” to October 2, 2003. This action is in response to interested parties who have requested the additional time.
Comments and data must be submitted by October 2, 2003. Comments submitted by mail must be postmarked no later than October 2, 2003.
For technical inquiries, contact Mr. John E. Steelnack, Directorate of Standards and Guidance, Room N-3718, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210; telephone (202) 693-2289 or fax (202) 693-1678. For additional copies of this
OSHA published the final, revised Respiratory Protection Standard, 29 CFR 1910.134, on January 8, 1998 (63 FR 1152). The standard contains worksite-specific requirements for program administration, procedures for respirator selection, employee training, fit testing, medical evaluation, respirator use, and other provisions. However, OSHA reserved the sections of the final standard related to assigned protection factors (APFs) and maximum use concentration (MUC) pending further rulemaking (
John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210, directed the preparation of this notice. It is issued under Sections 4, 6(b), 8(c), and 8(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act) (40 U.S.C. 333); section 41, the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Secretary of Labor's Order No. 5-2002 (67 FR 65008); and 29 CFR part 1911.
Federal Communications Commission.
Proposed rule; correction.
This document corrects an error in the
Comments are due on October 2, 2003 and Reply Comments are due on November 3, 2003.
Jeremy Miller, Attorney-Advisor, Competition Policy Division, Wireline Competition Bureau, (202) 418-1580.
In rule FR Doc. 03-22194 published September 2, 2003 (68 FR 52307) make the following correction.
1. On page 52307, in the first column, in the dates section remove “Reply Comments are due October 23, 2003” and add “Reply Comments are due November 3, 2003” in its place.
Cost Accounting Standards Board, Office of Federal Procurement Policy, OMB.
Notice of withdrawal of Advance Notice of Proposed Rulemaking.
The Office of Federal Procurement Policy (OFPP), Cost Accounting Standards (CAS) Board, is providing public notification of the decision to discontinue the development of a Cost Accounting Standard (CAS) addressing the recognition of costs of post-retirement benefit plans under government cost-based contracts and subcontracts.
Robert Burton, Office of Federal Procurement Policy (telephone: 202-395-3302).
The Cost Accounting Standards Board's rules, regulations and Standards are codified at 48 CFR Chapter 99. The Office of Federal Procurement Policy Act, 41 U.S.C. 422(g)(1), requires the Board, prior to the establishment of any new or revised Cost Accounting Standard, to complete a prescribed rulemaking process. The process generally consists of the following four steps:
1. Consult with interested persons concerning the advantages, disadvantages, and improvements anticipated in the pricing and administration of government contracts as a result of the adoption of a proposed Standard.
2. Promulgate an Advance Notice of Proposed Rulemaking (ANPRM).
3. Promulgate a Notice of Proposed Rulemaking (NPRM).
4. Promulgate a Final Rule.
This notice announces the discontinuation of a case after completing steps one and two of the four-step process in accordance with the requirements of 41 U.S.C. 422(g)(1)(B) and (C).
Post-retirement benefit plans have existed for many years, but received little attention until the Financial Accounting Standards Board (FASB) examined the potential liabilities and costs of these plans and issued Statement No. 106, “Employers’ Accounting for Post-Retirement Benefits Other Than Pensions” (SFAS 106), in December of 1990. In response to numerous public comments recommending that the CAS Board establish a case concerning the measurement, assignment, and allocation of the costs of post-retirement benefit plans, at a February 24, 1995 meeting, the CAS Board directed the staff to begin work on a Staff Discussion Paper (SDP).
On September 20, 1996, the Board published an SDP, “Post-Retirement Benefit Plans Other Than Pension Plans Sponsored by Government Contractors' (61 FR 49533), identifying the cost accounting issues related to post-retirement benefit plans. On January 12, 1999, the Board sent a letter to all the respondents to the SDP. This letter was also made widely available for public comment on February 18, 1999 (64 FR 8141).
The Board published an ANPRM (65 FR 59503), “Accounting for the Costs of Post-Retirement Benefit Plans Sponsored by Government Contractors,” on October 5, 2000.
The Board received twenty-three (23) sets of public comments in response to the ANPRM. Most respondents believed that accrual accounting following the provisions of SFAS 106 was the most appropriate basis for measuring and assigning the costs of a post-retirement benefit plan that created a firm liability. However, many respondents believed that the imposition of any nonforfeitability criteria, as proposed, could lock a contractor into providing explicit benefits with no ability to control the employer-paid portion of the cost or to switch to alternative benefit delivery arrangements. Moreover, the continuing high level of medical inflation coupled with various economic factors, and global competition, raises the question whether any contractor could risk the adverse effects of providing any level of nonforfeitable benefits. The argument has been made that the only prudent way of providing some assurance that some level of benefit will be available in the future, is for a contractor to currently fund the accrued cost as permitted by existing procurement regulations. Many commenters did not believe the Board should proceed with this project.
Subsequent to the publication of the ANPRM, the General Accounting Office (GAO) issued a report to the Chairman, Committee on Health, Education, Labor, and Pensions, U.S. Senate, entitled “RETIREE HEALTH BENEFITS—Employer-Sponsored Benefits May Be Vulnerable to Further Erosion” (GAO-01-374) in May 2001. The GAO summarized its findings as follows:
Despite a sustained strong economy and several years of relatively low rates of increase in health insurance premiums, the decline in the availability of employer-sponsored retiree health benefits has not reversed since 1997—the last year for which we had reported previously—and several indicators suggest that there may be further erosion in these benefits. Employer benefit consultants we contacted generally indicated that retiree health benefits were continuing to decline. Two widely cited employer benefit surveys, however, provide conflicting data as to whether the proportion of employers sponsoring retiree health insurance remained stable or declined slightly from 1997 through 2000. In some cases, employers provide retiree health benefits to current retirees or long-term employees, but newly hired employees are not eligible. To date, however, the percentage of retirees with employer-sponsored coverage has remained relatively stable over the past several years, with about 37 percent of early retirees and 26 percent of Medicare-eligible retirees receiving retiree health coverage from a former employer. This stability may also be linked to employers' tendency to reduce coverage for future rather than current retirees. In some cases, employers that continue to offer retiree health benefits have reduced the terms of these benefits by increasing the share of premiums that retirees pay for health benefits, increasing co-payments and
Several current and developing market, legal, and demographic factors may contribute to a further decline in employer-sponsored retiree health benefits. These factors include—
• A resumption of health insurance premiums rising at a rate faster than general inflation;
• Proposed changes in Medicare coverage, such as adding a new prescription drug benefit, that could affect the costs and design of employers supplemental health benefits for Medicare-eligible retirees;
• A recent circuit court ruling allowing claims of violations of federal age discrimination law when employers make distinctions in health benefits they offer retirees on the basis of Medicare eligibility; and
• The movement of the baby boom generation into retirement age, leading some employers to have a growing number of retirees relative to active workers.
Retirees whose former employers reduce or eliminate health benefits often face limited or unaffordable alternatives to obtaining coverage. Retirees may purchase coverage on their own—either individual insurance policies for these under age 65 or Medicare supplemental plans for those age 65 or older. However, despite federal laws that guarantee access to some individual insurance policies to certain individuals who lose group coverage, retirees' ages and often poorer health status combine to make individually purchased health insurance expensive. For example, the majority of states do not restrict the price of premiums that carriers may charge individuals who purchase individual insurance policies. Thus, carriers in these states may charge 60-year-old males a monthly premium close to 4 times higher than what they charge 30-year-old males, and there may be an even bigger difference if the older individual is not healthy. Similarly, the number of Medicare supplemental plans that federal law guarantees to retirees over 65 whose employers eliminate coverage is limited, and they do not include coverage for benefits such as prescription drugs. Thus, retirees seeking alternative coverage could receive less comprehensive coverage and pay more for it than they had previously.
The findings of the GAO report were supported and expanded upon by the Employee Benefit Research Institute (EBRI) Issue Brief Number 236, “Retiree Health Benefits: Trends and Outlook,” authored by Paul Fronstin in August 2001. The Issue Brief reported that employers had taken various actions in response to SFAS 106, including placing caps on the employers' expenditures, changing age and service requirements, and moving to “defined contribution” health benefits. Some employers dropped all retiree health benefits for future retirees and other employers dropped benefits for current retirees' coverage, though this action occurred less often than did other changes. Regarding future trends, EBRI found the following:
While the changes employers have made to retiree health benefits do not appear to be having much impact on current retirees, they are likely to be felt most by future retirees who have not yet or may never become eligible for retiree health benefits because the courts have ruled that an employer has a right to terminate or amend retiree health benefits only if it has proved that such a right has been reserved or stated in specific language and on a widely known basis.
The EBRI Issue Brief also remarked that many early retirees, ages 55-64, who were not covered by employment-based retiree health insurance, had difficulty finding affordable insurance. This observation helped to explain the report's finding that—
By law, employers are under no obligation to provide retiree health benefits, except to current retirees who can prove that they were previously promised a specific benefit. Between 1994 and 1999, retirees ages 55-64 experienced an increase in the likelihood of being uninsured, but, as mentioned above, the percentage of retirees covered by health benefits through a former employer or union was unchanged (although as is shown below, current retirees have seen increases in their share of health insurance premiums). In addition, the likelihood of an early retiree having health insurance through his or her own spouse increased. An erosion of public health insurance and health insurance purchased directly from an insurer accounts for the increase in the uninsured.
The courts continue to find that an employer has a right to terminate or amend retiree health benefits if such a right has been reserved or stated in specific language and on a widely known basis. In
A recent study by a joint project of the Kaiser Family Foundation, the Commonwealth Fund, and the Health Research & Education Trust found not only that the number of employers who sponsor retiree health plans is continuing to decline, but that those plan sponsors who are continuing their retiree health plans are considering shifting more of the cost to the retirees. Mark A. Hoffmann, writing for “Business Insurance” on April 17, 2002, reported the following:
The percentage of employers offering retiree health care coverage is continuing to drop, according to a survey released earlier this week.
Only 34% of U.S. companies with 200 or more employees offered health care coverage to Medicare-eligible retirees in 2001, down from 37% in 2000 and 41% in 1999, according to the study, titled “Erosion of Private Health Care Insurance Coverage for Retirees.”
The study. . . also found that Medicare-age retirees, on average, pay 26% of the total cost of their health care premiums, compared with 13% paid by active workers in the same firms.
“By 2001, numerous warning signs indicate that, although few employers are dropping coverage altogether, many say they plan to make changes that shift a greater share of costs to retirees, by raising premium contributions and imposing greater cost-sharing requirements for benefits such as prescription drugs,” the report states.
As did the EBRI Issue Brief, the study found that while retiree health coverage will probably continue to be provided for current retirees, the prospect of retiree health coverage for future retirees is less certain. The survey made the following observation:
Yet, just 4% of companies offering retiree coverage say they are likely to eliminate that coverage entirely in the next two years. Seven percent of firms say it's likely they will eliminate retiree benefits for new employees or for existing workers who have not yet retired.
However, while no jumbo firms indicate they would eliminate retiree health coverage entirely, 11% say they are likely to eliminate them for new employees or existing workers who have not yet retired.
The staff reviewed copies of post-retirement benefit documents and plan descriptions of several defense contractors. At the request of the CAS Board staff, the Defense Contract Audit Agency (DCAA) provided these copies from their contract files after obtaining permission from the contractors to release these proprietary materials for review by the Board and its staff in their deliberation on this case. While the details and the benefits provided by these plans were quite varied among the plan documents, the provisions of these plans were consistent with the general description of post-retirement benefit
There have also been a number of news stories in the print and broadcast media concerning retirees from large private companies who have lost their employer-based retiree health insurance and have been unable to purchase health insurance coverage on their own due to pre-existing conditions or cost. As the general public has become increasing aware of this issue, some members of Congress have begun considering how the protections of the Employee Retirement Income Security Act of 1974 (ERISA) or other statutes might be extended to protect these retirees.
In response to a request from Representative Carolyn McCarthy, the GAO did a survey of three major defense contractors. In a letter to the Congresswoman dated February 27, 2003, which reported on “Retiree Health Benefits at Selected Government Contractors,” the GAO wrote:
DCMA and DCAA closely monitored postretirement health benefits to ensure charges to the government were made in compliance with federal regulations. As part of their oversight efforts, the two agencies performed risk assessments and conducted regular reviews of the contractors' actual and projected postretirement health benefits costs and the assumptions underlying future projections. For the 2 years covered in our review, neither DCAA nor DCMA found any significant problems with the contractors' actual or projected postretirement health benefit costs. For example, DCAA took no exceptions to the projected costs reflected in the contractors' pricing proposals and took exception to less than 1 percent of the $756 million in postretirement health benefits costs incurred by the contractors over the 2-year period.
Because contractors need the flexibility to modify, reduce, or even eliminate post-retirement benefits in the future in response to the pressures of medical inflation, an aging population, and global competition, the Board finds that the liability for post-retirement benefits cannot be made sufficiently firm to be recognized for government cost accounting purposes without undue financial risk to both the contractor and the government. Therefore, the Board has decided to discontinue further development of the rule proposed in the ANPRM and the project (CASB Docket No. 96-02A) to develop a separate Cost Accounting Standard (CAS) that addresses the recognition of costs of post-retirement benefit plans under government cost-based contracts and subcontracts.
Research and Special Programs Administration (RSPA), DOT.
Notice of proposed rulemaking (NPRM).
RSPA proposes to amend requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) pertaining to aluminum cylinders manufactured using aluminum alloy 6351-T6. The purpose of this rulemaking initiative is to enhance safety, minimize the potential for personal injury and property damage during the cylinder filling process, and adopt a standard for early detection of sustained load cracking (SLC) to reduce the risk of a cylinder rupture.
Comments must be received by November 10, 2003.
You may submit comments by any of the following methods:
• Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management System; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: To the Docket Management System; Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9:00 am and 5:00 pm, Monday through Friday, except Federal Holidays.
Mark Toughiry, Office of Hazardous Materials Technology, (202) 366-4545, or Charles E. Betts, Office of Hazardous Materials Standards, (202) 366-8553; RSPA, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590-0001.
Cylinders made of aluminum alloy 6351-T6 are known to be susceptible to sustained load cracking (SLC) in the neck and shoulder area of the cylinder. The majority of the SLC-related ruptures have occurred in self-contained underwater breathing apparatus (SCUBA), self-contained breathing apparatus (SCBA), and oxygen services. Since 1994, the Research and Special Programs Administration (RSPA, we) has been notified of twelve suspected SLC ruptures of cylinders manufactured of aluminum alloy 6351-T6. Five of the twelve ruptures resulted in serious injuries. RSPA's review of manufacturers' data revealed that there have been several thousand cylinders
The primary domestic manufacturers of DOT 3AL cylinders currently in service are Luxfer USA; Walter Kidde Co.; Cliff Impact Division of Parker Hannifin Corporation; and Catalina Cylinders. The majority of the cylinders are being used in six major services: (1) SCUBA, (2) SCBA, (3) carbon dioxide, (4) oxygen, (5) industrial gases, and (6) fire extinguishers.
Cylinders manufactured of aluminum alloy 6351-T6 prior to July 1990 include seamless aluminum cylinders marked “DOT 3AL”, including those marked with “DOT 3AL” above or near one of the following exemption or special permit numbers: 6498, 7042, 8107, 8364, and 8422. In addition, unless determined otherwise, affected individuals should assume that a DOT 3AL or DOT-E 7235 cylinder manufactured outside the United States is constructed of aluminum alloy 6351-T6.
On August 8, 2002, we published a final rule (Docket HM-220D, 67 FR 51626) that amended the requirements of the HMR applicable to the maintenance, requalification, repair, and use of DOT specification cylinders. In that final rule, we added the following amendments pertaining to DOT specification cylinders made with aluminum alloy 6351-T6:
• We removed the authorization for the manufacture of DOT specification cylinders from aluminum alloy 6351-T6 because cylinders manufactured with this aluminum alloy have a greater risk of failure than other aluminum cylinders.
• We prohibited these cylinders for Hazard Zone A materials effective on October 1, 2002. After that date, cylinders made of aluminum alloy 6351-T6 may not be filled and offered for transportation in toxic inhalation hazard service.
• We prohibited the use of cylinders manufactured of aluminum alloy 6351-T6 for gases having pyrophoric properties.
• We required a DOT specification or exemption cylinder made of aluminum allow 6351-T6 to be inspected for evidence of sustained load cracking in the neck and shoulder area.
As stated earlier, the majority of the SLC-related ruptures occurred in SCUBA, SCBA and oxygen services. Additionally, for these services, the probability of cracking increases due to the increased frequency with which cylinders in these services are filled. We recognize that cylinders used in beverage service are also filled on a frequent basis. However, beverage service cylinders typically are filled to lower pressures than cylinders used in SCUBA, SCBA, and oxygen services, thereby reducing the stress levels to which beverage service cylinders are subjected. Moreover, in SCUBA and SCBA services, the cylinder is attached to the back of a diver or firefighter, which substantially increases the risk of injury or fatality in the event of a rupture. Similarly, an oxygen cylinder may be placed close to a patient in the hospital or home. SLC could also result in an oxygen leak that may cause an explosion. Therefore, because of the higher risk in SCUBA, SCBA and oxygen services, this rulemaking (HM-220F) proposes to adopt a standard for early detection of SLC to reduce the risk of a cylinder rupture.
We performed an analysis of costs associated with operating cylinders manufactured of aluminum alloy 6351-T6. The economic evaluation considered and compared the costs of three possible alternatives: (1) Leaving the cylinder in service without taking any additional measures to reduce the risk, (2) removing all cylinders made of aluminum alloy 6351-T6 from service, or (3) performing a non-destructive examination (NDE) at the time of the cylinder's periodic requalification and requiring additional operational controls (OC) during the cylinder filling process. Estimating the societal cost of injuries or fatalities that would otherwise be avoided if SLC were eliminated is complicated. The uncertainties due to the unpredictability at which ruptures occur and the likelihood that aging cylinders may be progressively more prone to SLC makes option three to most prudent of the three options. It also addresses a known safety problem without imposing excessive costs.
DOT 3AL cylinders must be requalified every five years (twelve years for fire extinguishers) in accordance with § 180.205 of the HMR. The requalification performed under § 180.205 includes a visual inspection (internal and external) and a volumetric expansion test. The requalification does not include a specific NDE of the cylinder neck or crown areas for detection of SLC. However, we understand that in addition to the visual inspection and volumetric expansion test, many users and requalifiers are currently performing an eddy current examination. Approximately 2,000 eddy current devices have been purchased by various cylinder requalifiers to examine aluminum cylinders for SLC. Cylinder manufacturers report that a large number of affected cylinders have been removed from service because of flaws discovered during eddy current examinations.
We evaluated three NDE methods—visual examination (VT), eddy current examination (ET), and ultrasonic examination (UT)—to detect a critical-size crack. A cylinder with a critical-size crack must be removed from service upon detection of the crack. Under the direction of RSPA, Texas Research Institute (TRI) evaluated these three NDE (VT, ET, UT) methods by performing blind examinations that were applied by individuals of varying skill levels (See the Nondestructive Inspection of High Pressure Aluminum Gas Cylinder, Final Report, dated September 2000, at
In this NPRM, we propose to require cylinders manufactured of aluminum alloy 6351-T6 used in SCUBA (diving), SCBA (firefighting), and oxygen service
Although we believe that the twelve reported SLC suspected ruptures under-represent the extent of the SLC issue, we do not have sufficient data to determine whether the SLC related ruptures extend beyond those services discussed above. Therefore, we are requesting additional information from manufactures and users who are aware of the rupture of any DOT 3AL cylinder or any other cylinder manufactured from aluminum alloy 6351-T6, whether the incident was domestic or foreign, to submit the information in their comments to this rulemaking. More broadly, we invite commenters to address the issue of whether the new inspection requirements proposed in this NPRM should apply to cylinders manufactured of aluminum alloy 6351-T6 and used in services other than SCUBA, SCBA, or oxygen.
You should identify the docket number RSPA-03-14405 (HM-220F) at the beginning of your comments. You should submit two copies of your comments, if you submit them by mail. If you wish to receive confirmation that RSPA received your comments, you should include a self-addressed stamped postcard. Internet users may access all comments received by DOT at
As a result of RSPA's proposal to require cylinders manufactured of aluminum alloy 6351-T6 used in SCUBA, SCBA, and oxygen service to undergo an NDE, we are proposing to revise the incorporation by reference entry CGA Pamphlet C-6.1, “Standards for Visual Inspection of High Pressure Aluminum Compressed Gas Cylinders, 1995,” under the Compressed Gas Association, Inc., to incorporate by reference the 2002 edition of this pamphlet. The 2002 edition of the standard has provisions discussing cleaning methods that may result in the removal of cylinder wall material. It also contains a new requirement that all aluminum cylinders be internally inspected for cracks in the neck region. Persons who may be affected by these changes should review the standard to determine any potential impacts on their operations.
We are proposing to revise this section by adding a new paragraph (e) to require that operational controls must be in place during the filling process, for cylinders manufactured of aluminum alloy 6351-T6. The operational controls will reduce the risk of injury and property damage during the filling process.
We are proposing to revise in paragraph (a), the entry for the DOT 3AL cylinder in the “Requalification of Cylinders” table to add a reference to the new paragraph (m). In addition, we are proposing to add a new paragraph (m) to include a non-destructive examination for cylinders manufactured of aluminum alloy 6351-T6. The non-destructive examination will be used to detect sustained load cracking in the neck and shoulder area.
We are proposing to revise paragraph (d) and to add a new paragraph (f)(8) to specify the requalification marking requirements for those aluminum cylinders that successfully pass the combined eddy current examination and visual inspection.
This proposed rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. The proposed rule is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. A regulatory analysis is available for review in the docket.
The compliance costs associated with this rule are minimal. The regulatory analysis revealed the increased cost for performing an NDE and OC to be small compared to the cost and safety risks of “doing nothing,” and it is significantly less than the cost of “removing all cylinders from service.” The economic evaluation data were based on information obtained from cylinder manufacturers, industrial gas companies, cylinder inspectors, and on metallurgical evaluation of the ruptured cylinders. We determined that the removal of cylinders manufactured of aluminum alloy 6351-T6 will result in a significant economic impact to cylinder owners and may cause a serious shortage of breathing air cylinders used in fire fighting and medical applications. Therefore, based on the risk assessment and regulatory analysis, we conclude that a requirement to perform an eddy current examination combined with a visual inspection at the required five-year requalification period is the best alternative. Since the NDE would take place at the time of the currently required five-year requalification period, the cost would be reduced substantially. We estimate the cost of volumetric expansion test and internal visual inspection that is required under the current regulation to be $5.00 per cylinder every five years. We estimate that the eddy current examination combined with the current volumetric expansion test and visual inspection to be $7.25 per cylinder every five years. The estimated $7.25 per cylinder includes the initial start-up cost (
While researching a viable NDE method that could accurately detect SLC, we made a significant effort to reduce the risk of injury by educating cylinder users regarding the risk of using cylinders manufactured of aluminum alloy 6351-T6. As a result of this effort, we published the following safety advisory notices in the
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule would preempt State, local and Indian tribe requirements, but does not propose any regulation that has direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous material;
(2) the packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(3) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(4) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or
(5) the design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.
This proposed rule covers items 2 and 5 and would preempt any State, local, or Indian tribe requirements not meeting the “substantively the same” standard.
Federal hazardous materials transportation law provides at § 5125(b)(2) that, if the Secretary of Transportation issues a regulation concerning any of the covered subjects, the Secretary must determine and publish in the
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications, does not impose substantial direct compliance costs, and is not required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.
This proposed rule may result in a modest increase in annual burden and costs based on a new information collection requirement. These proposals regarding the shipment of aluminum cylinders which result in a new information collection requirement will be submitted to OMB for review and approval. RSPA currently has an approved information collection under OMB Control No. 2137-0022, “Testing, Inspection, and Marking Requirements for Cylinders.”
Section 1320.8(d), Title 5, Code of Federal Regulations requires that RSPA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies a new information collection request that RSPA will submit to OMB for approval based on the requirements in this proposed rule. RSPA has developed burden estimates to reflect changes in this proposed rule. RSPA estimates that the total information collection and recordkeeping burden as proposed in this rule would be as follows:
RSPA specifically requests comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these requirements for approval under this proposed rule.
Direct your requests for a copy of the information collection to Deborah Boothe or T. Glenn Foster, Office of Hazardous Materials Standards (DHM-10), Research and Special Programs Administration, Room 8102, 400 Seventh Street, SW., Washington, DC 20590-0001, Telephone (202) 366-8553.
Address written comments to the Dockets Unit as identified in the
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.
The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. There are no significant environmental impacts associated with this proposed rule. RSPA proposes to amend requirements in the HMR pertaining to DOT 3AL aluminum cylinders. The purpose of this rulemaking initiative is to minimize personal injury during the cylinder filling process and to adopt a standard for early detection of sustained load cracking in order to reduce the risk of a cylinder rupture. Adopting a standard for early detection of sustained load cracking in order to reduce the risk of a cylinder rupture has no potential for environmental damage or contamination.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, we propose to amend 49 CFR Chapter I, Subchapter C, as follows:
1. The authority citation for part 171 continues to read as follows:
49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In § 171.7, in the table in paragraph (a)(3), the entry for pamphlet C-6.1 under the Compressed Gas Association, Inc., is revised to read as follows:
(a) * * *
(3)
3. The authority citation for part 173 continues to read as follows:
49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53
4. In § 173.302, paragraph (e) is added to read as follows:
(e)
5. The authority citation for part 180 continues to read as follows:
49 U.S.C. 5101-5127; 49 CFR 1.53.
6. In § 180.209 in paragraph (a), in the “Requalification of Cylinders table” the entry “DOT 3AL” is revised, and a new paragraph (m) is added to read as follows:
(a) * * *
(m)
7. In § 180.213, paragraph (d) is revised and a new paragraph (f)(8) is added to read as follows:
(d)
(f) * * *
(8) For designation of the eddy current examination combined with a visual inspection, the marking is as illustrated in paragraph (d) of this section, except that the “X” is replaced with the letters “VE”.
8. In Part 180, Appendix C is added to read as follows:
1. This examination procedure is designed to detect critical size cracks in cylinders made of aluminum alloy 6351-T6.
2.
3.
4.
(i) Screw reference ring onto the probe until the base of the reference ring is flush with the probe bottom, then back off two turns.
(ii) Warm the equipment for at least 20 minutes.
(iii) Set up the system between 150-215 kHz.
(iv) Locate the line
(v) Rotate the reference ring counterclockwise and observe the spike signal on the screen. Adjust the gain (using gain control) until the spike peaks to
(vi) When spike signals break the centerline the threshold light must come on.
5.
At a minimum, the written examination procedure for performing the eddy current must include the following instructions:
(i) Remove the probe from the reference ring and screw probe clockwise half-way into cylinder's neck and press the sweep (
(ii) Continue rotating the probe clockwise until the threshold line moves off top of the screen, indicating probe is inside shoulder area (probe is in air).
(iii) Rotate probe counterclockwise towards the outlet of the cylinder until the threshold line appears on the screen indicating the probe is in the cylinder's neck.
(iv) Press the sweep (
(v) Watch for spike signals indicating cracks. Mark positions with a grease pencil. When the spike occurs rotate the probe 360 degrees.
(vi) Check for successive indications at same angle indicating multiple cracks. Two successive spikes that break the threshold at the same angle indicate a two thread crack. A two thread crack is the rejection criteria.
(vii) Perform the visual inspection for confirmation.
6.
Records of eddy current inspection shall contain the following information:
(i) Equipment manufacturer, model number and serial number.
(ii) Probe description and unique identification (
7.
Daily records of eddy current examinations must be maintained by the person who performs the requalification until either the expiration of the requalification period or until the cylinder is again requalified, whichever occurs first. These records must be made available for inspection by a representative of the Department on request. Eddy current examination records shall contain the following information:
(i) Specification of each standard reference ring used to perform the eddy current examination.
(ii) DOT specification or exemption number, manufacturer's name or symbol, owner's name or symbol and date of manufacture.
(iii) Name of test operator performing the eddy current examination.
(iv) Date of eddy current examination.
(v) Location and type of defect on the cylinder crown or the threaded neck (
(vi) Acceptance/rejection results (
(vii) Legible identification of test operator.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose to revise our regulations pertaining to enhancement of survival permits issued under the Endangered Species Act. The purpose of the proposed revisions is to revise the current implementing regulations for permits associated with Safe Harbor Agreements and Candidate Conservation Agreements with Assurances. These revisions will make Safe Harbor Agreements and Candidate Conservation Agreements with Assurances easier to understand and implement.
Comments from all interested parties must be received by November 10, 2003.
Comments or materials concerning the proposed rule should be sent to Division of Conservation and Classification, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203 (Telephone 703/358-2171, Facsimile 703/358-1735). Comments and materials received on the proposed rule will be available for inspection, by appointment, during normal business hours, at the above address.
Chris Nolin, Chief, Division of Conservation and Classification, Fish and Wildlife Service (Telephone 703/358-2171, Facsimile 703/358-1735).
The Endangered Species Act (Act) (16 U.S.C. 1531
In June of 1999, we issued two policies and revised our regulations to add two categories of permits to enhance the propagation or survival of listed, proposed, candidate, and other at-risk species. One category, called “permits for the enhancement of survival through Safe Harbor Agreements,” is detailed at §§ 17.22(c) and 17.32(c), and in the Safe Harbor Policy (64 FR 32717). The other category, called “permits for the enhancement of survival through Candidate Conservation Agreements with Assurances,” is detailed at §§ 17.22(d) and 17.32(d), and in the Candidate Conservation Agreements with Assurances Policy (64 FR 32726).
The purpose of the Safe Harbor Program is to promote voluntary management for listed species on non-Federal property while giving assurances to participating landowners that no additional future regulatory restrictions will be imposed. In return for the participant's efforts, the Service will authorize incidental take through an associated enhancement of survival permit issued under section (10)(a)(1)(A) of the Act. In issuing such a permit, we expect a net conservation benefit will be accrued for the covered species through implementation of the Safe Harbor Agreement. The permit would allow participants to take individual listed animals to return
Candidate Conservation Agreements with Assurances are voluntary agreements between us and non-Federal landowners to benefit proposed species, candidate species, and species likely to become candidates in the near future. Candidate Conservation Agreements with Assurances provide cooperators, who agree to manage their lands or waters in a manner that removes threats to at-risk species, with assurances that their conservation efforts will not result in future regulatory obligations beyond those they agreed to at the time they entered into the Agreement. In return for the participant's proactive management, we provide an enhancement of survival permit under section 10(a)(1)(A) of the Act, which, if the species were to become listed, would authorize take of individuals or the modification of habitat conditions to the levels specified in the Agreement. Our goal is that the benefits of the management activities included in the Candidate Conservation Agreement with Assurances, when combined with those benefits that would be achieved if the activities were also implemented on other necessary properties, would preclude or remove the need to list the covered species.
The objective of the proposed revisions to the Safe Harbor Agreement and Candidate Conservation Agreements with Assurances regulations is to rectify inconsistencies between the policies and their respective implementing regulations. In addition, these revisions will correct drafting errors in the regulations overlooked when the Safe Harbor and Candidate Conservation Agreements with Assurances regulations were published in 1999. Lastly, experience gained since 1999, when the policies and regulations were finalized, has shown the need to clarify ambiguities in the regulations to eliminate confusion.
The implementing regulations at § 13.25(b), which pertain to the transfer of permits to successors in interest, are inconsistent with the terms of the Safe Harbor and Candidate Conservation Agreements with Assurances policies. Part 11 of the Safe Harbor Policy and Part 10 of the Candidate Conservation Agreements with Assurances Policy require the original landowner only to notify the Service of his or her intent to transfer the property. That notification allows the Service to contact the new owner, who may, under the policies, either “agree to continue the original Agreement, or * * * enter into a new Agreement.” The current regulations, however, create uncertainty as to the ability of successors in interest to assume the rights and responsibilities of the original Agreement. The regulations require the original landowner and the proposed transferee to make a “joint submission” prior to the transfer. This joint submission must convince us that the proposed transferee meets a number of requirements that the original permit holder did not have to meet to get the original permit. Specifically, the regulations require that the proposed transferee provide “adequate written assurances” that it will “provide sufficient funding for the conservation plan” and implement any “outstanding minimization and mitigation requirements.” These requirements apply to and are appropriate for section 10(a)(1)(B) incidental take permits, but are not requirements for section 10(a)(1)(A) enhancement of survival permits. Accordingly, we propose to revise the regulations to make the permit transfer provisions consistent with the Safe Harbor and Candidate Conservation Agreements with Assurances policies by allowing a permit to be transferred as long as the new owner agrees to become a party to the original agreement and permit.
The Safe Harbor and Candidate Conservation Agreements with Assurances policies and implementing regulations at §§ 17.22(c)(1) and 17.32(c)(1), and §§ 17.22(d)(1) and 17.32(d)(1) indicate that Safe Harbor and Candidate Conservation Agreements with Assurances applicants should be property owners. But they refer to property owners in several different ways (
The following proposed revision applies to Safe Harbor Agreement regulations only. Currently, both the Safe Harbor Policy and the Safe Harbor implementing regulations at §§ 17.22(c)(1)(ii) and 17.32(c)(1)(ii) require a permit applicant to include in his or her application a description of the activities for which the applicant requests incidental take authority. This requirement was unclear on two points. First, the regulation did not acknowledge that there are two broad categories of incidental take that may occur under a Safe Harbor Agreement. One category includes the incidental take that results from implementation of management activities on the covered property, such as from periodic prescribed burning to sustain high-quality habitat for the species. The other category includes incidental take that would result if the property were returned to baseline conditions, such as from removal of the vegetation planted to enhance or restore habitat. We are proposing new language that recognizes
The following proposed revision applies to Safe Harbor Agreement regulations only. The issuance criteria in the regulations at §§ 17.22(c)(2)(ii) and 17.32(c)(2)(ii) provide that the Director may issue a permit if he or she finds that the Agreement “will” provide a net conservation benefit to the covered species. This may be read to suggest that the Director must determine with complete certainty that a net conservation benefit will occur before a permit can be issued. This unrealistic standard is not the intent of either the Safe Harbor Policy or the existing rule. As indicated in the background statement to the Final Safe Harbor Policy, the net conservation benefits “should be reasonably expected to occur during the Agreement.” 64 FR 32731 (“Revisions to the Draft Policy”). Although the Policy states in Part 4 that the Director must find that there will be a net conservation benefit, it indicates that this finding is to describe the “
The current Safe Harbor and Candidate Conservation Agreements with Assurances regulations, at §§ 17.22(c)(3)(ii) and 17.32(c)(3)(ii) and §§ 17.22(d)(3)(ii) and 17.32(d)(3)(ii) respectively, require a property owner to notify us at least 30 days in advance, but preferably as far in advance as possible, of when he or she expects to incidentally take any species covered under the permit. Notification provides us with an opportunity to relocate affected individuals of the species if possible and appropriate, or to implement other conservation options that may be available to us, and with the consent of the landowner. The notification requirement is often a desirable feature of a Safe Harbor Agreement or a Candidate Conservation Agreement with Assurances. For example, in the Safe Harbor Agreement with Environmental Defense, the Cooperator agrees to notify Environmental Defense and the Fish and Wildlife Service local office not less than 60 days prior to any activity that will take the property back to baseline conditions to allow us to rescue any black-capped vireos or golden-cheeked warblers, if possible and appropriate. However, prior notice before engaging in activities that result in take is not always appropriate based on the biology of the species or the covered activities. For example, some species may not be easily captured or may not be able to survive if transplanted to another site, such as larvae or eggs of certain smaller species of butterfly. Thus, we would not be able to rescue the individuals prior to the authorized incidental taking and advanced notice of incidental taking in order to rescue the butterflies may not be appropriate. Emergency situations would not be appropriate for advanced notification as well. For example, if habitat within a Safe Harbor Agreement for the red-cockaded woodpecker were infested by pine beetle, the trees must be harvested quickly to halt the infestation. In this situation, a 60-day advanced notice would be inappropriate and shortened notice may not be sufficient time to properly capture the red-cockaded woodpeckers. Advanced notification is appropriate when such notification allows for sufficient time to ameliorate the immediate effect of the property returning to baseline conditions. The policy states “If appropriate, incorporate a notification requirement to provide the Services or appropriate State agencies with reasonable opportunity to rescue individuals of a covered species * * *.” Both the Service and the property owner will determine if the Safe Harbor Agreement will include an advanced notification requirement. Therefore, instead of requiring notification from the permittee, we propose to revise the regulations to state that, “when appropriate,” notification of at least 30 days is to be given in advance of when the permittee expects to incidentally take any listed species covered under the permit.
The existing Safe Harbor regulations state that “If additional conservation and mitigation measures are deemed necessary, the Director may require additional measures of the permittee, but only if such measures are limited to modifications within conserved habitat areas, if any * * *” (§§ 17.22(c)(5)(ii) and 17.32(c)(5)(ii)). We propose to remove the references to additional mitigation measures and to “conserved habitat areas.” Unlike the requirements for Habitat Conservation Plan permits issued under 10(a)(1)(B), there are no mitigation requirements in the Safe Harbor Policy. Therefore, it is not necessary or appropriate to authorize the imposition of “additional” mitigation measures. Also, it is confusing to reference “conserved habitat areas,” because there are no “conserved habitat areas” as defined by our regulations (50 CFR 17.3) in Safe Harbor Agreements. In addition, because these are voluntary agreements, establishing authority to require a landowner to carry out other measures that were not previously agreed to by the landowner is inappropriate.
Similarly, the Candidate Conservation Agreements with Assurances Policy does not have mitigation requirements, and does not refer to “conserved habitat areas,” as defined by our regulations (50 CFR 17.3). Therefore, we propose to delete the word “mitigation” and the phrase “conserved habitat areas” from the implementing regulations at §§ 17.22(d)(5)(i), (ii), and (iii)(B) and 17.32(d)(5)(i), (ii), and (iii)(B).
Existing regulations at §§ 17.22(c)(7) and 17.32(c)(7) and §§ 17.22(d)(7) and 17.32(d)(7) authorize us to revoke a permit issued in association with a Safe Harbor Agreement or Candidate Conservation Agreement with Assurances if we determine that “continuation of the permitted activity would be inconsistent with the criterion set forth in § 17.22(c)(2)(iii) and the inconsistency has not been remedied in a timely fashion.” Because we are concerned that this authority may create a disincentive to landowners considering development of a Safe Harbor Agreement or Candidate Conservation Agreement with Assurances, we propose to replace this provision with a statement that the Director may revoke a permit if continuation of the permitted activity
We have evaluated the effects of the revisions described in this proposed rule. We have concluded that the resulting economic benefits of the proposed rule would accrue to the persons who secure agreements with us. While the number of persons who pursue agreements may increase as a result of these proposed changes, we do not anticipate that the level of participation in the permitting programs will increase because the resources available to process permit applications will not change as a result of this rule. Therefore, we conclude that this proposed rule will not result in additional effects. Based on this finding, we have made the following determinations for this proposed rule.
In accordance with Executive Order 12866, this document is a significant proposed rule.
(a) This proposed rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Because most of the proposed rule deals with revisions of current regulations, we do not anticipate that this rule will cause any significant economic changes, either positive or negative. We have concluded that this rule will have some beneficial economic effect because we are rectifying inconsistencies and drafting errors, thereby making Safe Harbor Agreements and Candidate Conservation Agreements with Assurances easier to undertake and implement. The effect would be minimal because of the small number of permits anticipated to be issued.
(b) This proposed rule is not expected to create additional inconsistencies with other agencies' actions. Although the Safe Harbor and Candidate Conservation Agreements with Assurances policies are joint policies with the National Oceanic and Atmospheric Administration Fisheries, the implementing regulations subject to this proposed rule apply to the Fish and Wildlife Service exclusively. NOAA Fisheries has not adopted similar regulations to the Fish and Wildlife Service to provide a consistent basis for the joint policy implementation.
(c) This proposed rule is not expected to significantly affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) OMB has determined that this rule raises novel legal or policy issues. If this regulation can help facilitate wider adoption of the Safe Harbor and Candidate Conservation Agreements with Assurances programs, it could help increase private conservation efforts on behalf of listed and unlisted species, which is a key component of successful implementation of the Act.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our determination.
We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act. The proposed rule does not establish any new application or implementation burdens. Submitting applications for enhancement of survival permits under the Act is voluntary, and participation in activities that enhance the survival or propagation of species is also voluntary on the part of the applicant. We expect that any impacts of this rule would be beneficial because they clarify the regulatory requirements for obtaining enhancement of survival permits under the Act. We, therefore, do not expect these changes to affect a substantial number of small entities. To date, we have issued 16 Safe Harbor Agreement permits and 5 Candidate Conservation Agreement with Assurances permits. We expect to issue the same number of enhancement of survival permits per year. That averages approximately four Safe Harbor Agreement permits and one Candidate Conservation Agreement with Assurances permit per year. Given the low number of enhancement of survival permits expected to be issued, we certify that this rule will not have a significant economic impact on a substantial number of small entities.
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is not a significant regulatory action under Executive Order 12866, and is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This proposed rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. We expect that this proposed rule will not result in any significant additional expenditures by entities that develop Agreements.
(b) This proposed rule will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; as a result, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This proposed rule imposes no obligations on State or local governments.
In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. This proposed rule has no provision that would take private property rights. Participation in this permitting program is strictly voluntary.
In accordance with Executive Order 13132, this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with appropriate resource agencies throughout the United States.
In accordance with Executive Order 12988, this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The purpose of this rule is to address inconsistencies in and clarify the current regulations.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, this proposed rule does not directly affect Tribal resources. The effect of this proposed rule on Native American Tribes would be determined on a case-by-case basis with individual evaluations of permit applications. Under Secretarial Order 3206, we will, at a minimum, share with the entity that developed the permit application any information provided by the Tribes, through the public comment period or formal submissions, and advocate the incorporation of conservation measures that will restore or enhance Tribal trust resources. After consultation with applicable Tribes and the entity that developed the permit application, and after careful consideration of the Tribes' concerns, we must clearly state the rationale for the recommended final decision and explain how the decision relates to our trust responsibility. Accordingly:
(a) We have not yet consulted with affected Tribes. This requirement will be addressed during individual evaluations of permit applications.
(b) We have not yet treated Tribes on a government-to-government basis. This requirement will be addressed during individual evaluations of permit applications.
(c) We will consider Tribal views in individual evaluations of permit applications.
(d) We have not yet consulted with the appropriate bureaus and offices of the Department about the identified effects of this proposed rule on Tribes. This requirement will be addressed during individual evaluations of permit applications.
This proposed rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501
We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act (NEPA) and the Department of the Interior Manual (318 DM 2.2(g) and 6.3(D)). This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. We have determined that this proposed rule is categorically excluded under the Department of the Interior's NEPA procedures in 516 DM 2, Appendix 1, and 516 DM 6, Appendix 1.
Although these revisions to the regulations will make enhancement of survival permits associated with Safe Harbor Agreements and Candidate Conservation Agreements with Assurances easier to obtain, understand, and implement, it will not change the issuance standards or the manner in which the Service makes its issuance determinations. In addition, the Service will continue to consult on the issuance of each individual permit. During consultation, the potential risks to listed and proposed species and designated and proposed critical habitat areas will be evaluated. Therefore, we have determined that the present action of revising existing regulations for section 10(a)(1)(A) permits will not affect listed species or designated critical habitat.
We request public comments on this proposed rule to revise the regulations applicable to enhancement of survival permits issued under the Act. We will consider all comments and any additional information received by the close of the comment period (listed above in
Executive Order 12866 requires that each agency write regulations that are easy to understand. We invite your comments on how we might make this rule easier to understand, specifically: (1) Are the requirements in the rule clearly stated?; (2) Does the rule contain technical language or jargon that interferes with its clarity?; (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?; (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, § 17.22 Permits for scientific purposes, enhancement of propagation or survival, or for incidental taking); and (5) Is the description of the rule in the
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of the Executive Secretariat and Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address:
Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
Administrative practice and procedure, Exports, Fish, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
For the reasons set out in the preamble, the Service proposes to amend Title 50, Chapter I, subchapter B of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 13 is revised to read as follows:
16 U.S.C. 668(a), 704, 712, 742j-l, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31 U.S.C. 9701.
2. Amend § 13.25 by revising paragraph (b) introductory text, redesignating paragraphs (c) and (d) as paragraphs (d) and (e), and adding a new paragraph (c) as set forth below:
(b) Permits issued under § 17.22(b) or § 17.32(b) of this subchapter B may be transferred in whole or in part through a joint submission by the permittee and the proposed transferee or in the case of a deceased permittee, the deceased permittee's legal representative and the proposed transferee, provided the Service determines that:
(c) In the case of the transfer of lands subject to an agreement and permit issued under § 17.22(c) or (d) or § 17.32 (c) or (d) of this subchapter B, the Service will transfer the permit to the new owner if the new owner agrees in writing to become a party to the original agreement and permit.
3. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
4. Amend § 17.3 by revising the following definitions to read as follows:
5. Amend § 17.22 by revising the first sentence of paragraph (c)(1), paragraphs (c)(1)(ii), (c)(2)(ii), (c)(3)(ii), (c)(5)(ii), (c)(7), the first sentence of paragraph (d)(1), paragraphs (d)(3)(ii), (d)(5)(i)-(ii), (d)(5)(iii)(B), and (d)(7) to read as follows:
(c)(1)
(ii) A description of how incidental take of the listed species pursuant to the Safe Harbor Agreement is likely to occur, both as a result of management activities and as a result of the return to baseline; and
(2) * * *
(ii) The implementation of the terms of the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the affected listed species by contributing to the recovery of listed species included in the permit, and the Safe Harbor Agreement otherwise complies with the Safe Harbor policy available from the Service;
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the Service reasonable advance notice (generally at least 30 days) of when he or she expects to incidentally take any listed species covered under the permit. Such notification will provide the Service with an opportunity to relocate affected individuals of the species, if possible and appropriate; and
(5) * * *
(ii) The Director and the permittee may agree to revise or modify the management measures set forth in a Safe Harbor Agreement if the Director determines that such revisions or modifications do not change the Director's prior determination that the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the listed species. However, the Director may not require additional or different management activities to be undertaken by a permittee without the consent of the permittee.
(7)
(d)(1)
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the Service reasonable advance notice (generally at least 30 days) of when he or she expects to incidentally take any listed species covered under the permit. Such notification will provide the Service with an opportunity to relocate affected individuals of the species, if possible and appropriate; and
(5) * * *
(i)
(ii)
(iii) * * *
(B) If the Director determines additional conservation measures are necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the Agreement is being properly implemented, but only if such measures maintain the original terms of the Agreement to the maximum extent possible. Additional conservation measures will not involve the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the Agreement without the consent of the permittee.
(7)
6. Amend § 17.32 by revising the first sentence of paragraph (c)(1), paragraphs (c)(1)(ii), (c)(2)(ii), (c)(3)(ii), (c)(5)(ii), (c)(7), the first sentence of paragraph (d)(1), paragraphs (d)(3)(ii), (d)(5)(i)-(ii), (d)(5)(iii)(B), and (d)(7) to read as follows:
(c)(1)
(ii) A description of how incidental take of the covered species pursuant to the Safe Harbor Agreement is likely to occur, both as a result of management activities and as a result of the return to baseline;
(2) * * *
(ii) The implementation of the terms of the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the affected listed species by contributing to the recovery of listed species included in the permit, and the Safe Harbor Agreement otherwise complies with the Safe Harbor policy available from the Service;
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the Service reasonable advance notice (generally at least 30 days) of when he or she expects to incidentally take any listed species covered under the permit. Such notification will provide the Service with an opportunity to relocate affected individuals of the species, if possible and appropriate; and
(5) * * *
(ii) The Director and the permittee may agree to revise or modify the management measures set forth in a Safe Harbor Agreement if the Director determines that such revisions or modifications do not change the Director's prior determination that the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the listed species. However, the Director may not require additional or different management activities to be undertaken by a permittee without the consent of the permittee.
(7)
(d)(1)
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the Service reasonable advance notice (generally at least 30 days) of when he or she expects to incidentally take any listed species covered under the permit. Such notification will provide the Service with an opportunity to relocate affected individuals of the species, if possible and appropriate; and
(5) * * *
(i)
(ii)
(iii) * * *
(B) If the Director determines additional conservation measures are necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the Agreement is being properly implemented, but only if such measures maintain the original terms of the Agreement to the maximum extent possible. Additional conservation measures will not involve the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the Agreement without the consent of the permittee.
(7)
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose to revise our regulations pertaining to permits issued under the Endangered Species Act. The proposed revisions will refine and clarify the application requirements and issuance criteria for such permits, particularly when used in connection with projects to improve habitat for listed species. The revisions will encourage and facilitate enhancement initiatives by landowners, natural resource agencies, and others.
Comments from all interested parties must be received by November 10, 2003.
Comments or materials concerning the proposed rule should be sent to Division of Conservation and Classification, U.S. Fish and Wildlife Service, Arlington Square Building, 4401 North Fairfax Drive, Suite 420, Arlington, Virginia 22203 (Telephone 703/358-2171, Facsimile 703/358-1735). Comments and materials received on the proposed rule will be available for inspection, by appointment, during normal business hours, at the above address.
Chris Nolin, Chief, Division of Conservation and Classification, Fish and Wildlife Service (Telephone 703/358-2171, Facsimile 703/358-1735).
The Endangered Species Act (Act) was established to provide a means to conserve the ecosystems upon which endangered and threatened species depend, to provide a program for the conservation of these endangered and threatened species, and to take the appropriate steps that are necessary to bring any endangered or threatened species to the point where measures provided for under the Act are no longer necessary. Section 10(a)(1) of the Act authorizes the Service to issue permits allowing otherwise prohibited activities for certain actions that are consistent with the purposes of the Act. Section 10(a)(1)(A) authorizes such permits for scientific research or to enhance the propagation or survival of all listed species. Generic regulations for these permits are detailed at 50 CFR 17.22(a) and 17.32(a). Section 10(a)(1)(B) authorizes permits allowing the taking of listed species incidental to otherwise lawful activities (such as land development, timber harvest). Regulations for these permits are detailed at §§ 17.22(b) and 17.32(b).
The Service issues section 10(a)(1)(A) permits for otherwise prohibited activities when the purpose of the permit is scientific or when there is a clear link between the proposed activity and the enhancement of propagation or survival of the affected species.
Permits to enhance the propagation or survival of listed species have most commonly been issued in connection with captive breeding efforts and research activities. The Service has recognized, however, that such permits can be used in other contexts as well. For example, in 1999, the Service revised its regulations to recognize two special categories of permits to enhance the survival of listed species. One category, called “permits for the enhancement of survival through Safe Harbor Agreements,” is detailed at §§ 17.22(c) and 17.32(c). The other category, called “permits for the enhancement of survival through Candidate Conservation Agreements with Assurances,” is detailed at §§ 17.22(d) and 17.32(d).
Both of the special categories of enhancement of survival permits authorize take that is incidental to beneficial management activities. The Service could have authorized such take under section 10(a)(1)(B), which authorizes permits for take incidental to any otherwise lawful activity. However, we concluded that it was more appropriate to utilize the authority of section 10(a)(1)(A) for both Safe Harbor Agreements and Candidate Conservation Agreements with Assurances because the purpose of such agreements is to enhance the survival of listed species. In addition, some of the requirements applicable to Habitat Conservation Plans and associated permits under section 10(a)(1)(B), such as mitigation, are ill-suited to the context of activities carried out for the purpose of benefitting listed and unlisted species.
As a result of the 1999 revisions, the regulations now recognize three types of enhancement of survival permits: (1) The generic category of enhancement of propagation or survival permits (§§ 17.22 and 17.32(a)), and the specific categories of permits connected with (2) Safe Harbor Agreements (§§ 17.22 and 17.32(c)) and (3) Candidate Conservation Agreements with Assurances (§§ 17.22 and 17.32(d)). As discussed above, the generic category has historically been used principally to authorize otherwise prohibited activities in connection with captive breeding or similar activities. However, the Service recognizes that there are many other types of activities that can appropriately be authorized under the first category.
An example of such activities would be habitat management activities not associated with mitigation, such as management of parks, reserves or other conservation areas for the benefit of listed species. For example, a state natural reserve may use prescribed burning on a regular basis to maintain the habitat of a listed species such as the Karner blue butterfly. Regular prescribed burning is a beneficial management practice necessary simply for the long-term well-being of this (and many other) species, yet burning has the potential to take at least some individuals of the species, particularly in the sedentary and relatively cryptic egg, larval, or pupal life stages. The purpose of the activity is the maintenance of the species' required habitat in order to enhance the survival of the Karner blue butterfly. To authorize such activities through a Habitat Conservation Plan permit under section 10(a)(1)(B) would be inappropriate to require mitigation for impacts due to habitat management activities that enhance the propagation or survival of listed species.
It may also be inappropriate in some cases to authorize these activities under a Safe Harbor Agreement. This may be particularly true if the landowner does not wish to return the habitat to its baseline condition, which would mean that the requirement of the Safe Harbor policy to quantify baseline responsibilities would result in an unnecessary expense. For these reasons, it would be most efficient and appropriate to authorize the anticipated take, incidental or not, under the generic authority to issue permits to enhance the propagation or survival of a listed species.
The generic authority to issue permits to enhance the propagation or survival of listed species can authorize take that is intentional (as is the case with respect to removing animals from the wild in order to start a captive breeding program) and incidental (as in the prescribed burning example above). For example, a conservation initiative to improve and expand habitat for a species at a site where it currently occurs in only small numbers in degraded habitat may unavoidably result in the incidental take of some individuals of the species. In addition, if the species (
There are a number of activities that can appropriately be authorized under the first category to encourage in-situ conservation of foreign-listed species. An example would be the import of the Morelet's crocodile (
Federal agencies generally would continue to be able to obtain permits authorized through parts 17.22(a) and 17.32(a). Federal agencies may not obtain authorization for intentional take associated with a Safe Harbor Agreements and Candidate Conservation Agreements with Assurances because the Safe Harbor Agreements and Candidate Conservation Agreements with
The Service recognizes that its existing regulations at §§ 17.22(a) and 17.32(a) do not clearly describe the full range of activities that enhance species survival. Although our current regulations authorize the permitting of take that results from any activity that meets the standard under section 10(a)(1)(A), enhancement of propagation or survival, we propose to revise §§ 17.22(a) and 17.32(a) to clarify the range of actions that may be permitted. Furthermore, we propose to clarify that these permits may also be issued in conjunction with Candidate Conservation Agreements with Assurances and Safe Harbor Agreements that contemplate intentional take.
In 1999, the Service's Office of Management Authority, which is responsible for activities involving non-native listed species and the international movement of all listed species, became the Division of Management Authority. As such, § 17.8(a)(2) needs to be revised to reflect this change.
Regulations at §§ 17.22(a) (for endangered species) and 17.32(a) (for threatened species) describe application requirements and issuance criteria for permits for scientific purposes or to enhance the propagation or survival of listed species (§ 17.32(a) also covers the issuance of permits for other purposes that are allowable for threatened species). As currently written, those regulations prescribe the same application requirements and issuance criteria for all such permits, regardless of whether the purpose of the application is to conduct scientific research, import, export, conduct interstate commerce, implement captive breeding efforts, carry out habitat restoration activities to enhance the survival of species associated with that habitat, or carry out other activities designed to benefit the species' survival in the wild. Some of these provisions, particularly the application requirements, are important for only certain purposes, but not for all. We propose to revise these application requirements and issuance criteria to indicate clearly which apply to which of the different purposes for which permits are sought. Specific changes are described as follows.
Both §§ 17.22(a)(1)(i) and 17.32(a)(1)(i) require applications to specify the number, age, and sex of animals to be covered by the permit. This information may be of considerable importance if the purpose of the permit is to acquire particular individuals from the wild for captive breeding or scientific research. It is generally not important, or determinable, in other contexts, such as when the permit applicant seeks authority to take the species incidental to carrying out habitat improvement activities to enhance the survival of the species, as in the case of prescribed burning of Karner blue butterfly habitat. Accordingly, we propose to revise this provision to require such information only insofar as it is determinable at the time of the permit application.
A resume of the applicant's attempts to obtain specimens of wildlife sought to be covered by the permit in a manner that would not cause its death or removal is required by §§ 17.22(a)(1)(iii) and 17.32(a)(1)(iii). This requirement is appropriate in those situations in which the permit applicant seeks to collect or obtain wildlife. In situations where that is not the case, such as when the applicant must inadvertently take wildlife as part of a program to enhance the species survival through habitat creation or improvement, the requirement is unnecessary. Accordingly, we propose to clarify this provision by adding a prefatory clause explaining that it applies only when an applicant seeks to obtain specimens under the permit.
The requirements, at §§ 17.22(a)(1)(v) and 17.32(a)(1)(v), that an application must include a description of an institution or facility only has relevance where the applicant intends to use, display, or maintain the covered wildlife. In other situations, such as those involving habitat restoration to enhance the survival of a species, the applicant will not use, display, or maintain the species. Accordingly, we propose to clarify this provision by adding a prefatory clause explaining that it applies only when an applicant intends to use, display, or maintain wildlife covered by the permit.
Both §§ 17.22(a)(1)(vi) and 17.32(a)(1)(vi) require an applicant to describe the facilities where wildlife covered by the permit will be housed or cared for. This provision is relevant if the applicant intends to house or care for live wildlife, but not if the applicant intends only to enhance the survival of a species through habitat improvement. Accordingly, we propose to clarify this provision by specifying that it applies only when the applicant intends to house or care for live wildlife.
At present, §§ 17.22(a)(2)(i) and 17.32(a)(2)(i) require evaluation of whether the purpose for which the permit is required is adequate to justify removing from the wild the wildlife sought to be covered under the permit or otherwise changing its status. Yet not all scientific research or enhancement of propagation or survival permits will entail removing wildlife from the wild, or changing its status. Some enhancement or research activities may take wildlife by means of harassment (such as handling individuals through banding, or disturbing individuals through habitat restoration), but will not remove it from the wild. Accordingly, we propose to revise §§ 17.22(a)(2)(i) and 17.32(a)(2)(i) to a more general statement requiring the Director to consider whether the purpose for which the permit is sought is adequate to justify the otherwise prohibited activity.
Considering whether issuance of the permit would conflict with any program to enhance the survival probabilities of the population from which the wildlife is to be removed is required by §§ 17.22(a)(2)(iii) and 17.32(a)(2)(iii). Because not all permits issued under this authority entail removing wildlife from the wild, we propose to revise this provision to state more generally that the Director must consider whether issuance of the permit would conflict with any program to enhance the survival probability of the wildlife covered by the permit.
Permits for the enhancement of survival through Safe Harbor Agreements authorized by §§ 17.22(c) and 17.32(c) only authorize take that is incidental to some otherwise lawful activity. In some limited circumstances in which a Safe Harbor Agreement would enhance the survival of a listed species by various activities, such as those discussed above, it may be appropriate to permit limited intentional taking of that species. Therefore, we propose a provision whereby a permit authorizing such intentional take associated with a Safe Harbor Agreement can be issued under §§ 17.22(a) or 17.32(a), in addition to incidental take under §§ 17.22(c) or 17.32(c), but only if the Director determines that all requirements of the Safe Harbor policy are met, other than its limitation for only incidental take. Thus, Safe Harbor Agreement permits issued under §§ 17.22(a) or 17.32(a) covering intentional take will be administered in accordance with the responsibilities and assurances stated in the Safe Harbor policy. This means that holders of these permits will have assurances that their conservation efforts will not incur future regulatory
Similarly, permits for the enhancement of survival through Candidate Conservation Agreements with Assurances, authorized by §§ 17.22(d) and 17.32(d), only authorize future take that is incidental to some otherwise lawful activity should the species named on the permit become listed as endangered or threatened. However, in some limited circumstances in which a Candidate Conservation Agreement with Assurances enhances the survival of an unlisted species by creating, restoring, or improving its habitat, reintroducing it, or other similar activities, it may be appropriate to permit limited intentional taking of that species to reduce damage to or destruction of agricultural crops, livestock, domestic animals, buildings or other infrastructure, or negative effects to human health or safety. Therefore, we propose a provision whereby a permit authorizing such intentional take associated with a Candidate Conservation Agreement with Assurances can be issued under §§ 17.22(a) or 17.32(a), in addition to incidental take under §§ 17.22(d) or 17.32(d), but only if the Director determines that all requirements of the Candidate Conservation Agreements with Assurances policy are met, other than its limitation for only incidental take. Thus, Candidate Conservation Agreements with Assurances permits issued under §§ 17.22(a) or 17.32(a) covering intentional take will be administered in accordance with the responsibilities and assurances stated in the Candidate Conservation Agreements with Assurances policy. This means that holders of these permits will have assurances that their conservation efforts will not incur future regulatory obligations in excess of those to which they agreed. As with Safe Harbor Agreements, these assurances cannot be provided to Federal agencies.
A notice to the Director in the event of escape of wildlife from captivity is a permit condition required by §§ 17.22(a)(3) and 17.32(a)(3). We propose to clarify that such a condition is required only in permits that authorize the keeping of wildlife in captivity. In addition, we propose to add a provision under this paragraph applicable to permits to undertake habitat creation, restoration, or improvement, reintroduction of a species, or similar activities. The Director shall condition these permits as he or she deems appropriate to ensure that the net effect of those activities, together with any taking to be authorized by the requested permit, is reasonably expected to be beneficial to the conservation of such species.
We have evaluated the effects of the proposed regulation revisions described in this rule. We have concluded that the resulting economic benefits would be limited by the number of persons obtaining permits, and that the number of permits issued would be limited by our resources available to develop and process permit applications. This proposed rule clarifies the regulations pertaining to scientific purposes or enhancement of propagation or survival permits to encourage habitat enhancement activities. Although we anticipate issuing these types of permits, we do not anticipate that the level of participation in these permitting programs will significantly increase as a result of this rule because our resources available to process permit applications will not change as a result of this rule. Therefore, we conclude that this proposed rule will have little effect. Based on this finding, we have made the following determinations for this proposed rule.
In accordance with Executive Order 12866, this document is a significant proposed rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below.
(a) This proposed rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Since most of the proposed rule deals with clarification of current regulations, we do not anticipate this rule will cause any economic changes, either positive or negative. We have concluded that the portion of the proposed rule that deals with issuing permits for habitat improvement will have a beneficial economic effect, but that the effect would be small because of the small number of permits anticipated to be issued and the relatively small economic benefits that would accrue to permittees who take advantage of this provision.
(b) This proposed rule is not expected to create inconsistencies with other agencies' actions.
(c) This proposed rule is not expected to significantly affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) OMB has determined that this rule may raise novel legal or policy issues and, as a result, this rule has undergone OMB review.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our determination.
We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act. The proposed rule does not establish any new implementation burdens. Submitting applications for permits under the Act is voluntary, and participation in activities that enhance the survival or propagation of species is also voluntary on the part of the applicant. We expect that any impacts of this rule would be beneficial by making it easier to understand the issuance requirements for permits under the Act and particularly for undertaking enhancement of survival or propagation activities that would be beneficial for habitat restoration and improvements. While the Service currently issues a large number of permits for activities such as research and captive breeding (currently over 1,200 permits issued, with 485 permits issued in 2001) and incidental take (currently over 400 permits issued, with 141 of incidental take permits issued in 2001), we only anticipate issuing a small number of permits that take advantage of this new habitat enhancement provision. We, therefore, do not expect these changes to affect a substantial number of small entities. We expect to issue approximately 10 additional of these habitat enhancement permits per year during the first several years of the program's operation. Therefore, given the low number of habitat enhancement permits expected to be issued and the
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This proposed rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. We expect that this proposed rule will not result in any significant additional expenditures by entities that develop Agreements.
(b) This proposed rule will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This proposed rule imposes no obligations on State or local governments.
In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. This proposed rule has no provision that would take private property rights. Participation in this permitting program is strictly voluntary.
In accordance with Executive Order 13132, this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with appropriate resource agencies throughout the United States.
In accordance with Executive Order 12988, this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, this proposed rule does not directly affect Tribal resources. The effect of this proposed rule on Native American Tribes would be determined on a case-by-case basis with individual evaluations of permit applications. Under Secretarial Order 3206, we will, at a minimum, share with the entity that developed the permit application any information provided by the Tribes, through the public comment period or formal submissions, and advocate the incorporation of conservation measures that will restore or enhance Tribal trust resources. After consultation with the Tribes and the entity that developed the permit application and after careful consideration of the Tribe's concerns, we must clearly state the rationale for the recommended final decision and explain how the decision relates to our trust responsibility. Accordingly:
(a) We have not yet consulted with affected Tribes. This requirement will be addressed during individual evaluations of permit applications.
(b) We have not yet treated Tribes on a government-to-government basis. This requirement will be addressed during individual evaluations of permit applications.
(c) We will consider Tribal views in individual evaluations of permit applications.
(d) We have not yet consulted with the appropriate bureaus and offices of the Department about the identified effects of this proposed rule on Tribes. This requirement will be addressed during individual evaluations of permit applications.
This rule does not contain any new collections of information under permit application forms other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501
We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act (NEPA) and the Department of the Interior Manual (318 DM 2.2(g) and 6.3(D)). This rule does not constitute a major Federal action significantly affecting the quality of the human environment. The Fish and Wildlife Service has determined that this rule is categorically excluded under the Department of the Interior's NEPA procedures in 516 DM 2, Appendix 1 and 516 DM 6, Appendix 1.
Though these revisions to the regulations will clarify the range of actions that may be permitted under enhancement of survival permits, it will not change the issuance standards for these enhancement of survival permits, or the manner in which the Service makes its issuance determinations. In addition, the Service will continue to consult on the issuance of each individual permit. During consultation, the potential risks to listed and proposed species and designated and proposed critical habitat areas will be evaluated. Therefore, at this time the Service has determined that the present action of revising these regulations for section 10(a)(1)(A) permits will not affect listed species or designated critical habitat.
We request public comments on this proposed rule to revise the regulations applicable to permits for scientific purposes or enhancement of propagation or survival. We will take into consideration all comments and any additional information received by the close of comment period (listed above in
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, § 17.8 Permit applications and information collection requirements.) (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of the Executive Secretariate and Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You may also e-mail the comments to this address:
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
For the reasons set out in the preamble, the Service proposes to amend Title 50, Chapter I, subchapter B of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.8 by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) Submit permit applications for activities affecting native endangered and threatened species in international movement or commerce, and all activities affecting nonnative endangered and threatened species, to the U.S. Fish and Wildlife Service, Division of Management Authority, 4401 N. Fairfax Drive, Room 700, Arlington, VA 22203.
3. Amend § 17.22 by revising paragraphs (a)(1), (a)(2), and (a)(3) to read as follows:
(a)(1)
(i) The common and scientific names of the species to be covered by the permit, as well as the number, age, and sex of such species, and the activity to be authorized (such as take, export, or interstate commerce). If the purpose of the permit is for habitat restoration, in-situ conservation for foreign listed species, or other such situations where this information is undeterminable, the number, age, and sex of the species may not be required;
(ii) A statement as to whether, at the time of application, the wildlife to be covered by the permit
(A) Is still in the wild,
(B) Has already been removed from the wild,
(C) Was born in captivity, or
(D) Was artificially propagated;
(iii) If the applicant seeks to obtain specimens of the wildlife to be covered by the permit, a resume of the applicant's attempts to obtain the wildlife in a manner that would not cause the death or removal from the wild of such wildlife. If the purpose of the permit is to promote in-situ conservation of foreign-listed species, such information may not be required;
(iv) If the wildlife to be covered by the permit has already been removed from the wild, the country and place where such removal occurred; if the wildlife to be covered by the permit was born in captivity or artificially propagated, the country and place where such wildlife was born or artificially propagated, as well as the name and address of the breeder;
(v) If the wildlife to be covered by the permit is to be used for scientific purposes, displayed for educational purposes, or maintained for any reason at an institution of other facility, a complete description and address of the institution or other facility;
(vi) If the applicant intends to house and/or care for live wildlife covered by the permit, a complete description, including photographs or diagrams, of the facilities to house the wildlife and a resume of the experience of those persons who will be caring for the wildlife;
(vii) A full statement of the reasons why the applicant is justified in obtaining a permit, including the details of the activities to be authorized by the permit; and
(viii) If the application is for the purpose of enhancement of propagation, a statement of
(A) The applicant's willingness to participate in a nationally or internationally recognized cooperative breeding program,
(B) A description of how participation in such a breeding program will be carried out,
(C) The applicant's willingness to maintain or contribute data to a studbook, and
(D) A description of how the propagation of the species will benefit the species in the wild.
(2)
(i) Upon receiving an application completed in accordance with paragraph (a)(1) of this section, the Director will decide whether the Service should issue a permit. In making this decision, the Director will consider, in addition to the general criteria in § 13.21(b) of this subchapter, the following factors:
(A) Whether the applicant's intended purpose for which the permit is required justifies allowing the applicant to engage in an otherwise prohibited activity;
(B) The probable direct and indirect effect that issuing the permit would have on the wild populations of the wildlife to be covered by the permit;
(C) Whether the permit, if issued, would, in any way, directly or indirectly conflict with any known program intended to enhance the survival probabilities of any population of the wildlife to be covered by the permit;
(D) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife to be covered by the permit;
(E) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other mattes germane to the application; and
(F) Whether the expertise, facilities, or other resources available to the applicant appear adequate to accomplish the objectives stated in the application;
(ii) The Director may issue a permit for enhancement of survival of a species that allows the applicant to create, restore, or improve habitat, reintroduce the species, contribute to in-situ conservation of foreign-listed species, or conduct similar activities if the Director finds that the net effect of those activities, together with any incidental or other taking to be authorized by the permit, will likely be beneficial to the conservation of that species. In determining whether these actions are beneficial, the Director will consider factors including, but not limited to: whether the action is expected to increase the number of individuals or amount of suitable habitats, whether the potential benefits outweigh any negative effects associated with the action, whether the action eliminates or reduces threats to the species, and whether the duration of planned activities is sufficient to achieve the expected benefits. In the case of an application for a permit to allow intentional take of any species in association with a Safe Harbor Agreement, the Director must find that the activity will be in accordance with the terms of an associated Safe Harbor Agreement and will comply with all requirements of the Safe Harbor Agreements Policy, except for the limitation in that policy to incidental take. In the case of an application for a permit to allow intentional take of any species not yet listed at the time of the permit application, the Director must find that the activity will be in accordance with the terms of an associated Candidate Conservation Agreement with Assurances and will comply with all requirements of the Candidate Conservation Agreements with Assurance Policy, except for the limitation in that policy to incidental take;
(3)
(ii) Permits issued under this section for enhancement of survival to undertake habitat creation, restoration, or improvement, or reintroduction of a species, or similar activities will be subject to such conditions as the Director deems appropriate to ensure that the net effect of those activities, together with any incidental or intentional take to be authorized by the requested permit, will be beneficial to the conservation of such species.
4. Amend § 17.32 by revising paragraphs (a)(1)(i)-(viii), (a)(2), and (a)(3) to read as follows:
(a)(1) * * *
(i) The common and scientific names of the species to be covered by the permit, as well as the number, age, and sex of such species, and the activity to be authorized (such as take, export, or interstate commerce). If the purposes of the permit is for habitat restoration, in-situ conservation of foreign listed species, or other such situations where this information is undeterminable, the number, age, and sex of the species may not be required;
(ii) A statement as to whether, at the time of application, the wildlife to be covered by the permit
(A) Is still in the wild,
(B) Has already been removed from the wild,
(C) Was born in captivity, or
(D) Was artificially propagated;
(iii) If the applicant seeks to obtain specimens of the wildlife to be covered by the permit, a resume of the applicant's attempt to obtain the wildlife in a manner that would not cause the death or removal from the wild of such wildlife. If the purpose of the permit is to promote in-situ conservation of foreign-listed species such information may not be required.
(iv) If the wildlife to be covered by the permit has already been removed from the wild, the country and place where such removal occurred; if the wildlife to be covered by the permit was born in captivity or artificially propagated, the country and place where such wildlife was born or artificially propagated, as well as the name and address of the breeder;
(v) If the wildlife to be covered by the permit is to be used for scientific purposes, displayed for educational purposes, or maintained for any reason at an institution or other facility, a complete description and address of the institution or other facility;
(vi) If the applicant intends to house and/or care for live wildlife covered by the permit, a complete description, including photographs or diagrams, of the facilities to house the wildlife and a resume of the experience of those persons who will be caring for the wildlife;
(vii) A full statement of the reasons why the applicant is justified in obtaining a permit, including the details of the activities to be authorized by the permit; and
(viii) If the application is for the purpose of enhancement of propagation, a statement of
(A) The applicant's willingness to participate in a nationally or internationally recognized cooperative breeding program,
(B) A description of how participation in such a breeding program will be carried out,
(C) The applicant's willingness to maintain or contribute data to a studbook, and
(D) A description of how the propagation of the species will benefit the species in the wild.
(2)
(A) Whether the applicant's intended purpose for which the permit is required justifies allowing the applicant to engage in an otherwise prohibited activity;
(B) The probable direct and indirect effect that issuing the permit would have on the wild populations of the wildlife to be covered by the permit;
(C) Whether the permit, if issued, would, in any way, directly or indirectly conflict with any known program intended to enhance the survival probabilities of any population of the wildlife to be covered by the permit;
(D) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife to be covered by the permit;
(E) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and
(F) Whether the expertise, facilities, or other resources available to the applicant appear adequate to accomplish the objectives stated in the application.
(ii) The Director may issue a permit for enhancement of survival of a species that allows the applicant to create, restore, or improve habitat, reintroduce the species, contribute to in-situ conservation of foreign-listed species, or conduct similar activities if the Director finds that the net effect of those activities, together with any incidental or other taking to be authorized by the permit, will likely be beneficial to the conservation of that species. In determining whether these actions are beneficial, the Director will consider factors including, but not limited to: whether the action is expected to increase the number of individuals or amount of suitable habitats, whether the potential benefits outweigh any negative effects associated with the action, whether the action eliminates or reduces threats to the species, and whether the duration of planned activities is sufficient to achieve the expected benefits. In the case of an application for a permit to allow intentional take of any species in association with a Safe Harbor Agreement, the Director must find that the activity will be in accordance with the terms of an associated Safe Harbor Agreement and will comply with all requirements of the Safe Harbor Agreements Policy, except for the limitation in that policy to incidental take. In the case of an application for a permit to allow intentional take of any species not yet listed at the time of the permit application, the Director must find that the activity will be in accordance with the terms of an associated Candidate Conservation Agreement with Assurances and will comply with all requirements of the Candidate Conservation Agreements with Assurances Policy, except for the limitation in that policy to incidental take.
(3)
(ii) Permits issued under this section for enhancement of survival to undertake habitat creation, restoration, or improvement, or reintroduction of a species, or similar activities will be subject to such conditions as the Director deems appropriate to ensure that the net effect of those activities, together with any incidental or intentional take to be authorized by the requested permit, will be beneficial to the conservation of such species.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to amend the regulations implementing the Pacific Coast Groundfish Fishery Management Plan (FMP) to provide for a mandatory, vessel-financed observer program on at-sea processing vessels. This action would require processing vessels to employ and pay for either one or two (depending on vessel length) NMFS-certified observers obtained from a third-party NMFS-permitted observer provider company while participating in the Pacific Coast groundfish fishery. The action also specifies certification and decertification requirements for observers, and defines the responsibilities of observers and processing vessels.
This action is necessary to satisfy the standardized bycatch reporting methodology requirements of the 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Under these requirements, a fishery management plan (FMP) must adopt a standardized reporting methodology for assessing the amount and kind of bycatch occurring in the fishery. In addition, this action will benefit fisheries conservation and management by providing information needed for enforcing fishery regulations, maintaining safe and adequate working conditions for observers, and establishing certification and performance standards for observers to ensure that quality data are available for managing the fishery.
Comments on this proposed rule must be received by October 10, 2003.
Send comments to D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle, WA 98115-0070, Attn: Becky Renko. Comments also may be sent via facsimile (fax) to 206-526-6736. Comments will not be accepted if submitted via e-mail or the Internet.
Copies of the environmental assessment/regulatory impact review/initial regulatory flexibility analysis (IRFA) may be obtained from the Pacific Fishery Management Council (Council) by writing to the Council at 7700 NE Ambassador Place, Portland, OR 97220, or by contacting Don McIsaac at 503-326-6352. Copies may also be obtained from William L. Robinson, Northwest Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle, WA 98115-0070. Send comments regarding the reporting burden estimate or any other aspect of the collection-of-information requirements in this proposed rule to one of the NMFS addresses and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 00503 (Attn: NOAA Desk Officer).
William L. Robinson, Northwest Region, NMFS, telephone: 206-526-6140; fax: 206-526-6736; and e-mail:
This proposed rule is also accessible via the Internet at the Office of the
The Federal groundfish fishery off the Washington, Oregon, and California (WOC) coasts is managed pursuant to the Magnuson-Stevens Act and the
The Magnuson-Stevens Act at 16 U.S.C. 1853(a)(11) requires each FMP to establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery. Further, at 16 U.S.C. 1853(b)(8), the Magnuson-Stevens Act provides that an FMP may require that one or more observers be carried aboard a vessel of the United States engaged in fishing for species that are subject to an FMP, for the purpose of collecting data necessary for the conservation and management of the fishery. Placement of fishery observers on vessels at sea is acknowledged as an important method for collecting fisheries data. Therefore, the Pacific Coast Groundfish FMP provides that all catcher/processors and at-sea processing vessels operating in the groundfish fishery may be required to accommodate on board observers for purposes of collecting scientific data. Amendment 13 to the FMP also provides that vessels may be required to pay for observers. Under the Magnuson-Stevens Act at 16 U.S.C. 1855(d), the Secretary of Commerce, acting through NMFS, has general responsibility to carry out any fishery management plan and may promulgate such regulations as may be necessary to carry out this responsibility.
The current regulations requiring observers in the Pacific Coast groundfish fishery (50 CFR 660.360) apply to catcher vessels, but not to processing vessels. So far, the only processing vessels participating in the fishery are large catcher/processors and motherships that also participate in the Alaskan pollock fisheries. This fishery is described in more detail below.
The WOC at-sea Pacific whiting fishery is a mid-water trawl fishery that is currently composed of large catcher-processor and mothership vessels. The catcher-processors harvest and process catch while the motherships rely on smaller catcher vessels to deliver unsorted catch for processing. These large processing vessels primarily operate in the Alaskan pollock (
Under the Alaska observer program (as specified in the final Alaskan rule), vessels are required to employ and pay for NMFS-certified observers that are provided by third-party observer provider companies operating under permits administered by the NMFS Alaska Region. The Alaska program contains rigorous qualification and performance standards both for observers and observer provider companies, and also contains processes for sanctioning observer provider company permits, as well as certifying and decertifying observers.
In addition to the large processing vessels that also participate in the Alaskan fisheries, it is anticipated that some smaller vessels may enter the at-sea processing sector of the Pacific whiting fishery in the near future. Severe constraints for the non-whiting Pacific Coast groundfish fishery are expected to motivate catcher vessel operators to seek new opportunities. At-sea processing of Pacific whiting may represent one such opportunity. As catcher vessels, such vessels are currently required to carry observers under the observer regulations for the groundfish fishery at 50 CFR 660.360. However, as processing vessels, they would not be covered by the WOC observer requirements unless this proposed rule is adopted.
Since 1991, the large at-sea whiting processing vessels have each voluntarily carried at least one NMFS-trained observer to provide data for estimating total landed catch and discards; monitoring the attainment of annual groundfish allocations; estimating catch rates of prohibited species; and assessing stock conditions. NMFS has come to depend on data from whiting observers to provide information critical to conservation and management of the marine resources.
In recent years, observer data has also become increasingly important for monitoring incidental catch of overfished species and Endangered Species Act (ESA) listed salmonids. Some of the overfished species are taken as bycatch in the Pacific whiting fishery. Pacific whiting itself was declared overfished in 2002.
For the most part, the at-sea whiting fishery has been monitored satisfactorily under the voluntary program. However, there is concern about the lack of data that would be available if at-sea processing vessels no longer voluntarily carried observers. With this in mind, at its April 1999 meeting the Council recommended that NMFS proceed with a regulatory package to provide for a mandatory observer program in the at-sea processing portion of the whiting fishery for vessels more than 125 ft (38.1 m) in length. The Council's recommendation would have covered all the processing vessels that were participating in the whiting fishery at that time. In addition, on April 12, 2002, a Federal magistrate concluded in
To assure the integrity and availability of observer data in the future, NMFS now proposes to establish a mandatory observer program and mandatory observer coverage levels for all at-sea processing vessels in the Pacific Coast groundfish fishery. At-sea processing is currently confined to the Pacific whiting fishery. The proposed rule requires at-sea processing vessels greater than 125 ft (38.1 m) in length to carry two NMFS-certified observers while participating in the groundfish fishery. Vessels less than 125 ft (38.1 m) in length are required to carry one observer. Observers must be obtained, and paid for by the vessels, through third-party observer provider companies operating under permits issued by the NMFS Alaska Region. The proposed rule also specifies certification and decertification requirements for observers that will be administered by the Northwest Region of NMFS in Seattle, Washington, and defines the responsibilities of observers and processing vessels.
Observers are a uniformly trained group of technicians whose objective is fisheries data gathering. Observers are stationed aboard vessels to gather independent data about the fish that are taken, harvested, received or processed by the vessel. Standardized sampling procedures, defined by NMFS, are intended to provide statistically reliable data for fleetwide monitoring of the fishery. The primary duties of an observer include: estimating catch weights; determining catch composition; collecting length and weight measurements, and determining sex distribution.
To be an observer, applicants are required to have a bachelor's degree in fisheries, wildlife biology, or a related
Under the existing voluntary observer program, hiring procedures, minimum qualifications, certification requirements, responsibilities, or prohibited behaviors are not defined by regulations. In addition, there are no provisions that allow NMFS to sanction individuals who are found to have violated program requirements or unsatisfactorily performed the duties of an observer.
Defining certification requirements and prohibited behaviors will ensure that observers are qualified, and understand their responsibilities and duties. Establishing a suspension/decertification process will allow NMFS to deal with observer performance or behavioral issues while allowing observers an opportunity to file an administrative appeal prior to a final determination.
In small fleets, such as the at-sea catcher-processor and mothership sectors of the whiting fishery, a single observer's data collection represents a substantial portion of the data available to manage the fishery. As a result, poor quality data may have a strong influence on fleetwide estimates of total catch by species. Although poor performance by observers has not been a significant problem to date, it is important to have procedures available to address performance concerns in order to maintain data integrity.
In recent years, approximately twelve processing vessels, have annually participated in the WOC at-sea whiting fishery. There are currently no regulations that require at-sea processors to provide safe and adequate working conditions for observers. Operational or mechanical barriers can easily prevent an observer from sampling according to the protocols defined by NMFS. The observer's ability to accomplish their duties, and thereby maintain data integrity, requires that the vessel provide: (1) notification of fish being brought aboard, (2) access to unsorted catch, (3) sufficient time to collect a sample, and (4) adequate space in which to collect and work up samples. When there are no regulatory requirements defining the conditions necessary for an observer to carry out their duties, individual operations may intentionally or inadvertently neglect to provide these necessities.
Observer health and safety is of primary importance to NMFS. Instituting a mandatory observer program will ensure that the health and safety standards specified at 50 CFR 600.725 and 600.746 will apply to whiting observers. Under these regulations, owners and operators of fishing vessels that carry observers must comply with specific requirements in order to ensure that their vessels are adequate and safe for the purposes of carrying an observer. In addition to the national regulations, existing regulations specific to the treatment and well being of Pacific coast groundfish observers at 50 CFR 660.360 will also apply to observers on board at-sea processing vessels.
This proposed rule includes requirements for each at-sea processing vessel over 125 feet (38.1 m) in length to carry two observers while participating in the fishery and each at-sea processing vessel less than 125 feet (38.1 m) in length to carry one observer while participating in the fishery. Since 1991, all processing vessels participating in the at-sea whiting fishery have voluntarily carried at least one observer. Since mid-1997, when the Department of Justice approved allocation of quota shares among members of the Whiting Conservation Cooperative, all catcher-processors have generally carried two observers on a voluntary basis. Having two observers allows all or almost all hauls to be sampled. This level of sampling also provides the Whiting Conservation Cooperative members with additional data for managing their voluntary quota program among vessels that are members of the Cooperative.
In contrast, the mothership sector did not begin carrying two observers until 2000. Beginning in 2000, most motherships in the sector chose to increase their observer coverage to obtain additional data for estimating incidental catch of salmon and overfished species. Since 2001 all motherships have carried two observers. The treaty Indian tribal mothership, which processes catch taken by catcher vessels harvesting the Makah tribal whiting allocation, has typically carried two observers since 1996.
Because the large whiting processing vessels process whiting twenty four hours per day, seven days a week, a single observer typically samples less than half of all hauls taken by an individual vessel. Requiring two observers would increase the number of observed hauls and is likely to increase the proportion of each individual haul that is sampled. The increased sampling coverage provided by two observers is necessary to increase the precision in estimates of incidentally caught species. Having more precise estimates is especially important for infrequently occurring species (those that are encountered in large numbers in only a few hauls or occurring in low numbers in most hauls) such as ESA listed salmon and overfished groundfish species.
Requiring each vessel to carry two observers deviates from the Council's April 1999 recommendation to require one observer per processing vessel. As discussed above, requiring each processing vessel to carry two observers will provide the data necessary for monitoring the fishery. Because all processors have carried two observers since 2001, this change from the Council's 1999 recommendation is not expected to be controversial nor to increase economic impacts upon the large processing vessels.
The proposed rule also requires at-sea processing vessels less than 125 ft (38.1 m) in length to carry one observer, should they choose to enter the processing sector of the fishery. This would be a new regulatory requirement for small vessels operating as processors. Currently, NMFS funds the observer program for similar sized catcher vessels, and the vessels themselves are not required to pay for anything but food and incidentals for the observers. Under this proposed rule the small processing vessels would be required to pay for their observer coverage.
Requiring large processing vessels to carry two observers, and smaller vessels to carry one observer, is expected to improve the accuracy of catch projections and reduce the likelihood of overestimating or underestimating the harvested amounts of target and incidentally caught species. Data inaccuracies could affect the long-term biological stability and yield of whiting or incidentally caught species. The ESA terms and conditions for incidental take of chinook salmon in the whiting fishery are also more likely to be met.
NMFS believes this action will benefit management of the Pacific whiting fishery by providing information needed for enforcement of fishery regulations. Regulations at 15 CFR part 905 preclude
At-sea processing vessels operating in the whiting fishery generally participate in the Alaska groundfish fisheries during the same calendar year, and are subject to Federal observer regulations at 50 CFR 679.50. These vessels also participate in the restricted access fisheries in Alaska, which require certified observer sampling stations. In developing observer regulations for the WOC whiting fisheries, the Alaskan observer regulations have been duplicated as much as possible, recognizing differences in Pacific coast groundfish fisheries, management strategies and objectives, and uses of observer data. Requirements in this proposed rule are not expected to create a significant burden on any vessel that is in compliance with the Alaskan regulations.
Because all large processors currently carry two observers voluntarily, mandating them to carry two observers is not expected to place an additional economic burden on processing vessels. The costs of carrying an observer during whiting season is about $300 per day. On average in 2001, each vessel fished for 31 days (ranging from 9-118 days). At $300 per day, the average cost to the vessel for each observer was $9,300 (ranging from $3,950 - $36,650) during the 2001 whiting season. In addition, training and debriefing costs would have been approximately $1,250 per observer. Applying $0.035 per pound (the average ex-vessel value of whiting to the Oregon shore-based fishery in July in 2001) to the average round weight of whiting processed per vessel in 2001 (7,705 mt) the cost of one observer would be on the order of 1.6 percent of the ex-vessel value of the whiting harvest, and would be double, 3.1 percent of the ex-vessel value of the whiting harvest if the vessel carried two observers.
With respect to smaller vessels that might enter the fishery as processors, nothing is known about the economics of their potential operations. Observer costs would be fixed, and would be the same as for the larger vessels, except that smaller vessels would only be required to carry one observer.
Observer certification requirements for the WOC whiting fishery have been patterned after those for the Alaskan groundfish fisheries contained in the Alaskan proposed rule at 67 FR 58452 (September 16, 2002). Regulations defining standards of observer conduct, and providing for suspension and revocation of observer certifications are also consistent with those used for the Federal groundfish fishery off Alaska. Some minor adjustments have been made to adapt the regulations to the WOC fishery. Also, a simplified appeals procedure limited to the needs of this particular observer program has been provided. The Alaska appeals procedure is an omnibus procedure that encompasses numerous types of agency actions, and is more elaborate than is necessary to accommodate the needs of the WOC observer program. An expected annual cost burden of $8 per observer is the cost estimated for the time required for observers to prepare appeals of initial administrative decisions on certifications, suspensions, or decertifications. This is expected to affect, at a maximum, 5 percent of the WOC observers per year.
Under this proposed rule, at-sea processing vessels will be required to obtain their observers from third-party observer provider companies that are subject to the Alaskan regulations at 50 CFR part 679.50. These are comprehensive regulations that provide for permitting and permit sanctions against the observer provider companies. These provisions are not duplicated in the WOC regulations, the observer provider companies will be regulated under the Alaska regulations by the NMFS Alaska Region. Therefore, the proposed action refers to the Alaskan requirements for observer providers, but does not repeat them in the WOC regulations.
This proposed rule has been determined to be not significant for the purpose of Executive Order 12866.
NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. The IRFA is available from NMFS (see
A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY and at the beginning of this section of this proposed rule. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
Three alternative actions were considered and analyzed. The alternatives included: (1) the status quo, (2) one observer, observer and observer provider certification/decertification procedures, vessel standards, and prohibitions, and (3) two observers, observer and observer provider certification/decertification procedures, vessel standards, and prohibitions.
Under the preferred alternative, processing vessels would be required to employ and pay for either one or two (depending on vessel length) NMFS-certified observers obtained from a third-party NMFS-permitted observer provider company while participating in the Pacific Coast groundfish fishery. The action also specifies certification and decertification requirements for observers, and defines the responsibilities of observers and processing vessels. To the extent possible the proposed regulations are consistent with existing regulations for observers in the Alaska groundfish fisheries which are found at 50 CFR part 679. This has been done to minimize the burden on industry participants and to maintain a program that is similar to the existing voluntary program.
Processing vessels would be required to employ and pay for either one or two (depending on vessel length) NMFS-certified observers obtained from a third-party NMFS-permitted observer provider company while participating in the Pacific Coast groundfish fishery.
Due to biological concerns, a no observer alternative was not considered. If the whiting allocation is greatly exceeded or there are substantial discards of other species that go unmeasured, the long-term biological stability and yield of whiting or incidentally-caught species may be affected. Without accurate and timely information, the risk of error associated with fishery management decisions will increase.
Under the status quo (Alternative 1), NMFS would continue to administer the program; vessels would continue to voluntarily carry NMFS-trained observers; businesses that are certified as observer providers for the Federal groundfish fishery off Alaska would continue to pay the direct costs associated with carrying the observers.
The Council's April 1999 recommendation was to require each processing vessel to carry one observer (Alternative 2). However NMFS preferred option, Alternative 3, would require processing vessels equal to or greater than 125 ft (38.1 m) in length to carry two NMFS-certified observers while participating in the groundfish fishery and vessels less than 125 ft (38.1 m) in length would be required to carry one observer. Having two observers on large processors increases the number of observed hauls and is likely to increase the proportion of each individual haul that is sampled. The increased sampling
This proposed rule is necessary to satisfy the standardized bycatch reporting methodology requirements of the 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Act. The Magnuson-Stevens Act at 16 U.S.C. 1853(a)(11) requires each FMP to establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery. Further, at 16 U.S.C. 1853(b)(8), the Magnuson-Stevens Act provides that an FMP may require that one or more observers be carried aboard a vessel of the United States engaged in fishing for species that are subject to an FMP, for the purpose of collecting data necessary for the conservation and management of the fishery. The Pacific Coast Groundfish FMP provides that all catcher/processors and at-sea processing vessels operating in the groundfish fishery may be required to accommodate on board observers for purposes of collecting scientific data. Amendment 13 to the FMP also provides that vessels may be required to pay for observers. This action would require processing vessels to employ and pay for either one or two (depending on vessel length) NMFS-certified observers obtained from a third-party NMFS-permitted observer provider company while participating in the Pacific Coast groundfish fishery. The action also specifies certification and decertification requirements for observers, and defines the responsibilities of observers and processing vessels. To the extent possible, the proposed regulations are consistent with existing regulations for observers in the Alaska groundfish fisheries, which are found at 50 CFR part 679. This has been done to minimize the burden on industry participants and to maintain a program that is similar to the existing voluntary program.
In April 1999, the Council recommended moving forward with certification and decertification requirements for observer providers. Therefore, an alternative to regulations that would have defined the responsibilities of observer providers was included in the National Environmental Policy Act analysis. However, since April 1999, NMFS has discussed an alternative to regulations that would have the responsibilities of contracting companies via the Government contracting process with a statement of work or possibly a contract at “no-cost.” The viability of a government procurement contract needs further research to determine if the contracting process would allow the use of such a mechanism for whiting observers.
Approximately seven WOC groundfish catcher/processors and five mothership processors will be affected by this proposed rulemaking. The Small Business Administration guidelines for fishing firms uses a $3,000,000 gross revenue threshold to separate small from large operations. In the application to any one firm, the $3,000,000 threshold considers income to all affiliated operations. NMFS records indicate that the gross annual revenue for each of the catcher/processor and mothership operations operating in the WOC exceeds $3,000,000 and are therefore not considered small businesses. On average in 1998 the catcher/processor and mothership operations gross revenue was more than $15,000,000.
Between fifteen and twenty catcher vessels participate in the fishery annually, these companies are all assumed to be small businesses. This rulemaking is expected to have minimal impacts on the business that catcher vessels conduct with the mothership processors. A separate final rule to establish an observer program for catcher vessels in the groundfish fishery off Washington, Oregon, and California was published on April 24, 2001 (66 FR 20609).
Projected reporting, recordkeeping and compliance requirements include the information for an appeal to an observer decertification. This is a narrative document that is voluntarily submitted by observers and would not require special skills or training. The proposed rule does not specify recordkeeping requirements for observer providers; however NMFS assumes that information needed for training/briefing registration, monitoring deployment/logistics, scheduling debriefings, and identifying observer harassment, observer safety concerns, or observer performance problems will continue to be voluntarily submitted by observer providers.
A catcher-processor or mothership 125 ft (38.1 m) in length or longer will be required to carry two NMFS-certified observers, and a catcher-processor or mothership shorter than 125 ft (38.1 m) in length will be required to carry one NMFS-certified observer. Requiring this level of observer coverage creates no additional burden to fishery participants than is currently incurred under status quo, because vessels currently carry two observers on a voluntary basis. Mandatory coverage provisions are expected to benefit the observer providers by insuring that each vessel will continue to carry two observers in the future as is currently done. Similarly, observers are expected benefit by having continued employment opportunities. Requiring 2 observers increases the number of hauls sampled and reduces the variability in total catch estimates. This is most important for estimating total catch of infrequently or rare occurring species which are incidentally caught with whiting. If smaller processing vessels (125 ft or less) (38.1 m) should enter the fishery in the future, one observer should be able to provide adequate sampling coverage. Therefore, the additional burden of two observers was determined to be unnecessary.
Because most vessels voluntarily follow the Alaska observer requirements under status quo, maintaining these provisions while participating in the whiting fishery would not create a substantial burden on the individual processing vessels, providing they are in compliance with the Alaska regulations. The proposed sample station requirements are consistent with those required for the Alaska restricted access fisheries. In recent years, all of the processing vessels that participated in the whiting fishery have had certified observer sample stations for the restricted access fisheries in Alaska, therefore the WOC requirements are not expected to place an additional burden on these vessels.
Requiring observers to adhere to the same standards as they are required to follow when they are deployed in Alaska creates only a small burden on the observers. The annual cost burden on whiting observers is expected to be $240 and are the costs related to the appeals process for certification, suspension and decertification, which are only expected to affect 5 percent of the WOC observers per year.
This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval.
Notwithstanding any other provisions of law, no person is required to respond to nor shall a person be subject to a
The estimated time for observers to obtain college transcripts and prepare a disclosure statement regarding criminal convictions is 15 minutes per response. The estimated time for observers to submit documentary evidence or to petition a rejected certification, suspension or decertification decision is 4 hours per response. Although the proposed rule does not contain requirements specific to the observer contracting companies, these companies do submit information to NMFS. The estimated time for this collection is as follows: training/briefing registration lists: 7 minutes per response; notification of physical examinations: 2 minutes per response; time required for physical exam: 2 hours; lists of projected observer assignments: 7 minutes per response; weekly logistics reports: 7 minutes per response; debriefing registration materials: 7 minutes per response; and reports on observer harassment, safety or performance concerns: 2 hours per response. All estimates of annual response time include time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.
Public comment is sought regarding whether these proposed collections of information are necessary for the proper performance of the functions of the agency and whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS (see
NMFS issued Biological Opinions (BOs) under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the groundfish fishery on chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal, Oregon coastal), chum salmon (Hood Canal, Columbia River), sockeye salmon (Snake River, Odette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south-central California, northern California, and southern California).
This action implements a data collection program and is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat or result in any adverse effects on marine mammals.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposed to amend 50 CFR part 660 as follows:
1. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
2. In § 660.302, add the following definitions “Direct financial interest,”, IAD,” and “Observer Program Office,” in alphabetical order to read as follows:
3. In § 660.303, paragraph (b) is revised as follows:
(b) Any person who is required to do so by the applicable state law must make and/or file, retain, or make available any and all reports (i.e., logbooks, fish tickets, etc.) of groundfish harvests and landings containing all data, and in the exact manner, required by the applicable state law.
4. Section 660.360 is amended as follows:
A. The text of paragraph (c)(1) is added;
B. The text of paragraph (d)(1)(i) is added;
C. Paragraph (d)(3)(ii) is revised;
D. Paragraph (d)(3)(iii) is added;
E. The text of paragraphs (d)(9) and (e) is added;
F. Paragraph (f) is revised;
G. Paragraphs (g),(h), and (i) are removed;
H. Paragraph (j) is redesignated as paragraph (g); and
I. Newly redesignated paragraphs (g)(1)(iii) through (vii) are revised.
The added and revised text reads as follows:
(c)
(d) * * *
(1) * * *
(i)
(3) * * *
(ii)
(iii)
(A) Providing for use by the observer a personal computer in working condition that contains a full Pentium 120 Mhz or greater capacity processing chip, at least 32 megabytes of RAM, at least 75 megabytes of free hard disk storage, a Windows 9x or NT compatible operating system, an operating mouse, and a 3.5-inch (8.9 cm) floppy disk drive. The associated computer monitor must have a viewable screen size of at least 14.1 inches (35.8 cm) and minimum display settings of 600 x 800 pixels. The computer equipment specified in this paragraph (A) must be connected to a communication devise that provides a modem connection to the NMFS host computer and supports one or more of the following protocols: ITU V.22, ITU V.22bis, ITU V.32, ITU V.32bis, or ITU V.34. Processors that use a modem must have at least a 28.8kbs Hayes-compatible modem. The above-specified hardware and software requirements do not apply to processors that do not process groundfish.
(B)
(9)
(i) Ensure that transfers of observers at sea via small boat or raft are carried out during daylight hours, under safe conditions, and with the agreement of observers involved.
(ii) Notify observers at least 3 hours before observers are transferred, such that the observers can collect personal belongings, equipment, and scientific samples.
(iii) Provide a safe pilot ladder and conduct the transfer to ensure the safety of observers during transfers.
(iv) Provide an experienced crew member to assist observers in the small boat or raft in which any transfer is made.
(e)
(1) Vessels are required to procure observer services directly from NMFS when NMFS has determined and given notification that the vessel must carry NMFS staff or an individual authorized by NMFS in lieu of an observer provided by a permitted observer provider.
(2) Vessels are required to procure observer services directly from NMFS and a permitted observer provider when NMFS has determined and given notification that the vessel must carry NMFS staff or individuals authorized by NMFS, in addition to an observer provided by a permitted observer provider.
(f)
(ii)
(iii)
(A) Are employed by an observer provider company permitted pursuant to 50 CFR 679.50 at the time of the issuance of the certification;
(B) Have provided, through their observer provider,:
(
(
(C) Meet all education and health standards as specified in 50 CFR 679.50(i)(2)(i)(A) and (1)(2)(i)(C), respectively; and
(D) Have successfully completed NMFS-approved training as prescribed by the Observer Program.
(
(
(E) Have not been decertified under paragraph (f)(3) of this section, or pursuant to 50 CFR 679.50.
(iv) Agency determinations on observer certification—(A)
(B)
(C)
(v)
(A)
(B)
(C)
(D)
(
(
(
(
(2)
(A) Observers:
(
(
(
(
(
(
(
(B) Provisions for renumeration of observers under this section do not constitute a conflict of interest.
(ii)
(A) Observers must perform their assigned duties as described in the Observer Manual or other written instructions from the Observer Program Office.
(B) Observers must accurately record their sampling data, write complete reports, and report accurately any observations of suspected violations of regulations relevant to conservation of marine resources or their environment.
(C) Observers must not disclose collected data and observations made on board the vessel or in the processing facility to any person except the owner or operator of the observed vessel or processing facility, an authorized officer, or NMFS.
(D) Observers must refrain from engaging in any illegal actions or any other activities that would reflect negatively on their image as professional scientists, on other observers, or on the Observer Program as a whole. This includes, but is not limited to:
(
(
(
(3)
(ii)
(A) When it is alleged that the observer has committed any acts or omissions of any of the following:
(
(
(B) Upon conviction of a crime or upon entry of a civil judgment for:
(
(
(
(iii)
(iv)
(4)
(ii) Appeals decisions shall be in writing and shall state the reasons therefor.
(iii) An appeal must be filed with the Regional Administrator within 30 days of the initial administrative decision denying, suspending, or revoking the observer's certification.
(iv) The appeal must be in writing, and must allege facts or circumstances to show why the certification should be granted, or should not be suspended or revoked, under the criteria in this section.
(v) Absent good cause for further delay, the Regional Administrator (or designated official) will issue a written decision on the appeal within 45 days of receipt of the appeal. The Regional Administrator's decision is the final administrative decision of the Department as of the date of the decision.
(g) * * *
(1) * * *
(iii)
(iv)
(v)
(vi)
(vii)
Natural Resources Conservation Service (NRCS), Department of Agriculture (USDA).
Notice and request for comments.
NRCS is seeking public comments on the draft National Animal Agriculture Conservation Framework (NAACF). NRCS is asking for comments from individuals; the livestock and poultry industries; private consultants; Federal, State, Tribal, and local governments or subgroups thereof; universities and colleges; environmental groups; conservation organizations; and other entities. These comments will assist NRCS in the development of the final NAACF. This National Framework presents an approach for assisting livestock and poultry producers with voluntary, proactive efforts to foster environmentally sound and economically viable production.
Comments must be received by October 27, 2003.
Address all requests and comments to: Angel L. Figueroa, Natural Resources Specialist, Natural Resources Conservation Service, 5601 Sunnyside Avenue, Stop Code 5473, Beltsville, Maryland 20705; phone: 301-504-2225; fax: 301-504-2264, e-mail:
Addressing the conservation needs of America's livestock and poultry producers is a public policy priority. The natural resource conservation provisions of the Farm Security and Rural Investment Act of 2002, Pub. L. 107-171, made clear that producers should receive assistance to improve their operations' environmental performance, address Federal, Tribal, State, and local environmental regulatory requirements, and maintain economically viable operations.
In January 2003, Bruce I. Knight , Chief, NRCS, called for NRCS State Conservationists to work with their State Technical Committees to develop State Frameworks with the objective of meeting the conservation challenges facing animal production agriculture over the next 10 to 15 years. These State Frameworks provided the foundation for the development of the draft NAACF. More importantly, this National Framework recognizes that meaningful action will take place on farms and ranches across the Nation, and that programmatic objectives and concrete goals will be appropriately established at the local level in a manner consistent with the authorized and required purposes and objectives of the underlying conservation programs. This National Framework also envisions that these locally established goals, consistent with the underlying national guidance, will become NRCS objectives through established agency planning processes that build State and national priorities from local input.
The NAACF presents a vision for voluntary, proactive efforts to foster environmentally sound and economically viable livestock and poultry production. It envisions collaboration among Federal, Tribal, State, and local governments; producers; the public; and the private sector to bring the initiative, resources, and commitment to support environmental stewardship in animal agriculture. Four objectives guide this vision:
The draft NAACF identifies six guiding principles that lay the groundwork for approaching environmental stewardship:
•
•
•
•
•
•
NRCS is committed to working effectively with its current partners in the agricultural and environmental communities, and bringing new partners to the table, to develop and implement
In connection with its investigation into a building fire explosion at Kaltech Industries Group, Inc., which injured 31 people, including 14 persons who were not employed by Kaltech on April 25, 2002, the United States Chemical Safety and Hazard Investigation Board announces that it will convene a Public Meeting beginning at 9:30 a.m. local time on September 30, at the Hilton New York, 1335 Avenue of Americas, New York, New York 10018.
The incident originated in space leased by Kaltech Industries Group Inc. in a mixed occupancy building in a densely populated area of the Chelsea district of New York City. Kaltech manufactures architectural quality signs and letters. Kaltech generates hazardous waste during the course of normal operations and is designated as a Large Quantity Waste Generator under the Environmental Protection Agency (EPA) Resource Conservation and Recovery Act (RCRA) of 1976. On the day of the incident Kaltech employees had just finished consolidating hazardous waste from smaller containers into two large drums. The waste was incompatible with each other and an explosion occurred. Key issues involved in this investigation concern hazard communication, hazardous waste handling and municipal oversight.
At the meeting CSB staff will present to the Board the results of their investigation into this incident, including an analysis of the incident together with a discussion of the key findings, root and contributing causes, and draft recommendations.
Recommendations are issued by a vote of the Board and address an identified safety deficiency uncovered during the investigation, and specify how to correct the situation. Safety recommendations are the primary tool used by the Board to motivate implementation of safety improvements and prevent future incidents. The CSB uses its unique independent accident investigation perspective to identify trends or issues that might otherwise be overlooked. CSB recommendations may be directed to corporations, trade associations, government entities, safety organizations, labor unions and others.
After the staff presentation, the Board will allow a time for public comment. Following the conclusion of the public comment period, the Board will consider whether to vote to approve the final report and recommendations. When a report and its recommendations are approved, this will begin CSB's process for disseminating the findings and recommendations of the report not only to the recipients of recommendations but also to other public and industry sectors. The CSB believes that this process will ultimately lead to the adoption of recommendations and the growing body of safety knowledge in the industry, which, in turn, should save future lives and property.
All staff presentations are preliminary and are intended solely to allow the Board to consider in a public forum the issues and factors involved in this case. No factual analyses, conclusions or findings should be considered final. Only after the Board has considered the staff presentation and approved the staff report will there be an approved final record of this incident.
The incident originated in space leased by Kaltech Industries Group Inc. in a mixed occupancy building in a densely populated area of the Chelsea district of New York City. Kaltech manufactures architectural quality signs and letters. Kaltech generates hazardous waste during the course of normal operations and is designated as a Large Quantity Waste Generator under the Environmental Protection Agency (EPA) Resource Conservation and Recovery Act (RCRA) of 1976. On the day of the incident Kaltech employees had just finished consolidating hazardous waste from smaller containers into two large drums. The waste was incompatible with each other and an explosion occurred. Key issues involved in this investigation concern hazard communication, hazardous waste handling and municipal oversight.
The meeting will be open to the public. Please notify CSB if a translator or interpreter is needed, at least 5 business days prior to the public meeting. For more information, please contact the Chemical Safety and Hazard Investigation Board at (202)-261-7600, or visit our Web site at:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand the scope of authority under zone procedures within Subzone 193A on behalf of Cardinal Health 409, Inc., is approved, subject to the FTZ Act and the Board's regulations, including section 400.28.
Pursuant to its authority under the Foreign-Trade Zones Act, of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
1. Foreign status (19 CFR 146.41, 146.42) products consumed as fuel for the petrochemical complex shall be subject to the applicable duty rate.
2. Privileged foreign status (19 CFR 146.41) shall be elected on all foreign merchandise admitted to the subzone, except that non-privileged foreign (NPF) status (19 CFR 146.42) may be elected on refinery inputs covered under HTSUS Subheadings #2709.00.10, #2709.00.20, #2710.11.25, #2710.11.45, #2710.19.05, #2710.19.10, #2710.19.45, #2710.91.00, #2710.99.05, #2710.99.10, #2710.99.16, #2710.99.21 and #2710.99.45 which are used in the production of:
—Petrochemical feedstocks (examiners report, Appendix “C”);
—Products for export;
—And, products eligible for entry under HTSUS # 9808.00.30 and # 9808.00.40 (U.S. Government purchases).
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to add capacity and to expand the scope of manufacturing authority under zone procedures within Subzone 61H at the pharmaceutical manufacturing plant of Baxter Healthcare Corporation in Guayama, Puerto Rico, is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review on bars/wedges and revision of country-wide cash deposit rates.
On March 6, 2003, the Department of Commerce (the Department) published the preliminary results of the administrative reviews of the antidumping duty orders on heavy forged hand tools (HFHTs) from the People's Republic of China (PRC). As the Department rescinded the reviews of the orders on axes/adzes, hammers/sledges, and picks/mattocks on January 3, 2003, imports covered by these preliminary results of review comprise bars over 18 inches in length, track tools and wedges. The period of review (POR) is February 1, 2001, through January 31, 2002. Based on our analysis of the comments received, we have made changes in the margin calculation. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margin for the reviewed firm is listed below in the section entitled
September 10, 2003.
Thomas Martin or Mark Manning, Office of AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-3936 and (202) 482-5253, respectively.
On February 1, 2002, the Department published a notice of opportunity to request administrative reviews of the antidumping orders on HFHTs from the PRC covering the period February 1, 2001 through January 31, 2002 (67 FR 4945). On February 28, 2002, Tianjin Machinery Import & Export Corporation (TMC), Shandong Machinery Import & Export Corporation (SMC), Liaoning Machinery Import & Export Corporation (LMC), and Shandong Huarong Machinery Company (Huarong) requested administrative reviews in the above-referenced orders. Specifically, TMC requested reviews of the hammers/sledges, bars/wedges, picks/mattocks and axes/adzes orders, SMC requested reviews of the hammers/sledges, bars/wedges, and picks/mattocks orders, LMC requested a review of the bars/wedges order, and Huarong requested a review of the bars/wedges order. Based on these requests, the Department initiated administrative reviews of TMC, SMC, LMC, and Huarong under the requested orders on March 20, 2002.
On May 3, 2002, LMC withdrew its request for review of the bars/wedges order. On May 10, 2002, TMC withdrew its requests for review of the hammers/sledges and picks/mattocks orders. On June 7, 2002, SMC withdrew its request for review under the picks/mattocks order. Additionally, on September 26, 2002, TMC withdrew its requests for review of the axes/adzes order and bars/wedges order, and SMC withdrew its requests for review of the bars/wedges and hammers/sledges orders. The Department rescinded these reviews on January 3, 2003.
On March 6, 2003, the Department published the preliminary results of this administrative review.
The products covered by the HFHT orders comprise the following classes or kinds of merchandise: (1) Hammers and sledges with heads over 1.5 kg (3.33 pounds) (hammers/sledges); (2) bars over 18 inches in length, track tools and wedges (bars/wedges); (3) picks and mattocks (picks/mattocks); and (4) axes, adzes and similar hewing tools (axes/adzes).
HFHTs include heads for drilling hammers, sledges, axes, mauls, picks and mattocks, which may or mat not be painted, which may or may not be finished, or which may or may not be imported with handles; assorted bar products and track tools including wrecking bars, digging bars and tampers; and steel woodsplitting wedges. HFHTs are manufactured through a hot forge operation in which steel is sheared to required length, heated to forging temperature, and formed to final shape on forging equipment using dies specific to the desired product shape and size.Depending on the product, finishing operations may include shot blasting, grinding, polishing and painting, and the insertion of handles for handled products. HFHTs are currently provided for under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 8205.20.60, 8205.59.30, 8201.30.00, and 8201.40.60. Specifically excluded from these investigations are hammers and sledges with heads 1.5 kg. (3.33 pounds) in weight and under, hoes and rakes, and bars 18 inches in length and under. The Max Multipurpose Tool is within the scope of the order. (See Notice of Scope Rulings, 58 FR 59991, November 12, 1993.) The HTSUS subheadings are provided for convenience and customs purposes. The written description remains dispositive.
All issues raised in the case and rebuttal briefs by parties to these administrative reviews are addressed in the Issues and Decision Memorandum from Holly A Kuga, Acting Deputy Assistant Secretary, Import Administration, to James J. Jochum, Assistant Secretary for Import Administration (Decision Memorandum), dated concurrently with this notice, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we
As stated in the preliminary results, Huarong is entitled to a separate rate.
In calculating the final results, the Department has made the following changes from the Preliminary Results:
We determine that the following weighted-average percentage margin exists for the period February 1, 2001, through January 31, 2002:
The Department will determine, and the BCBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific assessment rates. Where the importer-specific assessment rate is above
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of bars and wedges from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice, as provided by section 751(a)(1) of the Tariff Act of 1930, as amended (the Act): (1) the cash deposit rates for the reviewed companies will be the rates shown above except that, for firms whose weighted-average margins are less than 0.5 percent, and therefore,
The current PRC-wide cash deposit rates for Axes/Adzes and Bars/Wedges have been revised pursuant to the final results of a redetermination for the eighth administrative review of this proceeding, which can be accessed directly on Import Administration's Web site at
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
These final results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1)).
Notice of application to amend Certificate.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the Certificate should be issued.
Jeffrey Anspacher, Director, Office of Export Trading Company Affairs, International Trade Administration, (202) 482-5131, (this is not a toll free number) or by E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6 (a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five copies, plus two copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104H, Washington DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 84-17A04.”
The Association for Manufacturing Technology's (“AMT”) original certificate was issued on May 19, 1987 (52 FR 19371, May 22, 1987) and lastly amended on March 1, 2002 (67 FR 12524 , March 19, 2002).
A summary of the application for an amendment follows.
(2) Delete the following companies as “Members” of the Certificate:
(3) Change the listings of the existing members as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of three incidental take permits.
On August 20, 2003, NMFS Northwest Region issued three incidental take permits (1391, 1392, and 1393) allowing endangered Pacific salmon and steelhead to be taken incidental to the operation of three hydroelectric projects located on the Columbia River, WA. One permit was issued to Public Utility District No. 1 of Douglas County (Douglas PUD) and two to Public Utility District No. 1 of Chelan County (Chelan PUD). The projects are each licensed by the Federal Energy Regulatory Commission (FERC) and are referred to for licensing purposes as: Rocky Reach Hydroelectric Project (FERC No. 2145, Chelan PUD), Rock Island Hydroelectric Project (FERC No. 943, Chelan PUD), and Wells Hydroelectric Project (FERC No. 2149, Douglas PUD). NMFS issued the permits pursuant to section 10(a)(1)(B) of the Endangered Species Act (ESA) of 1973, as amended. The actions and the species they affect are listed in the
The permits, record of decision and related documents are available for review by appointment at NMFS' Hydropower Division, 525 NE Oregon Street, Suite 500, Portland, OR 97232-2737 (phone: 503-230-5400, fax: 503-230-5435). These documents are also available electronically on the Internet at
Ritchie Graves, Portland, OR (phone: 503-231-6891, e-mail:
The ESA requires that incidental take permits be issued based on a finding that such actions (1) will be incidental to otherwise lawful activity; (2) the applicant will, to the maximum extent practicable minimize and mitigate the impacts of such taking; (3) the applicant will ensure that adequate funding for the plan will be provided; (4) the taking will not appreciably reduce the likelihood of survival and recovery of the species in the wild; and (5) any additional measures that NMFS finds necessary or appropriate for the purposes of the plan will be implemented. Authority to take listed species is subject to conditions set forth in the permits. Permits, modifications, and amendments are issued in accordance with, and are subject to, the ESA and NMFS regulations governing listed fish and wildlife permits (50 CFR Sections 222.301-222.307).
This notice covers the following ESA-listed and unlisted species/evolutionarily significant units (ESUs):
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
NMFS announces the first meeting of the General Advisory Committee to the U.S. Section to the IATTC on September 24, 2003.
The open sessions of the General Advisory Committee meeting will be held on September 24, 2003, from 9 a.m. to 12 p.m. A closed session will be held September 24, 2003, from 1 p.m. to 4 p.m.
The meetings will be held at NMFS, Southwest Regional Office, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90803-4213.
J. Allison Routt at (562) 980-4019.
In accordance with the Tuna Conventions Act, as amended, the Department of State has appointed a General Advisory Committee to the U.S. Section to the IATTC. The U.S. section consists of the four U.S. Commissioners to the IATTC and the representative of the Deputy Assistant Secretary of State for Oceans
The General Advisory Committee to the U.S. Section to the IATTC will meet to receive and discuss information on: (1) the results of the June 2003 Annual Meeting of the IATTC, (2) the upcoming extraordinary meeting of the IATTC scheduled for October 6 and 7, 2003, (3) 2003 IATTC activities, (4) recent and upcoming meetings of IATTC working groups, and (5) Advisory Committee operational issues. The public will have access to the open sessions of the meeting, but there will be no opportunity for public comment.
The General Advisory Committee will go into executive session during the afternoon of September 24, 2003, to discuss sensitive information relating to the U.S. negotiating position on issues on the agenda for the upcoming IATTC meeting and working groups including conservation and management measures for yellowfin and bigeye tuna for 2003, measures to be taken in cases of non-compliance with the IATTC's conservation and management measures, management of fishing capacity, measures to address bycatch and other issues.
The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Allison Routt at (562) 980-4019 at least 5 days prior to the meeting date.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting a limit.
September 10, 2003.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the Bureau of Customs and Border Protection website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://www.otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limit for Category 443 is being increased for swing, carryover and carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 8, 2002, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products produced or manufactured in Korea and exported during the twelve-month period which began on January 1, 2003 and extends through December 31, 2003.
Effective on September 10, 2003, you are directed to increase the current limit for Category 443 in Group II to 344,600 numbers
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Department of Defense.
Notice of open meeting.
The Panel to Review Sexual Misconduct Allegations at the U.S. Air Force held a public meeting to discuss and deliberate on information gathered through fact-finding, research and investigation, and testimony received during the Panel's study. The panel, chaired by former Florida Congresswoman Tillie K. Fowler, is conducting a study of the policies, management and organizational practices and cultural elements of the Air Force Academy that may have been conducive to alleged sexual misconduct, including sexual assaults and rape. A report of findings, conclusions and recommendations will be submitted to the Secretary of Defense and the Chairmen of the Senate and House Armed Services Committees upon completion of the study on September 22, 2003.
This notice is being published after the meeting took place due to administrative difficulties locating an appropriate meeting site and the short time frame Congress allowed for the Panel to complete their review and produce a final report.
Friday, September 5, 2003, 1-3 p.m.
Crowne Plaza Hotel, 1489 Jefferson Davis Hwy, Arlington, VA
Contact Sheila Earle, Designated Federal Official, on 703-602-1515, ext. 110.
Department of Defense.
Notice of advisory committee meeting date changes.
On Thursday, June 19, 2003 (68 FR 36772), the Department of Defense announced closed meetings of the Defense Science Board Task Force on Enabling Joint Force Capabilities. The September 2, 2003, meeting has moved to September 22, 2003, at the Joint Forces Command; and the September 22, 2003, meeting has moved to September 29, at the Institute for Defense Analyses. In addition, the September 8, 2003, meeting has moved to September 9, 2003, as announced on Wednesday, July 23, 2003 (68 FR 43498).
Department of Defense.
Notice.
This notice announces the appointment of the members of the Performance Review Board (PRB) of the Office of the Secretary of Defense, the Joint staff, the U.S. Mission to the North Atlantic Treaty Organization, the Defense Advance Research Projects Agency, the Defense Commissary Agency, the Defense Security Service, the Defense Security Assistance Agency, the Missile Defense Agency, the Defense Field Activities and the U.S. Court of Appeals of the Armed Forces. The publication of PRB membership is required by 5 U.S.C. 4314(c)(4).
The Performance Review Board (PRB) provides fair and impartial review of Senior Executive Service performance appraisals and makes recommendations regarding performance ratings and performance awards to the Secretary of Defense.
July 1, 2003.
Sandra Burrell, Executive and Political Personnel Division, Directorate for Personnel and Security, Washington Headquarters Services, Office of the Secretary of Defense, Department of Defense, The Pentagon, (703) 693-8347.
In accordance with 5 U.S.C. 4314(c)(4), the following executives are appointed to the office of the Secretary of Defense PRB: specific PRB panel assignments will be made from this group. Executives listed will serve a one-year renewable term, effective July 1, 2003.
Department of the Navy, DOD.
Notice of record of decision.
The Department of the Navy announces its decision to homebase 8 fleet squadrons (96 aircraft) and the Fleet Replacement Squadron (FRS) (24 aircraft) at Naval Air Station (NAS) Oceana, Virginia, and 2 fleet squadrons (24 aircraft) at Marine Corps Air Station (MCAS) Cherry Point, North Carolina, and to construct an outlying landing field (OLF) in Washington County, North Carolina.
Mr. Fred Pierson, Atlantic Division Naval Facilities Engineering Command (Code BD32FP), 6506 Hampton Blvd., Norfolk, Virginia 23508-1278, telephone (757) 322-4935.
The text of the entire Record of Decision (ROD) is provided as follows:
Pursuant to section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321,
The Department of the Navy's proposed action is to provide facilities and functions to support homebasing and operation of the Super Hornet aircraft on the East Coast of the United States. These aircraft are planned for assignment to the Atlantic Fleet to replace the F-14 (Tomcat) and earlier model F/A-18 (Hornet) aircraft. The Navy evaluated the environmental consequences associated with aircraft operations, personnel transition, and
ALT 1 proposed homebasing all 10 fleet squadrons and the FRS at NAS Oceana. This alternative included use of Naval Auxiliary Landing Field (NALF) Fentress and the addition of a new OLF to support the field carrier landing practice (FCLP) operations of the Super Hornet squadrons.
ALT 2 proposed homebasing all 10 fleet squadrons and the FRS at MCAS Cherry Point. This alternative included a new OLF to support the FCLP operations of the Super Hornet squadrons because the projected number of FCLP operations of the 10 fleet squadrons and the FRS could not be accommodated at MCAS Cherry Point.
ALT 3 proposed homebasing all 10 fleet squadrons and the FRS at Marine Corps Air Station (MCAS) Beaufort, South Carolina. This alternative included a new OLF to support the FCLP operations of the Super Hornet squadrons because the projected number of FCLP operations of the 10 fleet squadrons and the FRS could not be accommodated at MCAS Beaufort. It also included the transfer of existing Marine Corps aircraft assets at MCAS Beaufort to MCAS Cherry Point in order to accommodate all of the Super Hornet squadrons at MCAS Beaufort.
ALT 4A proposed homebasing six fleet squadrons and the FRS at NAS Oceana and the remaining four fleet squadrons at MCAS Cherry Point. This alternative included continued use of NALF Fentress to support the FCLP operations of the Super Hornet squadrons homebased at NAS Oceana and the addition of a new OLF to support the FCLP operations of the Super Hornet squadrons homebased at both MCAS Cherry Point and NAS Oceana. An OLF located between the two air stations could be used by squadrons at both homebases because of the proximity of the two air stations.
ALT 4B proposed homebasing six fleet squadrons and the FRS at NAS Oceana and the remaining four fleet squadrons at MCAS Beaufort. This alternative included continued use of NALF Fentress and the addition of a new OLF to support the FCLP operations of the Super Hornet squadrons based at NAS Oceana. It also included a new OLF or parallel runway to support the FCLP operations of the Super Hornet squadrons homebased at MCAS Beaufort because the projected FCLP operations of the four fleet squadrons could not be accommodated on the existing runway configuration at MCAS Beaufort.
ALT 5A proposed homebasing six fleet squadrons and the FRS at MCAS Cherry Point and the remaining four fleet squadrons at NAS Oceana. This alternative included a new OLF to support the FCLP operations of Super Hornet squadrons homebased at MCAS Cherry Point because the projected number of FCLP operations of the six fleet squadrons and the FRS could not be accommodated at MCAS Cherry Point.
ALT 5B proposed homebasing six fleet squadrons and the FRS at MCAS Cherry Point and the remaining four fleet squadrons at MCAS Beaufort. This alternative included a new OLF to support the FCLP operations of the MCAS Cherry Point Super Hornet squadrons because the projected number of FCLP operations of the six fleet squadrons and the FRS could not be accommodated there. It also included a new OLF or parallel runway at MCAS Beaufort to support the FCLP operations of the Super Hornet squadrons homebased at MCAS Beaufort because the projected FCLP operations of the four fleet squadrons could not be accommodated on the existing runway configuration at MCAS Beaufort.
ALT 6 proposed homebasing eight fleet squadrons and the FRS at NAS Oceana and the remaining two fleet squadrons at MCAS Cherry Point. This alternative included continued use of NALF Fentress and the addition of a new OLF to support the FCLP operations of the Super Hornet squadrons homebased at both NAS Oceana and MCAS Cherry Point.
The Navy also conducted a thorough OLF siting study using the criteria described in the EIS to identify potential OLF sites to support Super Hornet homebasing. Six OLF site alternatives were evaluated in the EIS. Each site consisted of approximately 30,000 acres with a 2000-acre core area that would contain the runway and support structures. The six alternatives were: Site A, in Perquimans County, North Carolina; Site B, in Bertie County, North Carolina; Site C, in Washington County, North Carolina; Site D, in Hyde County, North Carolina; Site E, in Craven County, North Carolina; and Site F, in Burke County, Georgia.
The no action alternative maintained the status quo at air stations and OLF sites. No new or expanded facilities would be constructed, and there would be no increase in functional capacity at any homebasing site. While the no action alternative does not meet the purpose and need of providing adequate facilities and functions to support the introduction of the Super Hornet squadrons to the East Coast, it served as the baseline for describing and quantifying the impacts associated with the various siting alternatives analyzed in the EIS.
ALT 6, homebasing eight Super Hornet squadrons and the FRS at NAS Oceana and two Super Hornet squadrons at MCAS Cherry Point, is the environmentally preferred alternative. The primary environmental impact associated with homebasing the Super Hornet squadrons are impacts common to all of the homebasing alternatives: an increase in off-station noise exposure. While emissions decrease under all alternatives for NAS Oceana, and increase at other receiving bases, ALT 6 provides additional emission reduction at NAS Oceana. Of the dual-siting alternatives, ALT 6 also maximizes the investment in existing facilities and limits the amount of new construction and construction-related environmental impacts.
Site C was the environmentally preferred OLF site alternative. The estimated population within the greater than 60 Day-night average sound level (DNL) noise zone is lower at Site C than at Sites A, B, E, and F and comparable to that of Site D. Construction of the OLF at Site C will not impact wetlands, threatened and endangered species, or cultural resources. While there would be some impacts to migratory waterfowl, these impacts are mitigable and would be minor. Surrounding land use is primarily agricultural and is considered compatible with aircraft operations.
The EIS evaluated the potential environmental consequences for each of the homebasing alternatives and the OLF sites. Potential significant impacts that could result from ALT 6, including construction of a new OLF at Site C in Washington County are discussed below:
There may be significant impacts related to noise from aircraft operations. Noise levels will increase in the vicinity of NAS Oceana, MCAS Cherry Point, and OLF Site C. Approximately 97,560 people will be within the greater than 65 DNL noise zone around the NAS
Approximately 8,915 people will be within the greater than 65 DNL noise zone around MCAS Cherry Point if the 2 fleet squadrons train at the new OLF, compared to 8,713 under the modeled 2000 noise zone—a 2% increase over existing conditions. The DNL and L
Generally, individuals living in the greater than 65 DNL noise zone may be annoyed and may experience interference with daily activities such as sleep, conversation, television viewing, and outdoor recreation. Homeowners living in the greater than 65 DNL noise zones associated with operations at NAS Oceana, NALF Fentress, and MCAS Cherry Point may incur costs to ensure that sufficient sound attenuation exists within their dwellings to achieve the U.S. Environmental Protection Agency (USEPA) interior noise level goal of 45 dB. There is very little probability that these homeowners will experience long-term physical effects, such as hearing loss, from exposure to the projected noise levels. Recent studies suggest, however, that some individuals, particularly children, may temporarily experience stress or elevated blood pressure from exposure to noise.
Two schools near NAS Oceana and two schools near MCAS Cherry Point are located within the greater than 75 DNL noise zone. Research on the impacts of aircraft noise, and noise in general, on the cognitive abilities of school-aged children suggests that chronic exposure to noise can result in reading deficits, impaired speech perception, and difficulty in solving cognitive problems. Local school authorities may incur costs to ensure that sufficient sound attenuation exists within the schools to achieve the USEPA-recommended interior noise level goal of 45 dB and the American National Standards Institute, Inc., design guideline that background noise levels within most classrooms should not exceed 40 dB for more than 10% of the busiest hour.
At OLF Site C in Washington County, an estimated 141 persons reside within the area encompassed by the 60 DNL noise zone. Normally, noise zones are not depicted below 65 DNL because land uses are generally compatible with aircraft operations below 65 DNL. However, due to the rural nature and low ambient noise level of the OLF site, the projected noise exposure for OLF sites was analyzed for the 60 DNL and greater noise contours. No schools or churches are located within the greater than 60 DNL noise zone at Site C. Aircraft will reach a cruising altitude of 15,000 to 25,000 feet above ground level (AGL) at 5 to 8 miles beyond the OLF. At cruising altitude, sensitive ecological resources or population centers on the ground will not be affected by aircraft operations or noise.
The Navy will acquire approximately 30,000 acres at Site C in Washington County to mitigate noise-related impacts and promote compatible development and land uses in the vicinity of the OLF. Residences within the greater than 60 DNL noise zone will be acquired based on the appraised fair market value of the property at the time the purchase offer is made. While social and family connections to the land may be disrupted, the Navy will consider means for allowing property owners continued use of the land acquired for the OLF, where such use will not interfere with the mission and the safe and efficient operation of the OLF. New commercial or residential development on lands owned by the Navy will be precluded.
Local and state jurisdictions also will be impacted by the loss of tax revenue on property acquired by the Navy for the OLF. Although lands purchased by the Navy will be removed from the local property tax rolls, agricultural lands that are purchased by the Navy will be out-leased where consistent with the mission of the OLF and continue in productive use for these purposes. These agricultural leasehold interests are taxable in North Carolina.
There may be significant impacts from the loss of prime farmland. Approximately 1,700 acres of the core area of Site C is mapped as prime farmland soils. Based on the evaluation of the site using the site assessment criteria from the U.S. Department of Agriculture, Farmland Conservation Impact Rating Form, removal of these soils for construction of an OLF represents a significant loss of prime farmland in Washington County. Where consistent with the mission of the OLF, the Navy will out-lease unused agricultural acreage surrounding the OLF core area to continue productive use for these purposes.
There may be significant impacts on airspace in the area around OLF Site C. Aircraft operations at Site C may affect commercial and private users of airspace in the vicinity of the Plymouth Municipal Airport in Plymouth, North Carolina. Aircraft will not be able to utilize visual flight rules (VFR) when transiting airspace in the area of Site C. Additionally, the Navy will purchase a private airfield and provide relocation assistance to the owner.
There may be disproportionately high and adverse impacts on minority and low-income populations. The greater than 60 DNL noise zone for Site C extends over two census tracts that contain a higher percentage of minority and low-income populations than the respective county of comparison. Based upon this census tract data, the EIS concluded that selection of Site C for an OLF could result in disproportionately high and adverse effects on minority and low-income populations. Use of census tract data produces a conservative estimation of impacts because it assumes a uniform dispersion of the population throughout any given census tract.
The Navy will prepare a site plan for construction of the runway at Site C, with a designated flight operations plan. This will be submitted to the Federal Aviation Administration (FAA) for a final aeronautical review/approval of Site C. Deconfliction of military and civilian air traffic will be accomplished through the establishment of Class D airspace in conjunction with an air traffic control tower at Site C. Air traffic flying in Class D airspace at altitudes of 2,500 feet or below will be required to contact the control tower in accordance with FAA regulations. Air traffic control personnel at the tower will facilitate the sequencing of aircraft inbound to the OLF and provide other air traffic with advisories regarding OLF operations.
The Navy will prepare/update and implement an Air Installations Compatible Use Zones (AICUZ) plan for NAS Oceana, MCAS Cherry Point, and OLF Site C. This will ensure that the local communities understand the
The Navy will develop and implement a Bird/Animal Strike Hazard (BASH) reduction plan for the OLF similar to those that are effectively utilized at various East Coast Navy installations to manage the bird-aircraft collision risk. Use of bird detection radar to evaluate bird movements prior to scheduled FCLP operations will be considered. A BASH reduction plan will be prepared in conjunction with an Integrated Natural Resource Management Plan for the undeveloped portions of Site C.
The Navy will work with Washington and Beaufort counties to minimize the impact of the potential loss of property tax revenue to the greatest extent possible. The Navy will explore strategies for contracting with the local jurisdictions for the provision of necessary services such as utility support and/or maintenance. The Navy will also consider development of mutually beneficial partnerships with Washington and Beaufort counties to enhance the provision of mutually required utility services.
The Navy received comments on the FEIS from 3 Federal agencies, 2 members of Congress and elected state officials, 11 state agencies, 6 local governments, and numerous citizen groups and private citizens. Many of these comments simply stated support for or opposition to the preferred home basing alternatives and the preferred OLF site. Others reiterated comments that were received on the DEIS and responded to in the FEIS. Comments of general support or opposition and comments not raising new substantive issues are not addressed in the ROD. New issues raised in comments received during the 30-day public review period are addressed below.
Several commentators suggested that a supplemental EIS was necessary to address new home basing alternatives and new sites for a new OLF, or to address perceived changes in the scope of the proposed action. The range of home basing alternatives and alternative sites for a new OLF that were analyzed in the EIS represented a reasonable range of alternatives as required by NEPA, allowed the Navy to take the requisite hard look at environmental impacts, and provided a logical basis for a reasoned decision. The purpose and need for the proposed action remained constant—provide facilities and functions to support homebasing and operation of Super Hornet aircraft assigned to the Atlantic Fleet. Therefore, supplemental analysis is unnecessary.
Many of the comments received suggested that an OLF at Site C in Washington County would be damaging to the environment. To the contrary, Federal ownership and management of up to 30,000 acres of land that is currently an agricultural monoculture will create significant opportunities to enhance the environment in and around Site C. The FEIS clearly lays out all anticipated environmental impacts from construction and operation of an OLF.
Several of the comments received suggested that the FEIS understated impacts on wildlife at Site C, including impacts on the nearby Pocosin Lakes National Wildlife Refuge (NWR). Specific concerns raised in comments included impacts from the exclusion of animals/birds on the approximately 30,000-acre area the Navy would acquire, impacts on foraging and roosting waterfowl from aircraft overflights/noise, and overall impacts on the Pocosin Lakes NWR. While these issues were fully addressed in the FEIS, they are summarized here to help ensure the public has a better understanding of the issues.
Because Site C is located in a non-urbanized area within the Atlantic Flyway, the site will have an elevated BASH risk level during the fall and winter months. However, the BASH risk level will be similar to that which is currently being effectively managed at other East Coast military installations.
Significant concentrations of migratory waterfowl occur within five miles of Site C in the vicinity of the Pungo Unit of Pocosin Lakes NWR. The results of a bird radar survey completed at the site indicate that periods of time exist during which a significant number of bird species move through the airspace that will be used by aircraft operating at Site C. However, the overall amount of time when bird concentrations will cause an elevated bird/aircraft strike risk is minimal in comparison to low-risk periods. In addition, the radar survey indicated that daily peaks in bird movements and hourly trends in bird concentrations were easily detectable. Based on these factors, the use of bird detection radar at Site C will greatly reduce the risk posed by birds.
A relatively small portion of the low-level flight tracks at Site C, where flight altitudes will range from 2,000 to 2,500 feet AGL, will be located above or adjacent to significant snow goose and tundra swan loafing and foraging areas located outside of the Pocosin Lakes NWR boundary. Although flight altitudes along this portion of the flight tracks indicate that the BASH risk will not be considered severe, overflights down to 2,000 feet AGL may cause snow geese to flush more frequently from their loafing and feeding sites. The Navy will work with the United States Fish and Wildlife Service (USFWS) and state resource agencies to evaluate site-specific mitigation measures to reduce potential impacts to snow goose populations.
There is a misconception that the Navy would attempt to manipulate land use to discourage waterfowl foraging, loafing, nesting and roosting within all of the approximately 30,000-acre area proposed for acquisition. The Navy has no such intent. As stated in the FEIS, the Navy plans to out-lease significant portions of the land at Site C to allow for continued agricultural production. As clearly evidenced by such use at other military air stations, farming activities are compatible with aircraft operations. The FEIS states that management activities to discourage bird/animal foraging, loafing, nesting and roosting would be implemented in areas immediately adjacent to the airfield and not on the entire 30,000 acres. It is anticipated that the majority of the land acquired at Site C will be out-leased and that there will be no restrictions on the types of crops that can be grown. There are 215,000 acres of agricultural foraging habitat potentially available to waterfowl within 15 miles of the Pocosin Lakes NWR. The construction and operation of an OLF at Site C will directly impact less than 5% of available foraging habitat within 15 miles of the Pocosin Lakes NWR.
The Navy would develop an Integrated Natural Resources Management Plan (INRMP) for Site C. Preparation of the INRMP requires coordination with the USFWS and the North Carolina Wildlife Resources Commission (NCWRC). The INRMP will outline the overall natural resource management objectives of the OLF and ensure that these objectives are designed to protect and preserve the mission of the OLF and all on-station natural resources such as wetlands, water quality and plant and animal species. Cooperation between the USFWS, NCWRC, the Navy and other resource agencies will help to ensure effective management of wildlife and other natural resources at Site C. The INRMP would serve as a guide to maximize natural resources management opportunities consistent with the OLF mission. INRMPs have proven to be effective natural resources management
There will be no low-level over-flight of the Pocosin Lakes NWR and noise levels there are expected to be near ambient levels. The FEIS and the supporting noise study provide a comprehensive analysis of noise impacts from operation of an OLF at Site C. Site-specific noise modeling was conducted at the Pocosin Lakes NWR and DNL noise information was augmented with sound exposure level data to ensure an adequate assessment of noise impacts was provided.
Several of the comments received suggested that an OLF at Site C would result in adverse impacts to the bald eagle and red wolf, both federally listed threatened or endangered species. The Navy, with the assistance of the USFWS, identified endangered animal and plant species that could be affected by the construction and operation of an OLF at all proposed OLF locations, including Site C. The bald eagle is known to occur in the general vicinity of Site C. Site C does not contain nesting, roosting, or perching habitat for the bald eagle; therefore, the presence of bald eagles at Site C will be limited to incidental occurrences by individuals traveling over the site during migration or those that travel greater than average distances from nest sites to forage. Based on the absence of suitable nesting, roosting, or perching habitat, and studies suggesting that noise has a minimal effect on bald eagles, the Navy determined that an OLF at Site C was not likely to adversely affect the bald eagle.
Site C is located in an area important to the growth and recovery of the wild red wolf population. Wild red wolves could potentially occur in Pocosin Lakes NWR, approximately five miles east of the site. Based on a lack of reproductive and shelter habitat, wild red wolves would be considered only transient at Site C, if present. As previously discussed, no low-level flight tracks will be located above Pocosin Lakes NWR, and noise levels in the refuge will increase by an insignificant amount because of aircraft operations at Site C. Therefore, the Navy determined that an OLF at Site C was not likely to adversely affect red wolves occurring in Pocosin Lakes NWR.
Pursuant to the requirements of section 7 of the Endangered Species Act, the Navy consulted with the USFWS on potential impacts to the endangered species present at Site C. The USFWS concurred with the Navy's determination that construction and operations of an OLF in Washington County is not likely to adversely impact endangered species.
One of the comments received criticized the Navy for failing to consider the requirements of the Migratory Bird Treaty Act (MBTA). As discussed in the EIS, construction and operation of an OLF at Site C will not result in the intentional taking of any migratory birds. The Navy is instituting a BASH program in order to minimize any incidental effects from military readiness activities on birds found in the vicinity of Site C, including migratory birds.
Some of the comments received expressed concern that the FEIS did not discuss the exact number of buildings at the OLF site and how much land would be fenced, the future expansion possibilities, and exactly how the Navy plans to manage the OLF site. Specific OLF construction plans will be dictated by the unique characteristics of the site. Although the Navy does not know at this time the exact number of buildings or structures that will be constructed at the OLF or the extent of the area of the OLF that will be enclosed by a fence, the FEIS estimates that about 500 acres of the core area will be directly impacted by construction activities. The Navy took this approach in the FEIS to allow for flexibility in the design and construction of the OLF to ensure minimization of the environmental impacts. The level of analysis in the FEIS is sufficient to allow the Navy to make an informed decision. Management of the OLF site will similarly depend on the characteristics of the site chosen. A fence will enclose the core area. There currently are no plans to construct a fence around the entire 30,000-acre acquisition area. Future expansion of the OLF site currently is not contemplated. However, should the Navy in the future contemplate either expansion of the OLF and/or a significant change in operations at the OLF, preparation of additional analysis under NEPA would be completed prior to any decision to implement such changes.
Many of the comments received suggested that the Navy's BASH analysis was incomplete and inaccurate. The Navy recognized the importance of BASH early in the EIS process and met with FWS and other interested parties on many occasions. The Navy used the Bird Avoidance Model (BAM) to assist in the screening of OLF alternative sites. The Draft and Final EIS included a detailed BASH analysis of all OLF sites and recognized that BASH was a serious concern for some of the sites under consideration. Because of concerns identified with Site C during the EIS process, the Navy conducted several additional site visits between December 2002 and February 2003 and also performed a bird radar survey towards the end of the wintering waterfowl season. The bird radar survey at Site C was one data point relied on in the overall BASH assessment of all OLF sites prepared by an independent contractor with significant BASH program management experience. Additional BASH analysis included an evaluation by the Naval Safety Center's BASH Program Manager and by individuals currently working BASH issues at other naval air facilities. The Navy determined that a comprehensive BASH prevention program can be implemented at Site C and that the proposed flight operations can be conducted there in a safe manner. The BASH analysis process is discussed in detail in Section 12 of the FEIS.
One of the comments received questioned why the cost of a BASH program was not included in the FEIS. Because a BASH plan would be specific to a particular OLF site, the Navy did not attempt to develop cost estimates for BASH efforts at each of the OLF sites. A BASH plan would be developed as part of an overall INRMP for the facility. The Navy recognizes that there will be a cost to implement an INRMP at the OLF site and that those costs would include a comprehensive BASH program.
One of the comments received suggested that two large permanent conservation easements would be impacted by construction and operation of the OLF. The Navy, working with the local Natural Resource Conservation Service office, identified all permanent conservation easements in the vicinity of the OLF site. Although there are conservation easements bordering the noise contours associated with the OLF, there are no known conservation easements in the core area where construction would occur.
One of the comments received suggested that the environmental costs of building an OLF at Site E (Craven County, North Carolina) are grossly overstated, the wetlands at Site E are of marginal value, and that the presence of wetlands on the site should not be used as an excuse for eliminating it from serious consideration. As outlined in the FEIS, approximately 500 acres of wetlands would be filled if an OLF were constructed at Site E. The Navy concurs that wetlands at Site E may be of marginal value and that wetland mitigation opportunities are available at Site E that would result in a significant positive gain to wetland functions and values. For those very reasons Site E
Some of the comments received suggested that the Navy failed to meet its obligations under Executive Order 12898, Federal Actions to Address Environmental Justice in Minority and Low-Income Populations. Executive Order 12898 requires that disproportionately high and adverse impacts to minority and low-income populations be clearly identified and considered by Federal agencies as they propose and execute actions. The Navy did identify and consider environmental justice issues as required by Executive Order 12898. The Navy used data from census tracts and compared race and income data for the entire census tract against regional information in an effort to present a conservative analysis of impacts to minority and low-income populations.
Some of the comments received suggested that the cumulative impacts analysis in the EIS is flawed because the cumulative effects section did not include the environmental impacts on several bombing ranges, such as Piney Island, Brant Island Shoal, Dare County, and Tyrell County, and on airspace designated as a Military Operating Area (MOA). The FEIS analyzed whether the basing of the Super Hornets would change the existing use of those ranges. The conclusion reached in the FEIS was that use of these ranges would remain approximately the same or decrease. Similarly, the Navy does not anticipate any increase in the use of the MOAs because of Super Hornet home basing or a new OLF. Therefore it was not necessary to include those impacts in the cumulative effects analysis.
One of the comments received suggested that an OLF at Site C is inconsistent with the North Carolina Coastal Zone Management Plan. The enforceable policies of the Washington County Coastal Area Management Plan were analyzed in the EIS. The Navy concluded that construction and operation of an OLF at Site C was consistent to the maximum extent practicable with the enforceable policies of the North Carolina Coastal Zone Management Plan. The North Carolina Department of Environmental and Natural Resources concurred with the Navy's determination.
In determining where to base F/A-18E/F Super Hornet aircraft on the East Coast in support of the Atlantic Fleet and where to site an OLF, I considered the following: Operational and readiness requirements; costs associated with the construction, operation, and maintenance of aircraft and facilities; manpower requirements and costs; the analysis of environmental and socioeconomic effects contained in the EIS; relevant federal and state statutes and regulations; and the comments received on the EIS from federal, state, and local agencies, nongovernmental organizations, and individual members of the public. After carefully weighing all of these factors, I have determined that ALT 6, dual-siting Super Hornet aircraft at NAS Oceana (eight fleet squadrons and the FRS) and MCAS Cherry Point (two fleet squadrons) with a new OLF sited in Washington County will best meet the needs of the Navy while minimizing the environmental impacts associated with basing the Super Hornet.
Dual-siting the Super Hornet squadrons between NAS Oceana and MCAS Cherry Point effectively uses the Navy's infrastructure at NAS Oceana, taking advantage of and using the capacity created with the transitioning of the Tomcat and older Hornet aircraft currently stationed there. The geographic proximity of aircraft at NAS Oceana and MCAS Cherry Point allows for the most efficient use of training ranges and OLF capacity by all the Super Hornet squadrons, as well as other aircraft based at both NAS Oceana and MCAS Cherry Point.
ALT 6 will maximize use of existing facilities and limit capital investment requirements at both NAS Oceana and MCAS Cherry Point. Construction at NAS Oceana will involve installation of a Flight Line Electrical Distribution System (FLEDS) on the existing parking apron, reconfiguration of Building 240, and internal renovations to 3 hangars. Construction at MCAS Cherry Point will include installation of a FLEDS, internal renovations to two hangars, and a new training facility, ordnance magazine, and combined medical/dental clinic. ALT 6 provides the lowest one-time construction costs and 30-year life cycle costs of any of the dual-siting alternatives considered.
Implementation of ALT 6 provides some mitigation of noise impacts at NAS Oceana and NALF Fentress. The net impact of aircraft inventory reductions and dual-siting is a 29% reduction in the number of aircraft stationed at NAS Oceana (91 fewer aircraft) compared to baseline year 2000 conditions. The number of aircraft operations at NAS Oceana is projected to decrease by 37%, and the number of operations at Naval Auxiliary Landing Field (NALF) Fentress is projected to decrease by 58%. While homebasing two Super Hornet fleet squadrons at MCAS Cherry Point will increase the number of aircraft stationed at MCAS Cherry Point by 16% (24 additional aircraft) over baseline year 2000 conditions, the number of operations is projected to increase by only 6%.
A new OLF in Washington County is essential not only for support of the Super Hornet operations under ALT 6 but also for surge conditions and future operational needs. As a result of Carrier Strike Group and Expeditionary Strike Group operational requirements generated during operations Enduring Freedom in Afghanistan and Iraqi Freedom, we now understand the critical need for surge capacity for training of multiple carrier air wings. The capacity at NALF Fentress is insufficient to accommodate FCLP requirements of more than one carrier air wing and an FRS simultaneously. The new OLF will enhance the fidelity and quality of carrier landing training under all circumstances and ensure that the Navy's Fleet Response Plan, developed to institutionalize a continuous surge capability of up to six to eight carriers in reaction to world events, can be fully carried out.
The new OLF will accommodate the FCLP operations of the Super Hornet squadrons homebased at both NAS Oceana and MCAS Cherry Point. An estimated 31,650 FCLP operations will be conducted at the new OLF annually. None of the Super Hornet squadrons or personnel will be stationed at the OLF. The facility will be operated primarily through contract personnel. Navy will acquire approximately 23,000 acres in Washington County and 7,000 acres in Beaufort County for construction and operation of a new OLF. An 8,000-foot runway and ancillary facilities will be constructed within a core area. Land surrounding the core area will be owned and controlled by the Navy and managed to promote development and land uses that are compatible with airfield operations. Any resident or business required to relocate will receive relocation assistance as provided for by Federal law and regulations. By acquiring the property, the Navy will be able to ensure that FCLP training can take place in an environment free from limitations due to surrounding populations, thereby providing superior training for Navy aircrews. This is in contrast to the pressure from residential encroachment around NALF Fentress that has resulted in deviations from standard FCLP training. While FCLP training will continue to be conducted at NALF Fentress, encroachment pressures are going to increase, as evidenced by the 44% growth in population within a 5-
An OLF located at Site C in Washington County—an area of low population density with compatible surrounding land uses, minimal environmental impacts, and centrally located between MCAS Cherry Point and NAS Oceana—will give the Navy critical operational flexibility and enhanced responsiveness to meet emergent threats to national security and provide the greatest potential as a valuable training asset for current and future years.
ALT 6 maximizes the use of existing infrastructure at both NAS Oceana and MCAS Cherry Point, achieves economies of scale in support, maintenance, training, and personnel requirements, optimizes effective FCLP training, and reduces or minimizes environmental impacts at all affected locations. It provides the best solution for the Navy, the affected communities, and the taxpayer.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 10, 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 Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
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.
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 her e-mail address
Federal Energy Regulatory Commission, DOE.
Request for Office of Management and Budget Emergency Processing of proposed information collection and request for comments.
In compliance with the requirements of Section 3507(j)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), and 5 CFR 1320.13 of the Office of Management and Budget (OMB) regulations, the Federal Energy Regulatory (Commission) is providing notice of its request to OMB for emergency processing of a proposed collection of information in connection with the “Policy Statement on Natural Gas and Electric Price Indices” issued in Docket No. PL03-3-000. The Commission is soliciting public comment on the specific aspects of the information collection described below.
The Commission and OMB must receive comments on or before September 17, 2003. Because the Commission has requested OMB to process the proposed collection of information in Docket No. PL03-3-000 on an emergency basis, comments on this collection of information should be filed with OMB, attention FERC Desk
Comments may be filed electronically via the eFiling link on the Commission's Web site at
Ted Gerarden, Office of Market Oversight and Investigations, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
This reporting requirement is intended to determine whether the Policy Statement on Natural Gas and Electric Indices, 104 FERC ¶ 61,121 (July 24, 2003), is having the desired effect of encouraging more voluntary reporting of energy trade data to support the formation of accurate, reliable and transparent prices for natural gas and electricity.
Price indices are widely used in bilateral natural gas and electric commodity markets to track spot and forward prices. Uncertainty over industry expectations and government regulatory guidelines, however, has inhibited the number of transactions voluntarily reported to index developers, resulting in a lack of confidence in the reliability of energy price indices. The Commission determined that steps were needed to strengthen confidence in the day-ahead, month-ahead and forward natural gas markets and the day-ahead and forward electricity markets by encouraging comprehensive reporting of energy transactions to price index developers and by encouraging price index developers to provide useful information about liquidity to the industry.
The Policy Statement provided the industry with the Commission's views on desirable characteristics of a price index and the standards companies should use when reporting energy transactions to index developers. In addition, the Commission adopted a “safe harbor” provision for market participants. If the market participants adopt and follow the standards set out in the Policy Statement, the Commission will presume that transaction data submitted to index developers is accurate, timely and submitted in good faith, and the Commission will not penalize inadvertent errors.
The Policy Statement is intended to increase voluntary participation in the price formation process, with the expectation that greater participation in turn will give all industry participants more confidence in the liquidity and transparency of reported prices.
The Commission will monitor developments under the Policy Statement closely over the next several months and assess the degree to which voluntary reporting increases, as well as how index developers and data providers implement the Commission's recommended standards. If voluntary reporting does not increase to the point that indices are sufficiently robust to support a healthy market, or if the standards recommended by the Commission herein are not widely adopted, the Commission will consider further action to ensure accurate, dependable, and trustworthy wholesale price information.
The information collection will help the Commission understand whether the Policy Statement standards are being adopted by the industry and whether market participants are reporting bilateral energy transactions to any greater degree than before the Policy Statement was issued. The information reported will be of a general nature, concerning each respondent's practices with respect to reporting energy trade information. The survey will not seek specific trade data.
The information to be collected will assist the Commission to determine whether the Policy Statement is having a beneficial effect and, if not, what further steps the Commission can take to encourage voluntary participation in price formation or to mandate price reporting. This information will enable Commission staff to carry out the mandate of the Policy Statement to monitor price formation for natural gas and electricity.
The Commission needs to gauge reaction to the Policy Statement more quickly than this in order to determine whether further steps are needed to increase the accuracy, reliability and transparency of price indices before the winter heating season. The industry has made it clear to the Commission that the issue of price formation is of critical importance and that time is of the essence in providing administrative guidance that will improve the current situation.
The survey consists of 20 questions, ten concerning current activity since issuance of the Policy Statement and ten parallel questions concerning activity before the Policy Statement. The survey seeks information about whether the participant engaged in bilateral energy trades and, if so, whether the participant trades in natural gas or electricity (or both). The survey asks the participant whether it is currently reporting trade data and, if not, why not, and whether few, some, many, or all trades were reported.
The survey asks how the participant reports trade data and what elements of trade information are reported. The survey asks the participant if they have adopted the guidelines for trade data reporters in the Policy Statement and, if so, to provide information to the Commission about the standards of conduct adopted. The survey consists primarily of “yes/no” questions or multiple choice questions, but respondents may also provide a narrative response to any question.
The Commission proposes to collect information from the surveyed market participants two times: an initial response due October 1, 2003 and a supplemental response due March 1, 2004. The supplemental response is to determine whether there have been any changes from the initial response. This followup is necessary to determine whether the Policy Statement is having the desired effect of encouraging more voluntary reporting of price information to price index developers.
In this environment, the wholesale markets must be structured to promote competition. Robust price formation is a key element of such markets. Under market-based pricing, the Commission must ensure that wholesale prices for natural gas and electricity are formed in a robust market with sufficient information available to all participants to permit them to judge the liquidity of markets and accuracy of the prices reported.
To enable the Commission to fulfill this duty, the NGA, the NGPA, and the FPA all authorize the Commission to conduct investigations and collect information. In this case, the information relates to whether market participants are helping in price formation. In other words, the survey asks market participants whether they are reporting their energy trades to a developer of commercially available price indices or trading or having trades confirmed on electronic exchanges that generate indices from such electronic trades or confirmations.
The proposed information collection request will be done in a two-stage survey (OMB Control No. to be assigned). The respondents will include producers, generators, marketers, industrial users, and commercial customers. Responses to the information collection request will be voluntary.
The average cost per respondent is $787.77.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) 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) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology
Take notice that on August 29, 2003, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following revised tariff sheets to be effective on October 1, 2003:
CEGT states that the purpose of this filing is to add a new type of discount provision to Section 12.5(a) of the General Terms and Conditions that CEGT may include in a discount rate agreement without constituting a material deviation from CEGT's pro forma service agreement. CEGT states that this new provision would provide for discounts to be based on published index prices for specific receipt or delivery points or other agreed-upon published pricing reference points.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Twenty-Ninth Revised Sheet No. 11A, to become effective October 1, 2003.
CIG states the tariff sheet is being filed to revise the Fuel Reimbursement Percentages applicable to Lost, Unaccounted-For and Other Fuel Gas, Transportation Fuel Gas, and Storage Fuel Gas.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No.1, Fourth Revised Sheet No. 322. The sheet is proposed to become effective September 29, 2003.
CIG states that the tendered tariff sheet clarifies the minimum and maximum receipt and delivery pressure options provided in the Tariff.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Destin Pipeline Company, L.L.C. (Destin) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the revised tariff sheets listed on Appendix A to the filing, to become effective October 1, 2003.
Destin states that purpose of this filing is to revise and clarify its current Supply Pool procedures under Section 2.3 of the General Terms and Conditions. In order to provide shippers on the Destin system with additional flexibility to aggregate their service agreements at a pool point and conform this service to the transactional requirements associated with transportation currently provided under Destin's Rate Schedules FT-1, FT-2 and IT, Destin is revising Section 2.3 and the Pool Balancing Agreement to accommodate this service.
Destin states that copies of this filing on all affected shippers and applicable state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Florida Gas Transmission Company (FGT) tendered for filing to become part of its FERC Gas Tariff, Third Revised Volume No.1, effective October 1, 2003, the following tariff sheets:
FGT states that the tariff sheets listed above are being filed pursuant to Section 27 of the General Terms and Conditions (GTC) of FGT's Tariff which provides for the recovery by FGT of gas used in the operation of its system and gas lost from the system or otherwise unaccounted for. FGT explains that the fuel reimbursement charges pursuant to Section 27 consist of the Fuel Reimbursement Charge Percentage (FRCP), designed to recover current fuel usage on an in-kind basis, and the Unit Fuel Surcharge (UFS), designed to recover or refund previous under or overcollections on a cash basis. FGT states that both the FRCP and the UFS are applicable to Market Area deliveries and are effective for seasonal periods, changing effective each April 1 (for the Summer Period) and each October 1 (for the Winter Period).
FGT states that copies of the filing were mailed to all customers served under the rate schedule affected by this filing and the interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Great Lakes Gas Transmission Limited
Partnership (Great Lakes) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, to be effective October 1, 2003:
Third Revised Sheet No. 0.
Sixth Revised Sheet No. 4A.
Fourth Revised Sheet No. 16A.
Fourth Revised Sheet No. 28.
Second Revised Sheet No. 50L.
Second Revised Sheet No. 50O.
Second Revised Sheet No. 50P.
Eighth Revised Sheet No. 65.
Fourth Revised Sheet No. 88.
Great Lakes states that these tariff sheets are being filed to incorporate administrative and conforming changes to the Great Lakes tariff. Great Lakes also states that none of the proposed changes will affect any of Great Lakes' currently effective rates and charges.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission,
Take notice that on August 29, 2003, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Twenty-Ninth Revised Sheet No. 4, proposed to become effective October 28, 2003.
Iroquois states that the purpose of its filing is to implement the terms of a Stipulation and Settlement Agreement (Settlement) filed concurrently with, and as a part of, the instant tariff filing. In accordance with the Settlement, the revised tariff sheet establishes four annual reductions to Iroquois' rates in the years 2004, 2005, 2006, and 2007, which over the term of the Settlement will reduce Iroquois' transportation rates by approximately 13% (
Iroquois states that copies of its filing were served on all jurisdictional customers and interested state regulatory agencies and all parties to the proceeding.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before the date as indicated below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Petal Gas Storage, L.L.C. (Petal), tendered for filing as part of its FERC Gas Tariff, of the following tariff sheets, with an effective date of October 1, 2003:
Petal states that it submits the instant filing to make ministerial cleanup changes to its tariff, including updating the contact, address and payment information and creating a Title Page. Petal states that the instant filing is purely ministerial in nature and makes no substantive changes to the tariff.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on August 29, 2003, Texas Gas Transmission, LLC (Texas Gas) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, First Revised Sheet No.
Texas Gas states that the tariff sheet is being filed to establish a revised Effective Fuel Retention Percentage (EFRP) under the provisions of Section 16 “Fuel Retention” as found in the General Terms and Conditions of Texas Gas's FERC Gas Tariff, Second Revised Volume No. 1. The revised EFRPs are proposed to be in effect for the annual period November 1, 2003, through October 31, 2004. In general, the overall impact appears to be predominately moderate to significant reductions in the EFRPs as compared to the EFRPs filed on August 30, 2002.
Texas Gas states that copies of the revised tariff sheet are being mailed to all parties on Texas Gas's official service list, to Texas Gas's jurisdictional customers, and to interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1 and Original Volume No. 2 the following revised tariff sheets to become effective October 1, 2003.
Williston Basin states that the revised tariff sheets reflect revisions to the fuel reimbursement current percentage component of the Company's total fuel reimbursement percentages for gathering, storage and transportation services, and to the electric power reimbursement current rate component of the Company's total electric power reimbursement rates for storage and transportation services, pursuant to Williston Basin's Fuel and Electric Power Reimbursement Adjustment Provision contained in Section 38 of the General Terms and Conditions of its FERC Gas Tariff, Second Revised Volume No. 1.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 29, 2003, Wyoming Interstate Company, Ltd. (WIC), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 2, Eleventh Revised Sheet No. 4C, to become effective October 1, 2003.
WIC states that the tendered tariff sheet revises the Columbia Exit Fee Surcharge Credits applicable to WIC's maximum rate firm and interruptible shippers' transportation service on WIC's system.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
a.
b.
c.
d.
e.
f.
g.
h.
i.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Scoping comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
j. The existing project consists of a 16.5-foot-high timber dam at the outlet of Upper Lake (a.k.a. Indian Lake), creating a reservoir of approximately 8 acres at the maximum reservoir elevation of 431 feet (local datum), a channel spillway, a 7,700-foot-long, 8-inch-diameter wood-stave and steel pipeline, a 60-kilowatt generating unit inside the applicant's fish cannery, the generator leads, and appurtenant facilities. No new facilities or changes in operation are proposed.
k.
NorQuest expects to file the PDEA and the license application for the Chignik Hydroelectric Project with the Commission by October 6, 2003. Commission staff will then conduct its environmental review of the proposed project in support of the Commission's decision in this proceeding, utilizing, in part, information contained in the PDEA. Although staff's intent is to prepare an Environmental Assessment, (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, these scoping meetings will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
The purpose of this notice is to inform you of the opportunity to participate in the upcoming scoping meetings and site visit identified below, and to solicit your scoping comments.
l.
The daytime scoping meeting will focus on resource agency concerns, while the evening scoping meeting is primarily for public input. All interested individuals, organizations, and agencies are invited to attend one or both of the meetings, and to assist the staff in identifying the environmental issues that should be analyzed in the EA. The times and locations of these meetings are as follows:
Monday, October 6, 2003, 7 to 9 pm, NorQuest Seafoods Cannery, Chignik, Alaska.
Wednesday October 8, 2003, 1 to 4 pm, Polarconsult Alaska, Inc., 1503 West 33rd Avenue, Suite 310, Anchorage, Alaska.
To help focus discussions, interested parties should review the applicant's draft PDEA, which has been distributed to the parties on the mailing list. Copies of the draft PDEA also will be available at the scoping meetings. The draft PDEA is also available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
At the scoping meetings, the staff will: (1) Summarize the environmental issues identified for analysis in the draft PDEA; (2) solicit from the meeting participants all available information, especially quantifiable data, on the resources at issue; (3) encourage statements from experts and the public on issues that should be analyzed in Commission staff's EA; (4) determine the resource issues to be addressed in the EA; and (5) identify those issues that require a detailed analysis, as well as those issues that do not require a detailed analysis.
The daytime meeting will be recorded by a stenographer and will become part of the formal record of the Commission proceeding on the project. Although there will be no stenographer at the evening meeting, comments at that meeting will be noted and incorporated into the record. Written comments will be accepted at both meetings and can
Individuals, organizations, and agencies with environmental expertise and concerns are encouraged to attend the meetings and to assist Commission staff in defining and clarifying the issues to be addressed in the EA.
m.
Revised Public Utility Filing Requirements Electric Quarterly Reports; Notice of Electric Quarterly Reports Workshop
On April 25, 2002, the Commission issued Order No. 2001,
At the workshop, Commission staff and EQR users will discuss:
• Control area naming conventions;
• Standardized names for trading hubs for the Specific Location fields;
• Product Names and definitions;
• Day-Ahead vs. Real Time reporting;
• An EQR refiling policy;
• Export data function improvements; and
• Other user issues.
This is intended to be a working meeting with considerable discussion of detailed elements of the EQR.
All interested parties are invited to attend. Documents to be discussed at the meeting will be posted on the EQR Users Group and Workshops page on the Commission's Web site at
Those interested in participating are asked to e-mail
Interested parties wishing to file comments may do so under the above-captioned Docket Numbers. Those filings will be available for review at the Commission or may be viewed on the Commission's Web site at
For additional information, please contact Steven Reich of FERC's Office of Market Oversight & Investigations at (202) 502-6446 or by e-mail,
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before November 10, 2003.
Submit your comments, referencing docket ID number OAR-2003-0169, to EPA online using EDOCKET (our preferred method), by e-mail to
Jill Robbins, OAM, 3802R, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-1052; fax number: (202) 565-2551; e-mail address:
EPA has established a public docket for this ICR under Docket ID number OAR-2003-0169, which is available for public viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA within 60 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public
The EPA would like to solicit comments to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) 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,
Annual EPA number of respondents covered by this collection is estimated to be 90. The total respondent burden hours is estimated to be 177,210. At an average cost of $110,067.10 for each submission, the annual cost to the respondents is $9,906,039. The number of respondents may fluctuate in any given year based upon how many contracts are active at the Agency. Nominal capital or start up costs are expected. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before November 10, 2003.
Submit your comments, referencing docket ID number OAR-2003-0170, to EPA online using EDOCKET (our preferred method), by e-mail to
Jill Robbins, OAM, 3802R, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-1052; fax number: (202) 565-2551, e-mail address:
EPA has established a public docket for this ICR under Docket ID number OAR-2003-0170, which is available for public viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA within 60 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When
The EPA would like to solicit comments to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) 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,
Environmental Protection Agency (EPA).
Notice of charter renewal.
The Charter for the Environmental Protection Agency's Children's Health Protection Advisory Committee (CHPAC); will be renewed for an additional two-year period, as a necessary committee which is in the public interest, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2 section 9(c). The purpose of CHPAC is to provide advice and recommendations to the Administrator of EPA on issues associated with development of regulations, guidance and policies to address children's health risks.
It is determined that CHPAC is in the public interest in connection with the performance of duties imposed on the Agency by law.
Inquiries may be directed to Joanne Rodman, Designated Federal Officer, CHPAC, U.S. EPA, OCHP MC 1107A, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
Environmental Protection Agency (EPA).
Notice of request for nominations.
The U.S. Environmental Protection Agency (EPA) invites nominations of qualified candidates to be considered for appointments to fill several vacancies on the Good Neighbor Environmental Board. For this round of recruitment, given the goal of maintaining diverse representation across sectors and geographic locations, tribal representatives and representatives from academic
Submit nomination materials to: Elaine Koerner, Designated Federal Officer, Good Neighbor Environmental Board, EPA Region 9 Office, WTR-4, 75 Hawthorne St., San Francisco, CA 94105, T: 415-972-3437, F: 415-947-3537, e-mail
Elaine Koerner, Designated Federal Officer, Good Neighbor Environmental Board, EPA Region 9 Office, WTR-4, 75 Hawthorne St., San Francisco, CA 94105, T: 415-972-3437, F: 415-947-3537, e-mail
The Good Neighbor Environmental Board meets three times each calendar year at different locations along the U.S.-Mexico border. It was created by the Enterprise for the Americas Initiative Act of 1992. An Executive Order delegates implementing authority to the Administrator of EPA. The Board is responsible for providing advice to the U.S. President and Congress on environmental and infrastructure issues and needs within the States contiguous to Mexico in order to improve the quality of life of persons residing on the U.S. side of the border. The statute calls for the Board to have representatives from U.S. Government agencies; the governments of the States of Arizona, California, New Mexico and Texas; and private organizations with expertise on environmental and infrastructure problems along the southwest border. Board members typically contribute 10-15 hours per month to the Board's work. The Board membership position is voluntary; travel expenses are covered.
The following criteria will be used to evaluate nominees:
• Residence in one of the four U.S. border states.
• Professional knowledge of, and experience with, environmental infrastructure activities and policy along the U.S.-Mexico border.
• Senior level-experience that fills a gap in Board representation, or brings a new and relevant dimension to its deliberations.
• Representation of a sector or group that is involved in border region environmental infrastructure.
• Demonstrated ability to work in a consensus-building process with a wide range of representatives from diverse constituencies.
• Willingness to serve a two-year term as an actively-contributing member, with possible re-appointment to a second term.
Nominees' qualifications will be assessed under the mandates of the Federal Advisory Committee Act, which requires Committees to maintain diversity across a broad range of constituencies, sectors, and groups. Nominations for membership must include a resume describing the professional and educational qualifications of the nominee as well as community-based experience. Contact details should include full name and title, business mailing address, telephone, fax, and e-mail address. A supporting letter of endorsement is encouraged but not required.
Environmental Protection Agency (EPA).
Notice of meeting.
Under the Federal Advisory Committee Act, Public Law 92463, EPA gives notice of a meeting of the National Advisory Council for Environmental Policy and Technology (NACEPT). NACEPT provides advice and recommendations to the Administrator of EPA on a broad range of environmental policy, technology, and management issues.
NACEPT consists of a representative cross-section of EPA's partners and principle constituents who provide advice and recommendations on policy issues and serve as a sounding board for new strategies that the Agency is developing. The Council is a proactive, strategic panel of experts that identifies emerging challenges facing EPA and responds to specific charges requested by the Administrator and the program office managers.
The purpose of the meeting is to discuss the NACEPT Council agenda for FY 04 and agree on appropriate venues to address the topics in a timely and efficient manner. NACEPT will discuss a number of issues, including environmental technology, EPA's Report on the Environment, and emerging trends facing the agency. In addition, NACEPT will report on the work of its subcommittees.
NACEPT will hold a two day public meeting on Wednesday, September 24, 2003, from 9 a.m. to 5 p.m. and Thursday, September 25, 2003, from 9 a.m. to 3 p.m.
The meeting will be held at the Omni Shoreham Hotel, 2500 Calvert Street NW., Washington, DC. The meeting is open to the public, with limited seating on a first-come, first-served basis.
Requests to make oral comments or provide written comments to the Council should be sent to Mark Joyce, Designated Federal Officer using the contact information below. The public is welcome to attend all portions of the meeting.
Mark Joyce, Designated Federal Officer,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency-United States Department of Agriculture Committee to Advise on Reassessment and Transition (EPA-USDA CARAT) will hold a public meeting on October 1-2, 2003. An agenda is being developed and will be posted by September 22, 2003, on EPA's website. This meeting will focus on recent case studies for the following selected commodities: Almonds, carrots,
The meeting will be held on Wednesday, October 1, 2003, from 9 a.m. to 5 p.m., and Thursday, October 2, 2003, from 9 a.m. to 1 p.m.
The meeting will be held at the Hotel Washington, 515 Pennsylvania Avenue NW., Washington, DC. The telephone number to the hotel is (202) 638-5900. The Hotel Washington is approximately 2
Margie Fehrenbach, Office of Pesticide Programs, Mail code 7501C, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 703-308-4775; fax number: 703-308-4776; e-mail address:
This action is directed to the public in general; however, persons may be interested who work in agricultural settings or persons who are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); and the amendments to both of these major pesticide laws by the Food Quality Protection Act (FQPA) of 1996. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An agenda is being developed and will be posted by September 22, 2003, on EPA's website at
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
The Committee to Advise on Reassessment and Transition (CARAT) was established in accordance with the Federal Advisory Committee Act to provide advice and counsel to the Administrator of EPA and the Secretary of Agriculture regarding strategic approaches for pest management planning and tolerance reassessment for pesticides as required by the Food Quality Protection Act of 1996 (FQPA). Through CARAT, EPA and the USDA are working together to ensure smooth implementation of FQPA through use of sound science, consultation with stakeholders, increased transparency, and reasonable transition for agriculture. CARAT is composed of a balanced group of participants from the following sectors: Pesticide user, grower and commodity groups; industry and trade associations; food processors and distributors; environmental/public interest and farmworker groups; Federal, State and Tribal governments; public health organizations; and academia. The CARAT Work Group on Transition was established to identify barriers to the development and adoption by users of new, safer and effective pest management techniques and to formulate recommendations for Federal agency actions that, in partnership with the range of stakeholders, will reduce or eliminate these barriers.
This meeting will be open to the public. Opportunity will be provided for questions and comments by the public. Any person who wishes to file a written statement may do so before or after the meeting. These statements will become part of the permanent record and will be available for public inspection at the address listed under Unit I.B.1.
Environmental protection, Agricultural workers, Agriculture, Chemicals, Foods, Pesticides, Pests, Risk assessment.
Environmental Protection Agency (EPA).
Notice.
The companies that hold the pesticide registrations of products containing dimethoate have submitted requests to modify their technical labels to remove uses on certain crops. These crops consist of apples, grapes, cabbage, collards, spinach, head lettuce, broccoli
Comments, identified by docket identification (ID) number OPP-2003-0263, must be received on or before October 10, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Patrick Dobak, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8180; fax number: (703) 308-7042; e-mail address:
This action is directed to the public in general, nevertheless, a wide range of stakeholders may be interested in dimethoate availability and use on apples, grapes, cabbage, collards, spinach, head lettuce, broccoli raab, fennel, tomatillo, lespedeza, and trefoil, including environmental, human health, and agricultural advocates; the chemical industry, pesticide users, and members of the public interested in the use of pesticides on food. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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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 EPA's 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. 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.
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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 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 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 ID number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
This notice announces the amended registration requests by Cheminova, Inc., BASF, Gowan, Drexel, and Microflo for the deletion of certain uses from their products containing dimethoate. The uses requested for deletion are: Apples, grapes, cabbage, collards, spinach, head lettuce, broccoli raab, fennel, tomatillo, lespedeza, and trefoil. In addition, the registrants waived the 180-day comment period for these use deletions.
Dimethoate is a systemic organophosphate insecticide registered for use on a wide variety of fruit, vegetables, grains, ornamentals, and forestry uses. The registered uses on apples, grapes, cabbage, collards, spinach, and head lettuce have been identified as significantly contributing to the dietary risks associated with human consumption of these crops. The other registered uses included in this notice, broccoli raab, fennel, tomatillo, lespedeza, and trefoil, were added to the requests based on follow-up to previously submitted comments stating that these crops would not be supported for reregistration. This notice announces EPA's receipt of the use deletion requests and a 30-day public comment period to provide input regarding the requests. The Agency believes that the impact to growers on deleting broccoli raab, fennel, tomatillo, lespedeza, and trefoil will be minimal. Although there is significant use on apples, grapes, cabbage, collards, spinach, and head lettuce, the technical registrants have elected to delete these uses in order to address dietary risks from dimethoate. The following table includes the names and registration numbers for the affected products:
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Registrants who choose to withdraw a request for cancellation must submit
The effective date of cancellation will be the date of the cancellation order. The orders effecting these requested cancellations will generally permit a registrant to sell or distribute existing stocks for 1-year after the date the cancellation order is issued. This policy is in accordance with the Agency's statement of policy as prescribed in the
Existing stocks are those stocks of registered pesticide products 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 action. Unless the provisions of an earlier order apply, existing stocks already in the hands of dealers or users can be distributed, sold, or used legally until they are exhausted, provided that such further sale and use comply with the EPA-approved label and labeling of the affected product. Exception to these general rules will be made in specific cases when more stringent restrictions on sale, distribution, or use of the products or their ingredients have already been imposed, as in a Special Review action, or where the Agency has identified significant potential risk concerns associated with a particular chemical.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
Section 405 of the Water Quality Act of 1987 added section 402(p) to the Clean Water Act (CWA) which requires the EPA to develop a phased approach to regulating storm water discharges under the NPDES program. EPA published a final regulation on November 16, 1990, (55 FR 47990) establishing permit application requirements for storm water discharges associated with industrial activity and for discharges from municipal separate storm sewer systems serving a population of 100,000 or more. In the permit application regulations, EPA defined the term “storm water discharge associated with industrial activity” in a comprehensive manner to cover a wide variety of facilities. This definition greatly expanded the number of industrial facilities subject to the NPDES program.
EPA Region 4 published a final NPDES general permit for storm water discharges from construction activities that are classified as “associated with industrial activity” on March 31, 1998, (63 FR 15622) and modified the permit on April 28, 2000 (64 FR 25122). The general permit established Notice of Intent (NOI) requirements, special conditions, requirements to develop and implement storm water pollution prevention plans (SWPPPs), monitoring requirements for discharges to 303(d) listed water bodies, and requirements to conduct site inspections for facilities with discharges authorized by the permit. This notice requests comments on the draft reissuance of the above referenced general permit for discharges of storm water from construction activities “associated with industrial activity” on Indian Country lands where EPA Region 4 is the permit issuing authority.
Comments relative to this draft permit are not required; however, if you wish to submit comments, the comments must be received by November 10, 2003.
Persons wishing to comment on or object to any aspects of this permit reissuance or wishing to request a public hearing, are invited to submit the same in writing within sixty (60) days of this notice to the Water Management Division, United States Environmental Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960, Attention: Ms. Ann Brown.
The proposed NPDES general permit, fact sheet and other relevant documents are on file and may be inspected any time between 9 a.m. and 4 p.m., Monday through Friday at the address shown below. Copies of the draft NPDES general permit, fact sheet or other relevant documents may be obtained by writing the United States Environmental Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960, Attention: Ms. Ann Brown, or calling (404) 562-9288. In addition, copies of the draft NPDES general permit, fact sheet or other relevant documents may be downloaded at
Contact Mr. Floyd Wellborn, telephone number (404) 562-9296, or Mr. Michael Mitchell, telephone number (404) 562-9303, or at the following address: United States Environmental Protection Agency, Region 4, Water Management Division, NPDES and Biosolids Permits Section, Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960.
Pursuant to 40 CFR 124.13, any person who believes any condition of the permit is inappropriate must raise all reasonably ascertainable issues and submit all reasonably available arguments in full, supporting their position, by the close of the comment period. All comments on the proposed NPDES general permit received within the 60-day period will be considered in the formulation of final determinations regarding the permit reissuance.
After consideration of all written comments, the requirements and policies in the Act, and all appropriate regulations, the EPA Regional Administrator will make a
A formal hearing is available to challenge any NPDES permit issued according to the regulations at 40 CFR 124.15, except for a general permit as cited by 40 CFR 124.71. Within 120 days following notice of EPA's final decision for the general permit under 40 CFR 124.15, any interested person may appeal the permit in the Federal Court of Appeals in accordance with section 509(b)(1) of the CWA. Persons affected by a general permit may not challenge the conditions of a general permit as a right in further Agency proceedings. They may instead either challenge the general permit in court, or apply for an individual permit as specified at 40 CFR 122.21, as authorized at 40 CFR 122.28, and then request a formal hearing on the issuance or denial of an individual permit.
Section 405 of the Water Quality Act of 1987 added section 402(p) to the CWA, which directed the EPA to develop a phased approach to regulate the storm water discharges under the National Pollutant Discharge Elimination System (NPDES) program. EPA published a final regulation on the first phase of this program on November 16, 1990, establishing permit application requirements for “storm water discharges associated with industrial activity.” Construction activities that disturb at least five acres of land or are part of a larger plan of development and have point source discharges to waters of the U.S., are defined in 40 CFR 122.26(b)(14)(x) as an “industrial activity.” Upon the advent of the Phase II storm water regulations, these activities became referred to as large construction activities.
Phase II of the storm water program was published in the
1. The organization and numbering of the permit has been changed from the March 1998 (63 FR 15622) permit and the April 2000 (64 FR 25122) permit modification to mirror the organization and numbering of the national permit issued by various other EPA regions in the July 2003
2. Coverage for discharges from small construction activities has been added to the eligibility provisions.
3. The eligibility conditions were clarified regarding facilities discharging to water bodies with Total Maximum Daily Loads (TMDLs).
4. Waivers have been added for qualifying discharges from small construction activities.
5. The permit coverage area has been changed. Today's proposed reissuance no longer covers facilities on non-Indian lands in the State of Florida. It does continue to cover facilities on Indian Country lands within the States of Alabama, Florida, Mississippi and North Carolina.
6. The NOI has been changed from the previous permit. See page 78118 of the December 20, 2002,
Operators of large, five acres and greater, and small, one acre to less than five acres, construction activities on Indian Country lands within the States of Alabama, Florida, Mississippi and North Carolina may be eligible to obtain coverage under this permit for allowable storm water and non-storm water discharges specifically listed in the permit.
The proposed general permit retains the eligibility restrictions from the previous permit. The permit does not regulate post-construction discharges, storm water discharges commingled with non-storm water discharges, except as noted below, discharges previously covered by another NPDES, discharges which cause or contribute to a violation of a water quality standard, discharges which adversely affect threatened or endangered species or their critical habitat, or discharges which adversely affect a listed or proposed to be listed historic place or resource. In addition, the permit includes a new restriction on discharges of storm water to waters for which a TMDL has been developed. Discharges of storm water from large and small construction activities that do not meet the eligibility requirements of the proposed general permit would be required to submit an individual permit application.
To obtain discharge authorization under the proposed general permit, dischargers must submit an NOI, which requires basic information about the facility owner/operator, location and discharge(s). NOI due dates, for construction activities on Indian lands in Alabama, Florida, Mississippi and North Carolina, are as follows:
i. Ongoing construction activities previously covered by an NPDES permit, must submit an NOI within 60 days of the effective date of this permit.
ii. New construction activities, after the effective date of this permit, must submit an NOI at least 48 hours prior to the commencement of any construction activity (
The proposed general permit requires operators covered by the permit to develop and implement a SWPPP. All SWPPPs must be developed in accordance with sound engineering practices and developed specific to the site. The SWPPP must be prepared prior to submission of the NOI.
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action in “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health, or safety, or State, local, or Tribal
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rule making requirements under the Administrative Procedures Act (APA) or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
Issuance of an NPDES general permit is not subject to rule making requirements, including the requirement for a general notice of proposed rule making, under APA section 533 or any other law, and is thus not subject to the RFA requirements.
The APA defines two broad, mutually exclusive categories of agency action—“rules” and “orders.” APA section 551(4) defines rule as “an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or describing the organization, procedure, or practice or requirements of an agency . . . ” APA section 551(6) defines orders as “a final disposition . . . of an agency in a matter other than rule making but including licensing.” APA section 551(8) defines “license” to “include . . . an agency permit . . . ” The APA thus categorizes a permit as an order, which by the APA's definition is not a rule. Section 553 of the APA establishes “rule making” requirements. APA section 551(5) defines “rule making” as “the agency process for formulating, amending, or repealing a rule.” By its terms, section 553 applies only to rules and not to orders, exempting by definition permits.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their “regulatory actions” to refer to regulations. (See,
As discussed in the RFA section of this notice, NPDES general permits are not “rules” by definition under the APA and thus not subject to the APA requirement to publish a notice of proposed rule making. NPDES general permits are also not subject to such a requirement under the CWA. While EPA publishes a notice to solicit public comment on draft general permits, it does so pursuant to the CWA section 402(a) requirement to provide an opportunity for a hearing. Therefore, NPDES general permits are not “rules” for RFA or UMRA purposes.
EPA HQ has reviewed the requirements imposed on regulated facilities resulting from the proposed construction general permit under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, this notice advises interested persons that the Advisory Committee on Diversity for Communications in the Digital Age has been established and is holding its first meeting, which will be held at the Federal Communications Commission in Washington, DC.
September 29, 2003 at 2 p.m. to 4 p.m.
Federal Communications Commission, Commission Meeting Room, Room TW-C305, 445 12th St. SW., Washington, DC 20554.
Jane E. Mago, Designated Federal Officer of the Committee on Diversity, or Maureen C. McLaughlin, Alternate Designated Federal Officer of the Committee on Diversity, 445 12th St. SW., Washington, DC 20554; telephone (202) 418-2030, e-mail
The Diversity Committee was established by the Federal Communications Commission to examine current opportunities and develop recommendations for policies and practices that will further enhance the ability of minorities and women to participate in telecommunications and related industries. The Diversity Committee will tap the expertise of high-level players in the communications sector as well as the financial and technology communities. The Diversity Committee will prepare periodic and final reports to aid the FCC in its oversight responsibilities and its regulatory reviews in this area. In conjunction with such reports and analyses, the Diversity Committee will make recommendations to the FCC concerning the need for any guidelines, incentives, regulations or other policy approaches to promote diversity of participation in the communications sector. The Diversity Committee will also develop a description of best practices within the communications sector for promoting diversity of participation.
Information concerning the activities of the Diversity Committee can be reviewed at the Committee's Web site:
Members of the general public may attend the meeting. The Federal Communications Commission will attempt to accommodate as many people as possible. However,
Petitions for Reconsideration and Clarification has been filed in the Commission's Rulemaking proceedings listed in this Public Notice and published pursuant to 47 CFR 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 these petitions must be filed by September 25, 2003.
Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies.
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 September 24, 2003.
Board of Governors of the Federal Reserve System, September 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 website 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 October 3, 2003.
Board of Governors of the Federal Reserve System, September 4, 2003.
Joint Financial Management Improvement Program (JFMIP).
Notice of document finalization and posting.
The JFMIP is seeking announcement of document finalization and posting for the JFMIP document entitled,“Inventory, Supplies, and Materials System Requirements” dated September 2003. The document is an update of the Federal Financial Management System Requirements (FFMSR) document addressing standard financial requirements for Federal logistics systems. The document is intended to assist agencies when developing, improving or evaluating inventory held for sale, operating materials and supplies, and stockpile materials systems. It provides the baseline functionality that agency systems must have to support agency missions and comply with laws and regulations. This document augments
For release as soon as possible.
The document is available on the JFMIP Web site:
Elvon Lloyd at
The FFMIA of 1996 mandated that agencies implement and maintain systems that comply substantially with FFMSR, applicable Federal accounting standards, and the U.S. Government Standard General Ledger at the transaction level. The FFMIA statute codified the JFMIP financial system requirements documents as a key benchmark that agency systems must meet to substantially comply with systems requirements provisions under FFMIA. To support the provisions outlined in the FFMIA, the JFMIP is updating obsolete requirements documents and publishing additional requirements documents.
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 68 FR 37500-37502, dated June 24, 2003) is amended to reorganize the Office of Equal Employment Opportunity, Office of the Director.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete in its entirety the functional statement for the Office of Equal Employment Opportunity and insert the following:
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 68 FR 47065-47076, dated August 7, 2003) is amended to reorganize the Financial Management Office.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete in its entirety the functional statement of the Financial Management Office and insert the following:
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 68 FR 47065-47076, dated August 7, 2003) is amended to reorganize the Procurement and Grant Office.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete in its entirety the functional statement for the Procurement and Grants Office and insert the following:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Interstate Shellfish Dealer's Certificate” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Trans Fatty Acids in Nutrition Labeling; Nutrient Content Claims and Health Claims” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Administrative Detention and Banned Medical Devices” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Effective September 10, 2003.
Denver Presley, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, rm. 4B-41, Rockville, MD 20857, 301-827-1472.
In FR Doc. 03-20201, appearing on page 47331 in the
1. On page 47332, in the second column, the title “Medicated Feed Mill License Application—21 CFR Part 515 (OMB Control Number 0910-0037)” is corrected to read “Medicated Feed Mill License Application—21 CFR Part 515 (OMB Control Number 0910-0337)”.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is withdrawing approval of a new drug application (NDA) for TEGISON (etretinate) Capsules held by Hoffmann-La Roche, Inc., 340 Kingsland St., Nutley, NJ 07110. Hoffmann-La Roche has requested that approval of this application be withdrawn because the product is no longer marketed, thereby waiving its opportunity for a hearing.
Effective September 10, 2003.
Florine P. Purdie, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
In a letter dated September 23, 1999, Hoffmann-La Roche requested that FDA withdraw approval of NDA 19-369 for TEGISON (etretinate) Capsules, stating that it had discontinued marketing the product. The letter also stated that TEGISON had been replaced by NDA 19-821 for SORIATANE (acitetrin) and that TEGISON was not withdrawn for safety reasons. In FDA's acknowledgment letter of December 30, 2002, the agency informed Hoffmann-La Roche that TEGISON (etretinate) Capsules, a treatment for psoriasis, was removed from the market, under § 314.150(d) (21 CFR 314.150(d)), because it poses a greater risk of birth defects than SORIATANE (acitretin), the product that replaced TEGISON. Acitretin, the active metabolite of etretinate, has a much shorter half-life than etretinate. Thus, acitretin poses a risk of serious birth defects for a shorter period of time than etretinate after a woman stops taking the drug product. Hoffmann-La Roche waived its opportunity for a hearing, provided under § 314.150(a) and (b).
Therefore, under section 505(e) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355(e)) and under authority delegated to the Director, Center for Drug Evaluation and Research (21 CFR 5.105(a)), approval of NDA 19-369, and all amendments and supplements thereto, is hereby withdrawn, effective September 10, 2003.
Distribution of this product in interstate commerce without an approved application is illegal and subject to regulatory action (see sections 505(a) and 301(d) of the act (21 U.S.C. 355(a) and 331(d)).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Following the overview, FDA will discuss proposed amendments to the U.S. performance standard for sunlamp products (21 CFR 1040.20) and certain initiatives of international standards organizations concerning sunlamp products.
In the afternoon, there will be a presentation regarding proposed amendments to the diagnostic x-ray system performance standard (21 CFR 1020.30). Following this, the final topic will be public health considerations of x-ray security screening systems and the development of policies for safe use of these systems.
Background information on the discussion topics will be posted under the Technical Electronic Product Radiation Safety Standards Committee (TEPRSSC) Docket site at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Shirley Meeks, Conference Management Staff, at 301-594-1283, ext. 105, at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8001, Washington, DC 20410, or
Vance Morris, Director, Office of Single Family Program Development, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-2121 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection 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; (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 the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of document availability.
The U.S. Fish and Wildlife Service (Service) announces the availability of the final revised Recovery Plan for the Gila trout (
Persons wishing to receive the Final Revised Recovery Plan can obtain a copy from the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, New Mexico, 87113. The recovery plan will also be available through the Fish and Wildlife Region 2 Web site at:
Field Office Supervisor, New Mexico Ecological Services Field Office, at the above address; telephone 505/346-2525, facsimile 505/346-2542.
Restoring an endangered or threatened animal or plant to the point where it is again a secure, self-sustaining member of its ecosystem is a primary goal of the Service's endangered species program. To help guide the recovery effort, the Service is working to prepare recovery plans for most of the listed species native to the United States. Recovery plans describe actions considered necessary for conservation of the species, establish criteria for downlisting or delisting them, and estimate time and cost for implementing the recovery measures needed.
The Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531
The Gila trout was listed as endangered on March 11, 1967, under the Federal Endangered Species Preservation Act of 1966. Federal status of the fish as endangered was continued under the Endangered Species Act of 1973. The threats facing the survival and recovery of this species are competition and hybridization with non-native trout species (
This recovery plan supersedes the recovery plan finalized for the species in 1993. The plan includes new scientific information about the species gathered since 1993 and provides objectives and actions needed to downlist then delist the species. Recovery activities designed to achieve these objectives include establishing additional populations of Gila trout; protecting existing populations and habitat; continuing to obtain information needed to address conservation issues; and continuing to provide information and coordinating recovery of this species. The recovery plan provides criteria for delisting and reclassification (
The authority for this action is Section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Bureau of Land Management, Interior.
Notice of segregation.
An application has been filed for the conveyance of the Federally owned mineral interest in the tract of land described below in this notice. Publication of this notice temporarily segregates the mineral interests in the public lands covered by the application from appropriation under the mining and mineral leasing laws while the application is being processed.
Kathy Gary, Bureau of Land Management, California State Office, 2800 Cottage Way, Sacramento, California 95825, (916) 978-4677.
The tract of land referred to above in this notice consists of 160 acres of land, situated in Los Angeles County, and is described as follows:
Under certain conditions, section 209(b) of the Federal Land Policy and Management Act of 1976 authorizes the sale and conveyance of the Federally owned mineral interests in land when the non-mineral, or so called “surface” interest in the land is not Federally owned. The objective is to allow consolidation of the surface and mineral interests when either one of the following conditions exist: (1) There are no known mineral values in the land; or (2) where continued Federal ownership of the mineral interests interferes with or precludes appropriate non-mineral development and such development is a more beneficial use of the land than mineral development.
In accordance with section 209(b) of the 1976 Act, on December 10, 2002, an application was filed for the sale and conveyance of the Federally owned mineral interest in the above-described tract of land. Publication of this notice segregates, subject to valid existing rights, the Federally owned mineral interests in the public lands referenced above in this notice from appropriation under the general mining and mineral leasing laws, while the application is being processed to determine if either one of the two specified conditions exists and, if so, to otherwise comply with the procedural requirements of 43 CFR part 2720. The segregative effect shall terminate: (i) Upon issuance of a patent or other document of conveyance as to such mineral interests; (ii) upon final rejection of the application; or (iii) two years from the date of filing the application, whichever occurs first.
43 CFR 2720.1-1(b).
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0071).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under 30 CFR part 203, “Relief or Reduction in Royalty Rates.” This notice also provides the public a second opportunity to comment on the paperwork burden of these regulatory requirements.
Submit written comments by October 10, 2003.
You may submit comments either by fax (202) 395-6566 or e-mail (
Arlene Bajusz, Rules Processing Team, (703) 787-1600. You may also contact Arlene Bajusz to obtain a copy, at no cost, of the regulations that require the subject collection of information.
Section 302 of the DWRRA provides that new production from a lease in existence on November 28, 1995, in a water depth of at least 200 meters, and in the GOM west of 87 degrees, 30 minutes West longitude qualifies for royalty suspension in certain situations. To grant a royalty suspension, the Secretary must determine that the new production or development would not be economic without royalty relief. The Secretary must then determine the volume of production on which no royalty would be due in order to make the new production from the lease economically viable. This determination is done on a case-by-case basis. By regulation published January 15, 2002, (67 FR 1862) production from leases in the same water depth and area issued after November 28, 2000, also can qualify for royalty suspension in addition to any that may be included in their lease terms.
In addition, Federal policy and statute require us to recover the cost of services that confer special benefits to identifiable non-Federal recipients. The Independent Offices Appropriation Act (31 U.S.C. 9701), OMB Circular A-25, and the Omnibus Appropriations Bill (Pub. L. 104-133 110 Stat. 1321, April 26, 1996) authorize MMS to collect these fees to reimburse us for the cost to process applications or assessments.
Regulations at 30 CFR part 203 implement these statutes and policy and require respondents to pay a fee to request royalty relief. 30 CFR 203.3 states that, “We will specify the necessary fees for each of the types of royalty-relief applications and possible MMS audits in a Notice to Lessees. We will periodically update the fees to reflect changes in costs as well as provide other information necessary to administer royalty relief.”
The MMS uses the information to make decisions on the economic viability of leases requesting a suspension or elimination of royalty or net profit share. These decisions have enormous monetary impact on both the lessee and the Federal Government. Royalty relief can lead to increased production of natural gas and oil, creating profits for lessees and royalty and tax revenues for the Government that they might not otherwise receive. We could not make an informed decision without the collection of information required by 30 CFR part 203.
(a) Application and audit fees. The total annual estimated cost burden for these fees is $189,000 (refer to burden chart).
(b) Cost of reports prepared by independent certified public accountants. Under § 203.81, a report prepared by an independent certified public accountant (CPA) must accompany the application and post-production report (expansion project, short form, and preview assessment applications are excluded). The OCS Lands Act applications will require this report only once; the DWRRA applications will require this report at two stages—with the application and post-production development report for successful applicants. MMS estimates approximately five submissions each year at an average cost of $45,000 per report, for a total estimated annual cost burden of $225,000.
To comply with the public consultation process, on April 21, 2003, MMS published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0006).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns the paperwork requirements in the regulations under 30 CFR part 256, “Leasing of Sulphur or Oil and Gas in the Outer Continental Shelf.”
Submit written comments by November 10, 2003.
Mail or hand carry comments to the Department of the Interior; Minerals Management Service; Attention: Rules Processing Team; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170-4817. If you wish to e-mail comments, the address is:
Arlene Bajusz, Rules Processing Team, (703) 787-1600. You may also contact Arlene Bajusz to obtain a copy, at no cost, of the regulations that require the subject collection of information.
The Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, authorizes Federal agencies to recover the full cost of services that provide special benefits. Under the Department of the Interior's (DOI) policy implementing the IOAA, MMS is required to charge the full cost for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those that accrue to the public at large. Instruments of transfer of a lease or interest are subject to cost recovery, and MMS regulations specify filing fees for these transfer applications.
The MMS uses the information required by 30 CFR part 256 to determine if applicants are qualified to hold leases in the OCS. Specifically, MMS uses the information to:
• Verify the qualifications of a bidder on an OCS lease sale. Once the required information is filed with MMS, a qualification number is assigned to the bidder so that duplicate information is not required on subsequent filings.
• Develop the semiannual List of Restricted Joint Bidders. This identifies parties ineligible to bid jointly with each other on OCS lease sales, under limitations established by the EPCA.
• Ensure the qualification of assignees. Once a lease is awarded, the transfer of a lessee's interest to another qualified party must be approved by an MMS regional director.
• Obtain information and nominations on oil and gas leasing, exploration, and development and production. Early planning and consultation ensure that all interests and concerns are communicated to us for future decisions in the leasing process.
• Document that a leasehold or geographical subdivision has been surrendered by the record title holder.
• Verify that lessees have adequate bonding coverage. Respondents must submit their bonds certification forms: “Form MMS-2028, Outer Continental Shelf Mineral Lessee's and Operator's Bond,” and Form MMS-2028A, “Outer Continental Shelf Mineral Lessee's and Operator's Supplemental Plugging & Abandonment Bond.” The MMS uses these documents to hold the surety libel for the obligations and liability of the principal/lessee or operator.
We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR parts 250, 251, and 252. No items of a sensitive nature are collected. Responses are mandatory or required to obtain or retain a benefit.
Agencies must also estimate the “non-hour cost” burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
Judicial Conference of the United States, Advisory Committee on Rules of Appellate Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Appellate Procedure will hold a one-day meeting. The meeting will be open to public observation but not participation.
November 7, 2003.
8:30 a.m. to 5 p.m.
Loews Coronado Bay Hotel, 4000 Coronado Bay Road, Coronado, CA.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States, Advisory Committees on Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.
Notice of proposed amendments and open hearings.
The Advisory Committees on Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure have proposed amendments to the following rules:
The text of the proposed rule amendments and the accompanying Committee Notes can be found at the United States Federal Courts' Home Page at
The Judicial Conference Committee on Rules of Practice and Procedure submits these amendments for public comment. All comments and suggestions with respect to them must be placed in the hands of the Secretary as soon as convenient and, in any event, not later than February 16, 2004. All written comments on the proposed rule amendments can be sent by one of the following four ways: electronic mail via the Internet at
Public hearings are scheduled to be held on the amendments to:
• Appellate Rules in Los Angeles, California, on January 20, 2004, and in Washington, DC, on January 26, 2004;
• Bankruptcy Rules in Washington, DC, on January 30, 2004;
• Civil Rules in Houston, Texas, on January 9, 2004; and
• Criminal Rules in Atlanta, Georgia, on January 23, 2004.
Those wishing to testify must contact the Secretary at the address above in writing at least 30 days before the hearing.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Charles Vogel Enterprises, Inc. (“Vogel”), pursuant to subsections 309(b) and (d) of the Clean Water Act (“CWA”), 33 U.S.C. 1319(b), (d), to obtain injunctive relief from and impose civil penalties against Vogel for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring Vogel to pay a civil penalty and to cooperate fully with the United States in its further proceedings against the remaining Defendant.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to the Office of the United States Attorney, Western District of Wisconsin, Attention: Leslie K. Herje, P.O. Box 1585, Madison, WI 53701-1585. Please refer to the matter of
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Western District of Wisconsin, P.O. Box 432, Madison, WI 53701-0432. In addition,
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed consent decree in
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this notice. Please address comments to Daniel W. Eckhart, Assistant U.S. Attorney, 80 N. Hughey Avenue, Suite 201, Orlando, Florida and refer to DJ# 90-5-1-4-05140 and civil action number 8:03-cv-1814-T-17MSS.
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Middle District of Florida, 80 North Huhey Avenue, Orlando, Florida. In addition, the proposed Consent Decree may be viewed on the World Wide Web at
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that on August 26, 2003, a proposed Consent Decree in
In this action, the United States sought response costs incurred and to be incurred by the Environmental Protection Agency (“EPA”), pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9607, in connection with the clean-up of the Eastern Diversified Metals Site, located in Schuylkill County, Pennsylvania. Further, the United States sought an order, pursuant to Section 106 of CERCLA, requiring defendant Nassau Metals Corporation (“Nassau”) to complete the clean-up of the Site.
Under the Consent Decree, Nassau will implement the remedy selected in the November 21, 2001 Record of Decision for operable unit four. Implementation of this remedy will cost approximately $14 million and will complete the clean-up of the Site. In addition, Nassau will pay future costs incurred by EPA in connection with the Site.
The Department of Justice will receive, for a period of 30 days from the date of this publication, comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The proposed Consent Decree may be examined at the Office of the United States Attorney, 228 Walnut Street, Federal Building, Room 220, Harrisburg, PA 17108; and U.S. EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given that on August 22, 2003, a proposed settlement agreement
The United States' claims in this action arise under Sections 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9606 and 9607, and Section 7003 of the Resource Conservation and Recovery Act, as amended (“RCRA”), 42 U.S.C. 6973, for releases and threatened releases of hazardous substances at the Puente Valley Operable Unit of the San Gabriel Valley Superfund Site, Area 4, Los Angeles County, California, that may present an imminent and substantial endangerment to public health or welfare or the environment.
The settlement agreement resolves Debtor Stoody Company's liability for past costs, future costs, and work associated with the remedial action required for the Site set forth in the Environmental Protection Agency's 1998 Interim Record of Decision.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The settlement agreement may be examined at the Office of U.S. Attorney, Civil Division, 111 South 10th Street, 18th Floor, St. Louis, Missouri or at the U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, California. During the public comment period the settlement agreement also may be examined on the following Department of Justice Web site,
By application of July 17, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice applicable to workers of Agilent Technologies, Inc., Information Technology Division (IT), Colorado Springs, Colorado was signed on June 16, 2003, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The TAA petition was filed on behalf of workers at Agilent Technologies, Inc., Information Technology Division (IT), Colorado Springs, Colorado, engaged in computer consulting services combined with providing information technology. The petition was denied because the petitioning workers did not produce an article within the meaning of Section 222 of the Act.
The petitioner appears to imply that the petitioning worker group should be considered eligible for TAA on the basis that they served as secondary upstream supplier to a trade certified firm.
In fact, in order to be eligible for TAA, workers must produce an article. Further, in order to meet TAA eligibility requirements as secondary upstream suppliers, the worker group must produce a component part of the product that was the basis of the TAA certification for the customer firm.
Only in very limited instances are service workers certified for TAA, namely the worker separations must be caused by a reduced demand for their services from a parent or controlling firm or subdivision whose workers produce an article and who are currently under certification for TAA.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance on April 25, 2003, applicable to workers of the Cannondale Corporation, Bicycle Plant, Bedford, Pennsylvania. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of bicycles, clothing and accessories.
New information shows that Cannondale Corporation, Bicycle Plant became known as Cannondale Bicycle Corporation in May 2003, following bankruptcy in early 2003. Workers separated from employment as the subject firm had their wages reported under a separated unemployment insurance (UI) tax account for Cannondale Bicycle Corporation.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Cannondale Corporation, Bicycle Plant who were adversely affected by increased imports.
The amended notice applicable to TA-W-50,878 is hereby issued as follows:
All workers of Cannondale Corporation, Bicycle Plant, now known as Cannondale Bicycle Corporation, Bedford, Pennsylvania, who became totally or partially separated from employment on or after February 10, 2002, through April 25, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued Amended Certification Regarding Eligibility to Apply for Worker Adjustment Assistance on January 13, 2003, applicable to workers of the Dorr-Oliver Eimco USA, Inc., Salt Lake City, Utah. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of liquid/solid separation equipment.
New information shows that Dorr-Oliver Eimco USA, Inc., formerly known as Eimco Process Equipment Company, was formed following a merger in November 2002 between GL&V/Dorr-Oliver and Eimco Process Equipment Company, a Division of Baker Hughes, Incorporated.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Dorr-Oliver Eimco USA, Inc. who were adversely affected by a shift in production to Mexico, Canada and India.
The amended notice applicable to TA-W-50,405 is hereby issued as follows:
“All workers of Dorr-Oliver Eimco USA, Inc., formerly known as Eimco Process Equipment Company, Salt Lake City, Utah, who became totally or partially separated from employment on or after December 20, 2001, through January 13, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 4, 2003, applicable to workers of Halliburton Formation Evaluation Machine Shop, Alvarado, Texas. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. New information shows that worker separations have occurred involving employees of Jet Research Corporation, Alvarado, Texas, employed at Halliburton Formation Evaluation Machine Shop, Alvarado, Texas.
The Jet Research Corporation employees were engaged in the production and support of logging tools for oil drilling at the Alvarado, Texas location of the subject firm.
The intent of the Department's certification is to include all workers of Jet Research Corporation, Alvarado, Texas working at Halliburton Formation Evaluation Machine Shop, Alvarado, Texas who were adversely affected by increased imports.
Accordingly, the Department is amending the certification to properly reflect this matter.
The amended notice applicable to TA-W-50,908 is hereby issued as follows:
“All workers of Halliburton Formation Evaluation Machine Shop, Alvarado, Texas, including workers of Jet Research Corporation, Alvarado, Texas producing logging tools for oil drilling at Halliburton Formation Evaluation Machine Shop, Alvarado, Texas, who became totally or partially separated from employment on or after February 13, 2002, through March 4, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.”
The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in
On February 5, 2003, the Department of Labor (Department) issued a negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA) for the workers of Murray Engineering, Inc., Complete Design Service, Flint, Michigan (hereafter referred to as Murray Engineering). The determination was based on the investigation's finding that the workers' firm provided industrial design and engineering services and did not produce an article in accordance with Section 222 of the Trade Act of 1974. On February 24, 2003, the Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance for Murray Engineering, Inc., Complete Design Service, Flint, Michigan was published in the
The initial TAA investigation showed that workers at Murray Engineering supplied design and engineering solutions for general manufacturing industries. Workers of Murray Engineering drafted designs and drawings, which were then sent to customers either copied on to a computer disk or CD-Rom, printed out on paper, or electronically. The investigation also revealed that workers of Murray Engineering did not supply components to either a TAA-certified company or an affiliate of a TAA-certified company.
In a letter dated February 19, 2003, the petitioner requested administrative reconsideration of the Department's negative determination. The Department
In the request for reconsideration, the petitioner made three assertions: (1) That the workers produced a product; (2) that the Department may have been misled by part of the company's name, “Complete Design Service,” thinking that the company did not produce a product; and (3) that the Department prematurely concluded the workers were service workers because of the company's name.
In the reconsideration investigation, the Department reviewed the description of the design services provided by the subject firm and determined that, regardless of the mode of conveyance, engineering drawings and schematics prepared by subject firm were services, and not considered production within the meaning of the Trade Act. A review by the Department of the initial investigation and the subsequent reconsideration investigation revealed that no conclusion was drawn based on the company's name. Further, the Department did not rely on the company's name during this voluntary remand investigation.
On April 30, 2003, the petitioner filed a Notice of Appeal in the Court of International Trade. The Department's motion for Voluntary Remand was granted on June 25, 2003.
On August 1, 2003, plaintiff's counsel sent the Department a letter containing arguments for certification. This letter makes two assertions: (1) The Department wrongly determined that the workers of Murray Engineering did not produce an article, and (2) even if the Department was correct in its determination that designs are not an article, the workers of Murray Engineering are adversely affected secondary workers and, as such, are eligible to apply for trade adjustment assistance.
The first issue is whether the workers of Murray Engineering produce an article.
Plaintiff's August 1, 2003 letter relies on
In its remand investigation, the Department contacted Murray Engineering company officials and issued a detailed information request seeking new information as well as clarification of previously submitted information. The main purpose of this review was to ascertain whether the work performed by the petitioning worker group should be construed as production or service.
Information supplied by the company on remand indicates that Complete Design Service does industrial design for general manufacturing industries, applying design & engineering solutions through AutoCAD and Unigraphics by designing intricate custom drawings that are customized to customer specifications. These custom drawings are delivered to the customer by any or all of the following: (a) Printed drawing on paper, (b) CD or computer diskette, (c) electronic mail.
The customer contacts Complete Design Service with the purchase order and instructions of the job to be done. An employee is assigned to the job and is given all of the pertinent information for the job. The employee then begins the design, in AutoCAD or Unigraphics (computer design programs). Periodically throughout the design process, the customer reviews the design-in-progress to assess whether modifications are necessary. When the design is 100% completed, it is saved on the subject firm's network and given to the customer in their required format (
The Department traditionally has deemed designs of any type generated by computer as a service. Electronically generated engineering designs, drawings, and schematics are not tangible commodities. This is supported by the fact that they are not marketable products listed on the Harmonized Tariff Schedule of the United States (HTS), published by the United States International Trade Commission (USITC), Office of Tariff Affairs and Trade Agreements, which describes all articles imported to or exported from the United States.
However, if workers draft designs by hand, the drawings they produce are classified under HTS number 4906.00.00.00 (“Plans and drawings for architectural, engineering, industrial, commercial, topographical or similar purposes, being originals drawn by hand; handwritten text; photographic reproduction on a sensitized paper and carbon copies of the forgoing”). Workers of the subject firm clearly do not fall into this classification, because they produced all designs electronically. That the HTS referenced here is updated periodically and was last published in 2003 supports that the USITC continues to distinguish electronic designs from designs by hand.
Further support that Murray Engineering workers did not produce an article is found in examining what items are subject to a duty. Throughout the Trade Act, an article is often referenced as something that can be subject to a duty. To be subject to a duty on a tariff schedule, an article will have a value that makes it marketable, fungible, and interchangeable for commercial purposes.
However, although a wide variety of tangible products are described as articles and characterized as dutiable in the HTS, informational and design products that historically could be sent in letter form and that currently can be electronically transmitted are not listed in the HTS. Such items are not the type of work products that customs officials inspect and that the Trade Adjustment Assistance program was generally designed to address. Further, informal discussions in the past with several USITC analysts clarified those factors that were used to classify design and drawing work as service instead of production. The USITC industry analysts identified designs as services because the value of the intellectual service is greater than the cost of the materials used to store or transfer it. The analysts also stated that tariffs are based on the cost of the media (such as paper, CD, or computer disk) and not on the value of the service.
In addition, the 2002 edition of the North American Industrial Classification System (NAICS), a standard used by the Department to categorize products and services, designates “establishments primarily engaged in drawing detailed layouts,
Workers of Murray Engineering neither make a product nor transform an existing product into something new and different. The Department thoroughly investigated and could not find any evidence that workers of Murray Engineering produced any articles or that the petitioners transformed anything into something new and different; to the contrary, the evidence cited above supports a conclusion that the Murray workers did not produce an article. Consequently, they are not eligible for certification as production workers.
The second issue is whether the workers of Murray Engineering are adversely-affected secondary workers.
In the August 1, 2003 letter to the Department, the plaintiff asserts that: (1) Murray Engineering was a supplier of designs to a TAA-certified company (Lamb Technicon, Machining Systems, Warren, Michigan) and that such supply is related to the article that was the basis for certification (automated metal removal equipment, transfer lines, and dial transfers); and (2) Lamb Technicon accounted for at least twenty percent of Murray Engineering's production or sales or otherwise must have contributed importantly to the workers' separations. These assertions appear to be provided in an attempt to show that the subject firm workers should be certified as eligible to apply for TAA on the basis of serving as secondary upstream suppliers.
In order to be eligible as secondary suppliers, the petitioning worker group must have produced a component part of the product that is the basis of the TAA certification. Because Murray Engineering did not produce a component part of the automated metal removal equipment produced by Lamb Technicon, they were not secondary suppliers of a TAA-certified facility, as required by the relevant TAA legislation. Even if, as plaintiff asserts, the subject firm workers' design specifications were sometimes mounted or affixed on their customers' manufacturing equipment, such mounting or affixment were not necessary for the equipment to function properly and, thus, were not component parts.
Further, the subject firm's business with Lamb Technicon ceased prior to the beginning of the investigative period. The subject firm workers' petition was dated January 15, 2003 and instituted on January 16, 2003. Therefore, the relevant investigative period is 2001 and 2002. However, according to the subject firm official, Murray Engineering did no business with Lamb Technicon after 1999. Therefore, Lamb Technicon did not account for at least twenty percent of Murray Engineering's production or sales, nor did loss of business with this customer contribute importantly to the subject firm, during the relevant period.
Finally, the petitioner argues that Complete Design Service did the same work as Lamb Technicon and, thus, should be certified for TAA. The workers of Lamb Technicon were certified (TA-W-40,267 & TA-W-40,267A) based on the fact that the workers were engaged in employment related to the production of articles (automated metal removal equipment, transfer lines, and dial transfers). Any workers who may have been engaged in design and engineering solutions at Lamb Technicon were included in the certification because their separation was caused importantly by a reduced demand for their services due to a decline in manufacturing by their subject firm, or a parent firm, or a firm otherwise related to their firm by ownership or control. Additionally, the reduction in demand for services must originate at a production facility whose workers independently meet the statutory criteria for certification, and the reduction must directly relate to the product impacted by imports. These conditions in meeting the TAA eligibility requirements were met for workers in support activities at Lamb Technicon. However, workers at Murray Engineering, Inc., Complete Design Center, Flint, Michigan do not meet these criteria and, thus, may not be certified based on Lamb Technicon's workers' certification.
Under section 222 of the Act, what is relevant to determining whether a worker group is eligible for TAA certification is whether the workers' firm or an appropriate subdivision of the workers' firm produced an article.
The workers' firm in this case is Murray Engineering, Complete Design Service, Flint, Michigan. The evidence clearly establishes that Murray Engineering does not produce, directly or through an appropriate subdivision, an article within the meaning of the Trade Act. Once the Department concludes that the workers' employer was not a firm that produced an article, it must conclude that the workers are not eligible for assistance. Because the petitioners are employees of a firm or subdivision that does not produce an article within the meaning of the Trade Act, they are not eligible for certification.
As the result of the findings of the investigation on voluntary remand, I affirm the original notice of negative determination of eligibility to apply for adjustment assistance for workers and former workers of Murray Engineering, Complete Design Service, Flint, Michigan.
The Department of Labor herein presents the results of an investigation regarding qualification as a secondarily impacted firm, pursuant to the Statement of Administrative Action accompanying the North American Free Trade Agreement (NAFTA) Implementation Act.
In order for an affirmative finding to be made, the following requirements must be met:
(1) The subject firm must be a supplier—such as of components, unfinished or semi-finished goods—to a firm that is directly affected by imports from Mexico or Canada of articles like or directly competitive with articles produced by that firm or shifts in production of such articles to those countries; or
(2) The subject firm must assemble or finish products made by a directly-impacted firm; and
(3) The loss of business with the directly affected firm must have contributed importantly to worker separations at the subject firm.
The investigation revealed that requirements (1) and (3) are met.
Quality Fabricating, Inc., North Huntington, Pennsylvania, produces
Based on this evidence, I determine that workers of Quality Fabricating, Inc., North Huntington, Pennsylvania, qualify as secondarily affected pursuant to the Statement of Administrative Action accompanying the North American Free Trade Agreement Implementation Act.
For further information on assistance under Title I of the Workforce Investment Act (WIA), which may be available to workers included under this determination, contact:
Ms. Diane Bosak, Chief Operating Officer, Team Pennsylvania Workforce Investment Board, 901 North Seventh Street, Harrisburg, Pennsylvania 17120, Telephone: (717) 772-4966, FAX: (717) 783-4660.
By a letter postmarked July 17, 2003, petitioners requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on May 28, 2003 and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) if in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Robert Bosch Tool Corporation, Engineering Center, Louisville, Kentucky, engaged in the production of one-of-a-kind machinery utilized at other affiliated company facilities, was denied because the “contributed importantly” or shift in production group eligibility requirements of Section 222 of the Trade Act of 1974 were not met. Increased imports did not contribute importantly to worker separations at the subject plant and the company did not shift production to a foreign source.
The petitioners produced machinery which is used to manufacture power tools. They allege that they should be certified eligible for TAA because manufacturing divisions of Robert Bosch have shifted production of power tools and/or power tool components to foreign countries.
Despite their indication that they are “secondary workers”, it is not clear from the wording of the reconsideration request whether the petitioners are appealing on the basis of primary or secondary impact.
Given that the initial investigation revealed that there was no import impact or shift of production of the subject firm product (machines for producing power tools) to a foreign source, the petitioning worker group would have to supply a TAA certified affiliated facility in order to be eligible for certification under primary impact. The initial investigation revealed that, although there are three Robert Bosch Corporation facilities that are under active TAA certification, none of these facilities were supplied by the subject facility.
In order to be eligible for TAA certification under secondary impact, the petitioning worker group must either supply a component part of a product that is the basis of a TAA certification for a customer firm (upstream supplier), or assemble or finish a product that is the basis of TAA certification for a customer firm (downstream producer). As the petitioners produce a machine that produces power tool components, they are neither an upstream supplier nor a downstream producer of power tool components.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decisions. Accordingly, the application is denied.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on January 10, 2003, applicable to workers of Tillotson Healthcare Corporation, Dixville Notch, New Hampshire. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of medical examination gloves.
New information shows that Dynarex Corporation purchased Tillotson Healthcare Corporation on January 30, 2003. The subject firms' Dixville Notch, New Hampshire location is now known as North Country Manufacturing. Workers separated from employment at the Dixville Notch, New Hampshire location had their wages reported under a separate unemployment insurance (UI) tax account for North Country Manufacturing.
Information also shows that worker separation occurred at the Rochester, New Hampshire location of Tillotson Healthcare Corporation. The workers provide distribution and warehousing services for the Dixville Notch, New
Accordingly, the Department is amending the certification to properly reflect these matters.
The intent of the Department's certification is to include all workers of Tillotson Healthcare Corporation who were adversely affected by increased imports.
The amended notice applicable to TA-W-50,402 is hereby issued as follows:
“All workers of Tillotson Healthcare Corporation, now known as North Country Manufacturing, Dixville Notch, New Hampshire (TA-W-50,402) and Tillotson Healthcare Corporation, Rochester, New Hampshire (TA-W-50,402A), who became totally or partially separated from employment on or after November 21, 2001, through January 10, 2005, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974.”
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on August 5, 2003 in response to a worker petition which was filed on behalf of workers at Tingley Rubber Corporation, South Plainfield, New Jersey.
An active certification covering the petitioning group of workers is already in effect (TA-W-39,814, as amended). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in
The Department's initial denial of NAFTA-Transitional Adjustment Assistance (NAFTA-6385) for the workers of Ameriphone, Inc., a wholly owned subsidiary of Plantronics, Inc., Garden Grove, California (hereafter “Ameriphone”), was issued on September 11, 2002 and published in the
On March 10, 2003, the Department issued a Notice of Negative Determination Regarding Application for Reconsideration for NAFTA-6385 and published in the
In the request for reconsideration, the petitioner alleged that the workers were engaged in the final phase of production (inspecting, testing and modifying products) as well as prototype design and production. In the reconsideration investigation, the Department found that the articulated functions constituted a negligible portion of the work performed at the subject facility and that the workers were, in fact, service providers.
On voluntary remand, the Department contacted the company and requested detailed information regarding the workers' functions at the subject facility. The newly obtained information revealed that workers at the subject facility were engaged in production. The new information also revealed that a significant portion of the production performed at the subject facility was shifted to Mexico impacting workers at the subject plant.
After careful review of the additional facts obtained on remand, I conclude that a shift of production to Mexico of products like or directly competitive with those produced at the subject firm contributed importantly to the declines in sales or production and to the total or partial separation of workers of Ameriphone, Inc., Garden Grove, California. In accordance with the provisions of the Act, I make the following certification:
“All workers of Ameriphone, Inc., a wholly owned subsidiary of Plantronics, Inc., Garden Grove, California, who became totally or partially separated from employment on or after June 24, 2001 through two years of this certification, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974.”
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
The National Advisory Committee on Ergonomics (NACE) is part of the Secretary's comprehensive approach for reducing ergonomics-related injuries and illnesses in the workplace. The committee was convened for the first time on January 22, 2003. This notice schedules the third NACE meeting. The public is encouraged to attend.
The Committee will meet on Wednesday, September 24, 2003, from 8:30 a.m. until approximately 4 p.m.
The Committee will meet at the Quality Hotel & Suites Courthouse Plaza, 1200 N. Courthouse Road, Arlington, Virginia 22201; Telephone (703) 524-4000. Submit comments, views, or statements in response to this notice to MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, OSHA, U.S. Department of Labor, Room N-3655, 200 Constitution Avenue, NW., Washington, DC 20210. Phone: (202) 693-2144; Fax: (202) 693-1644.
OSHA, Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone: (202) 693-1999.
NACE was chartered for a two-year term on November 27, 2002, to provide advice and recommendations on ergonomic guidelines, research, and outreach and assistance. The committee has met on January 22, 2003, and May 6-7, 2003, in Washington, DC. This notice announces the third meeting of the committee, which will take place in the Washington, DC commuting area on September 24, 2003.
The Committee's working groups on Research, Guidelines, and Outreach and Assistance will meet on the afternoon of September 23. The working groups will report back to the full Committee on September 24th and lead discussions about their respective topics. On the morning of September 24, Assistant Secretary John Henshaw will address the committee. The Committee will continue its discussions of OSHA's approach to addressing ergonomics and hear a presentation about the National Academy of Sciences Ergonomics study.
Written data, views, or comments for consideration by NACE on the various agenda items listed above may be submitted, preferably with copies for the NACE members, to MaryAnn Garrahan at the address listed above. Submissions received by September 17, 2003, will be provided to the committee members for consideration. Requests to make oral presentations to the Committee may be granted if time permits. Anyone wishing to make an oral presentation to the Committee should notify MaryAnn Garrahan at the address noted above. The request should state the amount of time desired, the capacity in which the person will appear, and a brief outline of the content of the presentation.
Persons who request an oral presentation may be allowed to speak, as time permits, at the discretion of the Chair of the Advisory Committee.
Persons with disabilities requiring special accommodations should contact Veneta Chatman (telephone: (202) 693-1912; Fax (202) 693-1635) by September 17, 2003.
A transcript of the meeting will be available for inspection and copying in the OSHA Technical Data Center, Room N-2625 (
This notice was prepared under the direction of John L. Henshaw, Assistant Secretary for Occupational Safety and Health. It is issued under the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), GSA's FACA Regulations (41 CFR part 102-3), and DLMS 3 Chapter 1600.
10 a.m., Thursday, September 11, 2003.
Hearing Room, 9th Floor, 601 New Jersey Avenue, NW., Washington, DC.
Open.
The Commission will consider and act upon the following in open session:
Jean Ellen (202) 434-9950/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
Institute of Museum and Library Services, NFAH.
Notice of meeting.
This notice sets forth the agenda of a forthcoming meeting of the National Museum Services Board. This notice also describes the function of the board. Notice of this meeting is required under the Sunshine in Government Act and regulations of the Institute of Museum and Library Services, 45 CFR 1180.84.
9 a.m.-4:30 p.m. Tuesday, September 16, 2003.
Open.
Omni Shoreham Hotel, Palladian Room, 2500 Calvert Street, NW., (202) 234-0700.
Elizabeth Lyons, Special Assistant to the Director, Institute of Museum and Library Services, 1100 Pennsylvania Avenue, NW., Room 510, Washington, DC 20506, (202) 606-4649.
The National Museum Services Board is established under the Museum Services Act, Title II of the Arts, Humanities, and Cultural Affairs Act of 1976, Pub. L. 94-462. The Board has responsibility for the general policies with respect to the powers, duties, and authorities vested in the Institute under the Museum Services Act.
The meeting on Tuesday, September 16, 2003 will be open to the public. If you need special accommodations due to a disability, please contact: Institute of Museum and Library Services, 1100 Pennsylvania Avenue, NW., Washington, DC 20506—(202) 606-8536—TDD (202) 606-8636 at least seven (7) days prior to the meeting date.
Robert Martin, Ph.D., Director, Institute of Museum and Library Services, John Falk, Ph.D., Director, Institute of Learning Innovation, Robert Coonrod, President, Corporation for Public Broadcasting, Andrea Camp, Senior Fellow, Civil Society Institute (invited).
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License No. DPR-19 and DPR-25 issued to Exelon Generation Company, LLC (EGC, the licensee) for operation of the Dresden Nuclear Power Station (DNPS), Units 2 and 3, located in Grundy County, Illinois.
The proposed amendment would allow the licensee to revise the Updated Final Safety Analysis Report to use the reactor building crane for heavy loads up to a total of 117 tons for removal and reinstallation activities for the reactor shield blocks prior to and during the Units 2 outage D2R18.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR), § 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. The proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
The current DNPS licensing basis does not consider a load drop accident involving the reactor building crane as a credible event for loads up to and including 110 tons. The proposed changes will allow use of the reactor building crane at DNPS during power operations to lift heavy loads up to 117 tons for removal and installation activities for the reactor shield blocks prior to and during the Unit 2 refueling outage (
2. The proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes allow use of the DNPS reactor building crane for a limited duration to lift heavy loads up to a total of 117 tons during removal and installation activities for the reactor shield blocks. The reactor building crane has additional margin for a lifted load of 117 tons with single failure-proof features if a DBE is not assumed. The probability of a DBE during the limited duration of the request is very small. Therefore, the single failure-proof features ensure that the proposed changes provide an equivalent level of safety and will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed changes do not involve a significant reduction in a margin of safety.
The reactor building crane is rated for lifting loads up to 125 tons. The NRC has approved qualification of the DNPS reactor building crane as single failure-proof for loads of up to 110 tons. The proposed change allows use of the crane for a limited duration to lift loads up to 117 tons. Existing safety margins are enhanced when lifting loads up to 117 tons if a DBE is not assumed, and EGC has demonstrated that the probability of a DBE during the limited duration of the request is very small. Therefore, it is concluded that the proposed changes do not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By October 10, 2003, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. Because of the continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment dated August 29, 2003, which is available for public inspection at the Commission's PDR, located at One White Flint North, File Public Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (the Commission) is
The proposed amendment would revise Technical Specification (TS) Limiting Condition for Operation (LCO) 3.6.5.1.d to replace the phrase “Each ice basket” with the phrase “Ice baskets.” This change would make the LCO consistent with associated TS Surveillance Requirement (SR) 4.6.5.1.b.2 and would allow the SR to define the detailed requirements for ice basket weight.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR), § 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the proposed change involve a significant increase in the probability or the consequences of an accident previously evaluated?
I&M proposes to amend the CNP [Cook Nuclear Plant] TS to remove an inconsistency between the LCO that specifies the weight of ice in the ice condenser ice baskets and the associated SR. The existing LCO requires that each ice basket contain a specified minimum weight of ice. However, the SR allows the weight of ice in a sampled basket to be less than that specified in the LCO if the average ice weight in an expanded sample of baskets is at least that specified in the LCO. The proposed change consists of a wording change in the LCO to permit utilization of this existing allowance in the SR. There are no credible accidents initiated by the ice condenser. The relevant accident analyses assume a certain total mass of ice within the ice condenser and no bypassing of ice in the ice condenser. The proposed change does not affect these assumptions. Therefore, neither the probability of an accident nor the consequences of an accident will be significantly increased.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change allows utilization of an existing allowance in the SR for the weight of ice in the ice condenser ice baskets. There are no credible accidents initiated by the ice condenser. The proposed change does not affect the design function of any component, or change any parameter that can initiate an accident. Therefore, no new accident initiators or precursors will be introduced, and the possibility of a new or different kind of accident will not be created.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change does not affect the margins associated with ice condenser ice mass assumed in the accident analyses. These analyses assume a certain total mass of ice in the ice condenser and no bypassing of ice within the ice condenser. The allowance to satisfy the SR by performing additional sampling and averaging of the results does not affect these assumptions. Therefore, there is no significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By October 10, 2003, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or electronically on the Internet at the NRC Web site
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. Because of the continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment dated September 3, 2002, which is available for public inspection at the Commission's PDR, located at One White Flint North, File Public Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The Peer Review Committee For Source Term Modeling will hold a closed meeting on September 16, 17, & 18, 2003, at Sandia National Laboratories (SNL), Albuquerque, NM.
The entire meeting will be closed to public attendance to protect information classified as national security information pursuant to 5 U.S.C. 552b(c)(1).
The agenda for the subject meeting shall be as follows:
The Committee will review SNL activities and aid SNL in development of guidance documents on source terms that will assist the NRC in evaluations of the impact of specific terrorist activities targeted at a range of spent fuel storage casks and radioactive material (RAM) transport packages.
Andrew L. Bates, (telephone 301-415-1963) or Dr. Charles G. Interrante (telephone 301-415-3967) between 7:30 a.m. and 4:15 p.m. (e.t.).
Securities and Exchange Commission (“Commission”).
Notice of application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A), (B), and (C) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act.
Secretary, Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Applicants, 666 Fifth Avenue, 14th Floor, New York, New York 10103.
John Yoder, Attorney-Adviser, at (202) 942-0544, or Todd Kuehl, Branch Chief, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102, (202) 942-8090.
1. Matrix Trust is a UIT registered under the Act. Each Series will be a series of a Trust, each a UIT which is or will be registered under the Act. Matrix, a New York corporation, is registered under the Securities Exchange Act of 1934 as a broker-dealer.
2. Applicants request relief to permit the Series to invest in (a) registered investment companies that are part of the same “group of investment companies” (as that term is defined in section 12(d)(1)(G) of the Act) as the Trust (“Affiliated Funds”), and (b) registered investment companies that are not part of the same group of investment companies as the Trust (“Unaffiliated Funds,” together with the Affiliated Funds, the “Funds”). The Unaffiliated Funds may include UITs (“Unaffiliated Underlying Trusts”) and open-end or closed-end management investment companies (“Unaffiliated Underlying Funds”). Certain of the Unaffiliated Underlying Trusts or Unaffiliated Underlying Funds may be “exchange-traded funds” that are registered under the Act as UITs or open-end management investment companies and have received exemptive relief to sell their shares on a national securities exchange at negotiated prices.
3. Applicants state that the requested relief will benefit unitholders by providing investors with a professionally selected, diversified portfolio of investment company shares through a single investment vehicle.
1. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally. Section 12(d)(1)(C) prohibits an investment company, other investment companies having the same investment adviser, and companies controlled by such investment companies, from acquiring more than 10% of the outstanding voting stock of a registered closed-end management investment company.
2. Section 12(d)(1)(G) provides, in relevant part, that section 12(d)(1) will not apply to securities of a registered open-end investment company or UIT acquired by a registered UIT if the acquired company and the acquiring company are part of the same group of investment companies, provided that certain other requirements contained in section 12(d)(1)(G) are met. Applicants state that they may not rely on section 12(d)(1)(G) because a Series will invest in Unaffiliated Funds in addition to Affiliated Funds.
3. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) to permit a Series to acquire shares of a Fund and to permit a Fund to sell shares to a Series beyond the limits set forth in sections 12(d)(1)(A), (B), and (C).
4. Applicants state that the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A), (B), and (C), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
5. Applicants state that the proposed arrangement will not result in undue influence by a Series or its affiliates over Funds. To limit the control that a Series may have over an Unaffiliated Fund, applicants propose a condition prohibiting the Depositor, the Series, and certain affiliates (individually or in the aggregate) from controlling an
6. As an additional assurance that an Unaffiliated Underlying Fund understands the implications of an investment by a Series under the requested order, prior to a Series' investment in an Unaffiliated Underlying Fund in excess of the limit in Section 12(d)(1)(A)(i), the Series and Unaffiliated Underlying Fund will execute an agreement stating that the board of directors of the Unaffiliated Underlying Fund and the investment adviser to the Unaffiliated Underlying Fund understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. Applicants note that an Unaffiliated Fund may choose to reject an investment from the Series.
7. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. Applicants state that a condition to the order would provide that any sales charges and/or service fees (as those terms are defined in Rule 2830 of the Conduct Rules of the National Association of Securities Dealers (“NASD Conduct Rules”)) charged with respect to Units of a Series will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules. In addition, the trustee to a Series (“Trustee”) will waive or offset fees otherwise payable by the Series in an amount at least equal to any compensation (including fees paid pursuant to a plan adopted by an Unaffiliated Underlying Fund under rule 12b-1 under the Act (“12b-1 Fees”)) received by the Depositor or Trustee, or an affiliated person of the Depositor or Trustee, from an Unaffiliated Fund in connection with the investment by a Series in the Unaffiliated Fund.
8. Applicants state that the proposed arrangement will not create an overly complex fund structure. Applicants note that a Fund will be prohibited from acquiring securities of any investment company in excess of the limits contained in section 12(d)(1)(A). Applicants also represent that a Series' prospectus and sales literature will contain concise, “plain English” disclosure designed to inform investors of the unique characteristics of the trust of funds structure, including, but not limited to, its expense structure and the additional expenses of investing in Funds.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person; (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person; and (c) any person directly or indirectly controlling, controlled by, or under common control with the other person.
2. Applicants state that a Series and Affiliated Funds might be deemed to be under the common control of the Depositor or an entity controlling, controlled by, or under common control with the Depositor. Applicants also state that a Series and a Fund might become affiliated persons if the Series acquires more than 5% of the Fund's outstanding voting securities. In light of these possible affiliations, section 17(a) could prevent a Fund from selling shares to and redeeming shares from a Series.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed arrangement satisfies the standards for relief under sections 17(b) and 6(c) of the Act. Applicants state that the terms of the arrangement are fair and reasonable and do not involve overreaching. Applicants note that the consideration paid for the sale and redemption of shares of the Funds will be based on the net asset values of the Funds. Applicants state that the proposed arrangement will be consistent with the policies of each Series and Fund, and with the general purposes of the Act.
Applicants agree that the requested order will be subject to the following conditions:
1. (a) The Depositor, (b) any person controlling, controlled by, or under common control with the Depositor, and (c) any investment company and any issuer that would be an investment company but for section 3(c)(1) or section 3(c)(7) of the Act sponsored or advised by the Depositor or any person controlling, controlled by, or under common control with the Depositor (collectively, the “Group”) will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Unaffiliated Fund, the Group, in the aggregate, becomes a holder of more than 25% of the outstanding voting securities of the Unaffiliated Fund, the Group will vote its shares in the same proportion as the vote of all other holders of the Unaffiliated Fund's shares.
2. A Series and its Depositor, promoter, and principal underwriter, and any person controlling, controlled by, or under common control with any of those entities (each a “Series Affiliate”) will not cause any existing or potential investment by the Series in shares of an Unaffiliated Fund to influence the terms of any services or transactions between the Series or a Series Affiliate and the Unaffiliated Fund or its investment adviser, sponsor, promoter, and principal underwriter, and any person controlling, controlled by, or under common control with any of those entities.
3. Once an investment by a Series in the securities of an Unaffiliated Underlying Fund exceeds the limits of section 12(d)(1)(A)(i) of the Act, the board of directors of the Unaffiliated Underlying Fund, including a majority of the disinterested directors, will determine that any consideration paid by the Unaffiliated Underlying Fund to a Series or a Series Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Unaffiliated Underlying Fund; (b) is within the range of consideration that the Unaffiliated Underlying Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and
4. No Series or Series Affiliate will cause an Unaffiliated Fund to purchase a security from any underwriting or selling syndicate in which a principal underwriter is the Depositor or a person of which the Depositor is an affiliated person (each an “Underwriting Affiliate”). An offering during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate is considered an “Affiliated Underwriting.”
5. The board of directors of an Unaffiliated Underlying Fund, including a majority of the disinterested directors, will adopt procedures reasonably designed to monitor any purchases by the Unaffiliated Underlying Fund of securities in Affiliated Underwritings once an investment by a Series in the securities of the Unaffiliated Underlying Fund exceeds the limits of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The board of directors will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Series in shares of the Unaffiliated Underlying Fund. The board of directors will consider, among other things, (a) whether the purchases were consistent with the investment objectives and policies of the Unaffiliated Underlying Fund; (b) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (c) whether the amount of securities purchased by the Unaffiliated Underlying Fund in Affiliated Underwritings and the amount purchased directly from Underwriting Affiliates have changed significantly from prior years. The board of directors shall take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities from Affiliated Underwritings are in the best interests of shareholders.
6. An Unaffiliated Underlying Fund shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications, and shall maintain and preserve for a period not less than 6 years from the end of the fiscal year in which any purchase from an Affiliated Underwriting occurred, the first 2 years in an easily accessible place, a written record of each purchase made once an investment by a Series in the securities of an Unaffiliated Underlying Fund exceeded the limits of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the board's determinations were made.
7. Prior to an investment in an Unaffiliated Underlying Fund in excess of the limit in section 12(d)(1)(A)(i), the Series and the Unaffiliated Underlying Fund will execute an agreement stating, without limitation, that the board of directors of the Unaffiliated Fund and the investment adviser to the Unaffiliated Underlying Fund understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Unaffiliated Underlying Fund in excess of the limit in section 12(d)(1)(A)(i), a Series will notify the Unaffiliated Underlying Fund of the investment. At such time, the Series also will transmit to the Unaffiliated Underlying Fund a list of the names of each Series Affiliate and Underwriting Affiliate. The Series will notify the Unaffiliated Underlying Fund of any changes to the list as soon as reasonably practicable after a change occurs. The Unaffiliated Underlying Fund and the Series will maintain and preserve a copy of the order, the agreement, and the list with any updated information for a period not less than 6 years from the end of the fiscal year in which any investment occurred, the first 2 years in an easily accessible place.
8. The Trustee will waive or offset fees otherwise payable by a Series in an amount at least equal to any compensation (including 12b-1 Fees) received by the Depositor or Trustee, or an affiliated person of the Depositor or Trustee, from an Unaffiliated Fund in connection with the investment by a Series in the Unaffiliated Fund.
9. Any sales charges and/or service fees (as those terms are defined in Rule 2830 of the NASD Conduct Rules) charged with respect to Units of a Series will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules.
10. No Fund will acquire securities of any other investment company in excess of the limits contained in section 12(d)(1)(A) of the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 15(f)(1)(A) of the Act.
Secretary, Commission, 450 Fifth Street, NW, Washington, DC 20549-0609; Applicants, c/o R. Alan Medaugh, ISI Strategy Fund, Inc., 535 Madison Avenue, New York, NY 10022.
Jean E. Minarick, Senior Counsel, at (202)
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW, Washington, DC 20549-0102 (telephone (202) 942-8090).
1. The Fund, a Maryland corporation, is registered under the Act as an open-end management investment company. ISI, a Delaware corporation, serves as the investment adviser to the Fund and is registered under the Investment Advisers Act of 1940 (“Advisers Act”). LA Capital, a California corporation, serves as the sub-adviser to the Fund and is registered under the Advisers Act.
2. Until March 29, 2002, Wilshire Asset Management, the asset management division of Wilshire Associates, Incorporated (“Wilshire”) and an investment adviser registered under the Advisers Act, served as sub-adviser to the Fund pursuant to a sub-advisory agreement between Wilshire and ISI. On March 29, 2002, Wilshire spun off its asset management division into a separate, independent company, LA Capital (“Transaction”). Upon the consummation of the Transaction, Wilshire's investment sub-advisory agreement with the Fund was automatically terminated. Pursuant to a new sub-advisory agreement approved by the Fund's Board of Directors (“Board”), including a majority of directors who are not interested persons of the Fund, ISI or LA Capital as set forth in section 2(a)(19) of the Act, on March 27, 2002, LA Capital became the sub-adviser to the Fund effective March 29, 2002. On June 26, 2002, shareholders of the Fund approved the sub-advisory agreement with LA Capital. In connection with the Transaction, for the three year period beginning March 29, 2002, LA Capital has determined to seek to comply with the “safe harbor” provisions of section 15(f) of the Act. Applicants state that, absent exemptive relief, more than 25 percent of the Fund's Board would be “interested persons” for purposes of section 15(f)(1)(A) of the Act.
3. Applicants state that Mr. Carl Vogt is and has been a director of the Fund since 1995. Mr. Vogt is of counsel in the Washington, DC office of Fulbright & Jaworski L.L.P. (“Fulbright”).
1. Section 15(f) of the Act is a safe harbor that permits an investment adviser to a registered investment company (or an affiliated person of the investment adviser as defined in Section 2(a)(3) of the Act) to realize a profit on the sale of its business if certain conditions are met. One of these conditions is set forth in section 15(f)(1)(A), which provides that, for a period of three years after the sale, at least 75 percent of the board of directors of the investment company may not be “interested persons” with respect to either the predecessor or successor adviser of the investment company. Section 2(a)(19)(B)(iv) provides that any person or partner or employee of any person who has acted as legal counsel to the investment adviser or principal underwriter of an investment company at any time since the beginning of the last two fiscal years of such investment company is an interested person of such investment adviser or principal underwriter. Consequently, Mr. Vogt could be deemed to be an interested person of LA Capital as a result of Fulbright LA's representation of LA Capital.
2. The Fund currently has five directors, three of whom are not interested persons of ISI or LA Capital. Without the requested exemption, the Fund would have to reconstitute its Board to meet the 75 percent non-interested director requirement of section 15(f)(1)(A) of the Act.
3. Section 6(c) of the Act permits the Commission to exempt any person or transaction from any provision of the Act, if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants request an exemption under section 6(c) from section 15(f)(1)(A) of the Act. Applicants submit that the addition of directors to achieve the 75 percent disinterested director ratio required by section 15(f)(1)(A) would make the Board unduly large and unwieldy, unnecessarily increase the ongoing expenses of the Fund, and cause the Fund to incur additional expenses in connection with the selection and election of the additional directors.
5. Applicants assert that the requested exemption is consistent with the protection of investors. Applicants state that the Fund will continue to treat Mr. Vogt as an interested person of the Fund and LA Capital for all purposes other than section 15(f)(1)(A) of the Act so long as Mr. Vogt is considered an “interested person” as defined in section 2(a)(19) of the Act. Applicants also state that the conditions to the requested order further would assure investor protection.
6. Applicants also submit that the requested exemption is consistent with the purposes fairly intended by the policies and provisions of the Act. Applicants assert that the legislative history of section 15(f) indicates that Congress intended the Commission to deal flexibly with situations where the imposition of the 75 percent requirement might pose an unnecessary obstacle or burden on an investment company. Applicants also state that section 15(f)(1)(A) was designed primarily to address the types of biases and conflicts of interest that might exist where an investment company's board of directors is influenced by a substantial number of interested directors to approve a transaction because the interested directors have an economic interest in the adviser.
Applicants agree that the order granting the requested relief will be subject to the following conditions:
1. If, within three years of the completion of the Transaction, it becomes necessary to replace any director of the Fund, that director will be replaced by a director who is not an “interested person” of LA Capital or ISI within the meaning of section 2(a)(19)(B) of the Act, unless at least 75% of the directors at that time are not interested persons of LA Capital or ISI.
2. Mr. Vogt will not be involved in Fulbright's representation of LA Capital.
3. Fees paid to Fulbright by LA Capital shall not, in the aggregate, exceed 1% of Fulbright's total revenues during any fiscal year.
4. Mr. Vogt will not be compensated in relation to the overall profits of Fulbright and will not receive any economic benefit from legal representation by Fulbright in areas outside of his own personal practice.
For the Commission, by the Division of Investment Management, under delegated authority.
On May 12, 2003, the National Association of Securities Dealers, Inc. (“NASD” or “Association”), through its subsidiary the Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to modify the SuperMontage decrementation process when an Order-Delivery ECN declines,
Nasdaq provided the following example of how the proposed modification to the decrementation process would operate for an ECN alone at the inside that elected to enter three separate bid Quotes/Orders at the same price level in SuperMontage:
The inside aggregated bid shows 1,800 shares @ 20.00.
1. SuperMontage receives an 800 share market sell order.
2. In response, SuperMontage sends an 800 share delivery to ECN Quote (#1). Upon dispatch, SuperMontage immediately decrements ECN Quote (#1) by the amount of the delivery (800 shares) leaving a display quote of 1,000 shares in ECN Quote (#1) that remains available for execution.
3. The ECN declines to execute the 800 share delivery to ECN Quote (#1).
4. The ECN's decline results only in the immediate removal of ECN Quote (#1),
The system reallocates the 800 shares from the incoming order in Step 1 against ECN orders (#2) and (#3), if not executed by a subsequent incoming order, before moving, if necessary, to the next best bid.
Thus, under the proposal, only individual Quotes/Orders would be removed in full by a decline, partial-fill, or a time-out when no revised attributable Quote/Order is immediately transmitted at an inferior price; not all trading interest at the declined price level or better. Other ECN Quotes/Orders at a particular price level that are not part of a SuperMontage delivery resulting in a decline, partial-fill, or time-out would be retained in the system and remain available for execution, and are not traded through. Nasdaq represents that locked or crossed markets will not be created as a result of the proposed rule change.
The Commission received one comment letter from Bloomberg Tradebook, LLC (“Bloomberg”) on the proposed rule change.
Bloomberg also believed that Nasdaq's proposed amendment would not reduce the adverse impact of decrementation on Order Delivery ECNs since each ECN's Quote/Order would still be subject to decrementation. In addition, Bloomberg did not believe that Nasdaq's proposed amendment would provide any practical benefit since ECNs manage their own internal matching engines and aggregate multiple orders for representation as a single Quote/Order in SuperMontage. Further, Bloomberg believed that the decrementation process could still be gamed since firms seeking to knock an ECN out of the quote in SuperMontage would still be able to do so.
In response to the Bloomberg Letter, Nasdaq stated that many of Bloomberg's comments extended beyond the narrow scope of the proposed rule change to modify SuperMontage's decrementation process to decrement only the ECN Quote/Order that an incoming order interacts with at a particular price level, as opposed to all of an ECN's available trading interest at a particular price level.
Nasdaq also offered general comments regarding the decrementation process. Nasdaq explained that decrementation was proposed as part of the original SuperMontage proposal to address locked and crossed markets that occurred in Nasdaq prior to SuperMontage. Nasdaq noted that access fee disputes could result in locked and crossed markets that would not only shut down Nasdaq's automatic execution functionality, but also many internal order-execution systems of Nasdaq market participants, until the locks or crosses were resolved. Nasdaq also stated that decrementation allows Nasdaq to fairly balance the needs and desires of a wide variety of users by accomodating ECNs, by allowing them to receive and decline orders (as opposed to receiving executions) while eliminating locked and crossed markets.
With regard to Bloomberg's specific comments on the proposed rule change, Nasdaq emphasized its proposed modification to the decrementation process is an internal SuperMontage system change that imposes no new obligation on any market participant. Instead, the proposal is intended to make the current decrementation process more discerning and provide options to ECNs that voluntarily elect to change the way they represent their Quotes/Orders in SuperMontage. Nasdaq stated that the proposed rule change gives ECNs the option to mitigate decrementation by providing them, if they enter multiple Quotes/Orders, an increased opportunity for their individualized Quotes/Orders to interact with counterparties with which the ECN is willing to trade. Nasdaq stated it should not be precluded from altering its system to provide options to ECNs that choose to take the initiative to serve their customers better. According to Nasdaq, if an ECN chooses to enter individual representations of trading interest, Nasdaq's new processing would allow more of the ECN's customers to remain in the SuperMontage system longer, thereby increasing the potential interaction of those customers with orders from parties that will pay the ECN's access fee. Those ECNs that do not alter the way they represent their customers in SuperMontage would, in effect, continue to have their single quotes decremented in the same manner as the current SEC-approved process. According to Nasdaq, Bloomberg opposes a rule that forces them to do nothing, and will have no impact on them if they continue to do business as they do today.
The Commission has carefully reviewed the proposed rule change, the Bloomberg Letter, and Nasdaq's response and finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
While the Commission appreciates and considered Bloomberg's comments regarding decrementation generally, whether decrementation is consistent with the Act was decided on January 19, 2001, when the Commission approved decrementation in SuperMontage.
The Commission notes that the amendment is essentially identical to the process as originally approved,
The Commission believes that Nasdaq's approach reasonably balances the interests of accommodating Order Delivery ECNs and providing an efficient trading system. Nasdaq represents that SuperMontage decrementation has eliminated the ECN access fee-related locked or crossed markets which caused the shutdown of Nasdaq's automatic execution functionality, and many internal order-execution systems, until the lock or cross was resolved. The Commission continues to believe that the SuperMontage decrementation process should help to reduce instances of locked and crossed markets and the problems associated with locked and crossed markets, while accommodating ECNs with an alternative to automatic execution.
For the foregoing reasons, the Commission finds that the proposal, as amended, is consistent with the requirements of the Act and rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The NYSE proposes to amend section 902.02 of the Listed Company Manual (the “Manual”) to implement certain changes to the continuing fees payable in connection with certain structured products known as “repackaged” securities and to reinstate the Exchange's “15-year” policy with respect to previously listed “repackaged” securities, as more fully described below.
Below is the text of the proposed rule change. Proposed new language is
Per Share Calculation—All issued shares including treasury shares are included in the calculation.
Computation of Fee—Other Equity Issues—
The fee is the greater of the minimum of $5,000 per issue or the fee calculated on a per share basis. All issued shares are included in the calculation.
In calculating the continuing listing fee for a listed company, the fees for all classes (or series) of listed securities of the company, excluding derivative products, fixed income products, and closed-end funds, are aggregated and the total continuing listing fee is capped at $500,000.
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.
On January 1, 2003, the Exchange instituted certain changes to the Schedule of Current Listing Fees for NYSE listed securities, including an increase of continuing annual fees for NYSE listed securities and discontinuance of the “15-year” policy, which previously removed from the calculation of continuing annual fees any shares that have been listed on the NYSE for 15 years or more.
For purposes of this filing, a “repackaged” security is a security (such security referred to as a “Repack”) issued by a trust the assets of which are primarily fixed-income securities.
Because of the Repack trusts' financial structure, any increase to applicable listing fees during the life of the Repack has significant economic and administrative implications for the trust and its depositor (also sometimes referred to as a trustor). The Exchange represents that when the Exchange increased its continuing annual fees for listed companies and discontinued its “15-year” policy,
With respect to Repacks listed prior to January 1, 2003, the Exchange is proposing to (a) roll back the continuing annual fee increase that became effective on January 1, 2003, and (b) reinstate the “15-year” policy thereby removing from the calculation of continuing annual fees any underlying shares of Repacks listed on the NYSE for 15 years or more.
In respect of Repacks listed after January 1, 2003, the Exchange proposes to provide that the continuing annual fee applicable to Repacks at the time of listing will remain in effect for the life of the security. The “15-year” policy will not be applicable to Repacks listed after January 1, 2003.
The Exchange believes that these fee changes will provide fee certainty for present and future Repacks by allowing trust depositors to reserve appropriately for continuing annual fees at the time of listing at the then effective fee schedule.
The Exchange believes that proposed rule change is consistent with the requirement of section 6(b)(4) of the Act,
The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in the furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and 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 NYSE. All submissions should refer to File No. SR-NYSE-2003-25 and should be submitted by October 1, 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 NYSE proposes to delete Exchange Rule 500 in its entirety and amend Section 806 of the Exchange's Listed Company Manual regarding the application by an issuer to delist its securities from the Exchange. Below is the text of the proposed rule change. Proposed new language is in
Rules of Board of Directors
General Rules
[Removal from the List Upon Request of the Issuer
Rule 500. An issuer may apply to delist a security after complying with the following procedures:
(a) Stock of a domestic issuer:
(1) The issuer's audit committee and board of directors must approve the application;
(2) The issuer must publish a press release announcing its proposed delisting; and
(3) The issuer must send to at least each of its 35 record shareholders with the largest positions in the security written notice alerting them to the proposed delisting; such notice must specify the earliest possible date of such delisting (which date shall be not less than 20 business days nor more than 60 business days (or, subject to Exchange approval, such longer period as the issuer may request) after the later of the date the notice is sent or the press release is issued) and must include a statement that the issuer complied with paragraphs (a)(1) and (a)(2) above. The issuer must contemporaneously send to the Exchange a copy of such notice.
(b) Stock of non-U.S. issuer:
(1) The issuer's board of directors must approve the application;
(2) The issuer must publish a press release announcing its proposed delisting; and
(3) The issuer must send to at least each of its 35 U.S. record shareholders with the largest positions in the security written notice alerting them to the proposed delisting. The issuer must contemporaneously send to the Exchange a copy of such notice.
(c) All listed bonds: The issuer's board of directors must approve the application.
* * * Supplementary Material:
.10 Definition of “stock” and “bond.”—Exchange Rule 4 defines the term “stock,” and Exchange Rule 5 defines the term “bond.”
.20 Requirement to issue a press release.—Pursuant to paragraphs (a)(2) and (b)(2) of this Rule, the issuer must publish the press release in compliance with the Procedures of Public Release of Information in Para.202.06 of the Exchange's Listed Company Manual.
.30 Application to the Securities and Exchange Commission to withdraw a security from listing.—After an issuer complies with the procedures of this Rule, the issuer may file an application with the Securities and Exchange Commission to withdraw the security from listing on the Exchange and from registration under the Securities Exchange Act of 1934. With respect to an issuer required to provide security holders with notice of the proposed delisting pursuant to paragraph (a) (3) of this Rule, the proposed date for such withdrawal from listing and registration must be the same date specified in its notice to security holders. The issuer must contemporaneously send to the Exchange a copy of the application.
.40 Delisting of multiple classes of securities.—If an issuer delists a class of stock from the Exchange pursuant to this Rule, but does not delist other classes of listed securities, the Exchange will give consideration to delisting one or more of such other classes.]
806.00 Rule of the Exchange in respect of Removal From List upon Request of Company.
[Rule 500 in effect as of July 21, 1999 is as follows:
Rule 500. An issuer may apply to delist a security after complying with the following procedures:
(a) Stock of a domestic issuer:
(1) The issuer's audit committee and board of directors must approve the application;
(2) The issuer must publish a press release announcing its proposed delisting; and
(3) The issuer must send to at least each of its 35 record shareholders with the largest positions in the security written notice alerting them to the proposed delisting; such notice must specify the earliest possible date of such delisting (which date shall be not less than 20 business days nor more than 60 business days (or subject to Exchange approval, such longer period as the issuer may request) after the later of the date the notice is sent or the press release is issued) and must include a statement that the issuer complied with paragraphs (a) (1) and (a) (2) above. The issuer must contemporaneously send to the Exchange a copy of such notice.
(b) Stock of non-U.S. issuer:
(1) The issuer's board of directors must approve the application;
(2) The issuer must publish a press release announcing its proposed delisting; and
(3) The issuer must send to at least each of its 35 U.S. record shareholders with the largest positions in the security written notice alerting them to the proposed delisting. The issuer must contemporaneously send to the Exchange a copy of such notice.
(c) All listed bonds: The issuer's board of directors must approve the application.
* * * Supplementary Material:
.10 Definition of “stock” and “bond.”—Exchange Rule 4 defines the term “stock,” and Exchange Rule 5 defines the term “bond.”
.20 Requirement to issue a press release.—Pursuant to paragraphs (a)(2) and (b)(2) of this Rule, the issuer must publish the press release in compliance with the Procedures of Public Release of Information in Para.202.06 of the Exchange's Listed Company Manual.
.30 Application to the Securities and Exchange Commission to withdraw a security from listing.—After an issuer complies with the procedures of this Rule, the issuer may file an application with the Securities and Exchange Commission to withdraw the security from listing on the Exchange and from registration under the Securities Exchange Act of 1934. With respect to an issuer required to provide security holders with notice of the proposed delisting pursuant to paragraph (a) (3) of this Rule, the proposed date for such withdrawal from listing and registration must be the same date specified in its notice to security holders. The issuer must contemporaneously send to the Exchange a copy of the application.
.40 Delisting of multiple classes of securities.—If an issuer delists a class of stock from the Exchange pursuant to this Rule, but does not delist other classes of listed securities, the Exchange will give consideration to delisting one or more of such other classes.]
In its filing with the Commission, the NYSE 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 NYSE 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 delete Exchange Rule 500 in its entirety and to amend Section 806 of the Exchange's Listed Company Manual regarding the application by an issuer to delist its securities from the Exchange. Amended Section 806 would require simply that a company furnish the Exchange with a certified board resolution evidencing board approval of the voluntary delisting.
Exchange Rule 500 describes the procedures a listed company must follow to voluntarily delist its securities from the Exchange. The original rule, adopted in 1939, required two-thirds of a company's outstanding shares to vote in favor of a delisting, with no more than ten percent of the shares opposing. In 1999, the requirement of a shareholder vote was eliminated, and since then the rule has required only board and audit committee approval, prior written notice to the company's 35 largest record holders, and a press release informing shareholders generally of the proposed delisting.
In approving the 1999 amendment, the Commission requested that the Exchange review periodically the shareholder notification requirement of Rule 500 to determine whether it remained warranted and consistent with the protection of investors. In fulfillment of the Commission's request and in the context of the work the Exchange has done in re-examining its corporate governance standards for listed companies, the Exchange determined to reassess Rule 500. The Exchange has concluded that it is now appropriate to require only that a company voluntarily delisting its securities from the Exchange obtain the approval of its board and furnish the Exchange with a copy of the board resolution. The company would, of course, then be required under Commission rules to file an application with the Commission to withdraw the security from listing on the Exchange.
The rationale for the requirement in the current rule that a company obtain a separate audit committee approval of a delisting was to insure that independent directors approved the decision.
The Exchange further believes that neither advance notification to shareholders nor a company press release need be mandated under Exchange rules. In the case of a transfer of a listing from one market to another, both the company transferring and the market to which it is transferring are typically eager to publicize the event.
The Exchange has for many years replicated Rule 500 in Section 806 of its Listed Company Manual, which is a separate compendium of rules applicable to listed companies. In making this change, the Exchange will delete Rule 500 in its entirety. The remaining requirement of board approval and notice thereof to the Exchange will be codified in section 806 of the Listed Company Manual.
The NYSE represents that the basis under the Act for this proposed rule change is the requirement under 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 were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve the 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. 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 NYSE. All submissions should refer to file number SR-NYSE-2003-23 and should be submitted by October 1, 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 Phlx proposes to amend Phlx Rule 1080, Philadelphia Stock Exchange Automated Options Market (“AUTOM”) and Automatic Execution System (“AUTO-X”),
Rule 1080. (a)-(j) No change.
Commentary:
.01-.05 No change.
.06 Reserved.
.07 The specified disengagement size set forth in Rule 1080(c)(iv)(I) is subject to the approval of the Options Committee [and shall not be for a number of contracts that is fewer than the highest quotation size for any series in the given option]. The specified disengagement size for each option shall be posted on the Exchange's Web site.
In its filing with the Commission, the Phlx included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Phlx Rule 1080, Commentary .07, to reflect a systems change to the pilot.
The pilot currently includes the following features:
• Once an automatic execution occurs via AUTO-X in an option, the system begins a “counting” program, which counts the number of contracts executed automatically for that option up to a certain size,
• When the number of contracts executed automatically for that option exhausts the specified disengagement size for the specific option within a 15 second time frame, the system ceases to automatically execute for that option, and drops all AUTO-X eligible orders in that option for manual handling by the specialist for a period of 30 seconds in order to enable the specialist to refresh quotes in that option.
• Upon the expiration of 30 seconds, automatic executions resume, the “counting” program is set to zero and it begins counting the number of contracts executed automatically within a 15 second time frame again, up to the specified disengagement size.
Again, when the number of contracts automatically executed exhausts the specified disengagement size within a 15 second time frame, the system drops all subsequent AUTO-X eligible orders for manual handling by the specialist for a period of 30 seconds. The system then continues to reset the “counting” program and drop to manual, etc.
In April 2003, the Commission approved a proposal by the Exchange to provide automatic executions for eligible inbound orders (for the account(s) of both customers and broker-dealers) at the Exchange's disseminated price, up to the disseminated size, replacing the previous Exchange rule that allowed a pre-set “AUTO-X guarantee” size, in which eligible orders would be automatically executed up to that AUTO-X guarantee, regardless of the Exchange's disseminated size.
Because the Exchange currently guarantees automatic executions for eligible orders up to the Exchange's disseminated size, the most recent pilot extension included Commentary .07 to Rule 1080, prohibiting specialists from setting the specified disengagement size to a number of contracts that is fewer than their largest disseminated size.
The Exchange has developed a new system that will automatically execute eligible orders up to the disseminated size in a given series regardless of the specified disengagement size. Thus, if the disseminated size exceeds the specified disengagement size for the series, and an eligible order is delivered for a number of contracts that is greater than the specified disengagement size, the order will be executed up to the disseminated size, followed by an
The Exchange believes that the new system should enable specialists to continue to fulfill their obligations to make fair and orderly markets during periods of peak market activity, while simultaneously enabling them to meet the requirement to provide automatic executions up to the disseminated size, regardless of whether the specified disengagement size is for a number of contracts that is less than the disseminated size.
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act,
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx. All submissions should refer to File No. SR-Phlx-2003-52 and should be submitted by October 1, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
As a result of the President's major disaster declaration on August 29, 2003, I find that Allegany, Cattaraugus, Chemung, Columbia, Delaware, Fulton, Greene, Livingston, Montgomery, Ontario, Rensselaer, Schuyler, Steuben, and Yates Counties in the State of New York constitute a disaster area due to damages caused by severe storms, flooding and tornadoes occurring on July 21, 2003 and continuing through August 13, 2003. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on October 28, 2003 and for economic injury until the close of business on May 31, 2004 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 1 Office, 360 Rainbow Blvd. South, 3rd Fl., Niagara Falls, NY 14303.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Albany, Broome, Chautauqua, Chenango, Dutchess, Erie, Genesee, Hamilton, Herkimer, Monroe, Otsego, Saratoga, Schenectady, Schoharie, Seneca, Sullivan, Tioga, Tompkins, Ulster, Washington, Wayne, and Wyoming Counties in the State of New York; Bradford, McKean, Potter, Tioga, Warren, and Wayne counties in the State of Pennsylvania; Bennington County in the State of Vermont; Berkshire County in the State of Massachusetts; and Litchfield County in the State of Connecticut.
The interest rates are:
The number assigned to this disaster for physical damage is 353911. For economic injury the number is 9W7900 for New York; 9W8000 for Pennsylvania; 9W8100 for Vermont; 9W8200 for Massachusetts; and 9W8300 for Connecticut.
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency, effective August 25, 2003, the above numbered declaration is hereby amended to establish the incident period as beginning on July 21, 2003 and continuing through August 25, 2003.
All other information remains the same, i.e., the deadline for filing applications for physical damage is September 30, 2003, and for economic injury the deadline is May 3, 2004.
The Small Business Administration Region III Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a Public Hearing on Thursday, September 25, 2003, at 8:30 a.m. at the Duquesne University, 600 Forbes Avenue, Room 713 Rockwell Hall, Pittsburgh, PA 15282, to receive comments and testimony from small business owners, small government entities, and small non-profit organizations concerning regulatory enforcement and compliance actions taken by Federal agencies.
Anyone wishing to attend or to make a presentation must contact Donald Nemchick in writing or by fax, in order to be put on the agenda. Donald Nemchick, SBA Business Information Center, 700 River Ave., Pittsburgh, PA 15212, phone (412) 322-6441, fax (412) 395-6562, e-mail:
For more information, see our Web site at
The Small Business Administration Region I Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a Public Roundtable on Wednesday, September 24, 2003 at 9:30 a.m. at The Legislative Office Building, North State Street, Room 201-203, Concord, NH 03301, to provide small business owners and representatives of trade associations with an opportunity to share information concerning the federal regulatory enforcement and compliance environment.
Anyone wishing to attend or to make a presentation must contact William Phillips in writing or by fax, in order to be put on the agenda. William Phillips, District Director, SBA New Hampshire District Office, 143 North Main Street, Suite 202, Concord, NH 03301, phone (603) 225-1400 Ext. 115, fax (603) 225-1409, e-mail:
For more information, see our Web site at
The Small Business Administration Region I Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a Public Roundtable on Tuesday, September 23, 2003 at 9:30 a.m. at The Vermont Statehouse, 115 State Street, Room 11, First Floor, Montpelier, VT 05602, to provide small business owners and representatives of trade associations with an opportunity to share information concerning the federal regulatory enforcement and compliance environment.
Anyone wishing to attend or to make a presentation must contact Vallerie H. Morse in writing or by fax, in order to be put on the agenda. Vallerie H. Morse, U.S. Small Business Administration, Vermont District Office, 87 State Street, Room 205, P.O. Box 605, Montpelier, VT 05601, phone (802) 828-4422, Ext. 211, fax (802) 82-4485, e-mail:
For more information, see our Web site at
The Small Business Administration Region II Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a Public Roundtable on Friday, September 26, 2003 at 9:30 a.m. at the State University of New York, State University Plaza, SUNY Board Room, Albany, NY 12246, to provide small business owners and representatives of trade associations with an opportunity to share information concerning the federal regulatory enforcement and compliance environment.
Anyone wishing to attend or to make a presentation must contact Jim King in writing or by fax, in order to be put on the agenda. Jim King, Small Business Development Center, 41 State Street, Albany, NY 12246, phone (518) 443-5398 Ext. 0 or 800-732-7232, fax (518) 443-5275, e-mail:
For more information, see our Web site at
Department of State.
Notice.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995. Comments should be submitted to OMB within 30 days of the publication of this notice.
The following summarizes the information collection proposal submitted to OMB:
Public comments are being solicited to permit the agency to:
• Evaluate whether the proposed information collection 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, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including through the use of automated collection techniques or other forms of technology.
Copies of the proposed information collection and supporting documents may be obtained from Brendan Mullarkey of the Office of Visa Services, U.S. Department of State, 2401 E St. NW., RM L-703, Washington, DC 20520, who may be reached on 202-663-1163. Public comments and questions should be directed to the State Department Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20530, who may be reached on 202-395-3897.
Department of State.
Notice.
In accordance with Sections 3 and 6 of the Clean Diamond Trade Act of 2003 (Pub. L. 108-19) and Section 2 of Executive Order 13312 of July 29, 2003, the Department of State is identifying all the Participants eligible for trade in rough diamonds under the Act, and their respective Importing and Exporting Authorities, revising the previously published list of August 11, 2003 (68 FR 47626).
Jay L. Bruns, Special Negotiator for Conflict Diamonds, Bureau of Economic and Business Affairs, Department of State, (202) 647-2857.
Section 4 of the Clean Diamond Trade Act (the “Act”) requires the President to prohibit the importation into, or the exportation from, the United States of any rough diamond, from whatever source, that has not been controlled through the Kimberley Process Certification Scheme (KPCS). Under Section 3(2) of the Act, “controlled through the Kimberley Process Certification Scheme” means an importation from the territory of a Participant or exportation to the territory of a Participant of rough diamonds that is either (i) carried out in accordance with the KPCS, as set forth in regulations promulgated by the President, or (ii) controlled under a system determined by the President to meet substantially the standards, practices, and procedures of the KPCS. The referenced regulations are contained at 31 CFR part 592 (“Rough Diamond Control Regulations”)(68 FR 45777, August 4, 2003).
Section 6(b) of the Act requires the President to publish in the
Pursuant to Section 3 of the Clean Diamond Trade Act (the Act), Section 2 of the Executive Order 13312 of July 29, 2003, and Delegation of Authority No. 245 (April 23, 2001), I hereby identify the following entities as of September 1, 2003, as Participants under section 6(b) of the Act. Included in this List are the Importing and Exporting Authorities for Participants, as required by Section 6(b) of the Act. This list revises the list previously published on August 11, 2003 (68 FR 47626).
This notice shall be published in the
Based upon a review of the Administrative Record assembled in this matter and in consultation with the Attorney General and the Secretary of the Treasury, the Secretary of State has concluded that there is a sufficient factual basis to find that the relevant circumstances described in section 219 of the Immigration and Nationality Act, as amended (hereinafter “INA”), continue to exist with respect to the United Self-Defense Forces of Colombia and its aliases. Therefore, effective September 10, 2003, the Secretary of State hereby redesignates that organization as a foreign terrorist organization pursuant to section 219(a) of the INA.
Deputy Secretary of State Richard L. Armitage approved on May 29, 2003, the FY 2003 funding recommendations of the Advisory Committee for the Study of Eastern Europe and the Independent States of the Former Soviet Union. The Title VIII Program, administered by the U.S. Department of State, seeks to build expertise on the countries of Eurasia and Central and East Europe through support to national organizations in the U.S. for advanced research, language and graduate training, and other activities conducted domestically and overseas. The FY 2003 grant recipients are listed below.
Tennessee Valley Authority (TVA).
Issuance of record of decision.
This notice is provided in accordance with the Council on Environmental Quality's regulations (40 CFR parts 1500 to 1508) and TVA's procedures implementing the National Environmental Policy Act. TVA has decided to implement the preferred alternative identified in its Final Environmental Impact Statement (EIS), Rarity Pointe Commercial Recreation and Residential Development on Tellico Reservoir.
In implementing Alternative E, TVA has decided to take several actions related to the Rarity Pointe development: (1) Change the land use allocation of approximately 116 acres of TVA property following the 820-foot elevation as marked on the Tellico Reservoir and sell it for part of a privately planned residential resort and golf course community, (2) authorize the use of about 5 acres of TVA property, below the 820-foot elevation for a small (par-3) golf course, (3) approve plans for a marina with up to 349 wet and 200 dry storage boat slips using approximately 4 acres of TVA land below the 820-foot elevation, (4) change the land use allocation of about 17 acres of TVA property from natural resource conservation to recreation to allow the construction of greenway trailhead facilities and grant the Tellico Reservoir Development Agency (TRDA) a permanent easement over the property to manage the property for the designated uses, and (5) accept the transfer of 256 acres of property, designate this tract for recreation and natural resources conservation, and grant the TRDA a permanent easement over the property to manage the property for the designated uses.
Richard L. Toennisson, Senior NEPA Specialist, Environmental Policy and Planning, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 8C, Knoxville, Tennessee 37902-1499; telephone (865) 632-8517 or e-mail
In May 2002, TVA received a request from LTR Properties (Rarity Communities) to make available property under TVA's control on Tellico Reservoir in Loudon County, Tennessee, for part of a residential resort and golf community that Rarity Communities was constructing. Rarity Communities already owned 539 acres of property adjacent to the TVA property that it was proceeding to develop. It wanted the TVA property to enhance and expand the development. TVA was asked to take three actions related to the Rarity Pointe development: (1) Release the land use allocations for approximately 116 acres of TVA property above the
In August 2000 prior to receiving the Rarity Communities request, TVA adopted the preferred alternative in its Tellico Reservoir Land Management Plan Final EIS (2000 Land Plan). This plan allocated uses for 139 parcels of TVA land totaling 11,150 acres on Tellico Reservoir, including all of the TVA land sought by Rarity Communities. The allocated uses for the two parcels in the Lower Jackson Bend area comprising the 116 acres sought by Rarity Communities—recreation (46 acres) and natural resource conservation (70 acres)—are not consistent with the planned development and have to be changed to permit the development to proceed if the property is sold by TVA. Despite the conflict with the Year 2000 Land Plan, TVA decided to assess the merits of Rarity Communities’ request because it was consistent with the overall purposes of TVA's Tellico project and would further implement that project. The request also was consistent with TVA's statutory responsibilities to promote economic development in the Tennessee Valley region.
Although implementation of the Tellico project is exempt from environmental review, TVA decided to review the Rarity Communities’ request under the National Environmental Policy Act. TVA issued a Notice of Intent to prepare an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) on June 24, 2002. A public scoping meeting was held on July 16, 2002, and was attended by over 400 people. Because of the degree of public interest, TVA extended the scoping period. TVA received over 500 written or oral comments on the proposal with the majority of commenters objecting to the transfer of TVA public land to a private developer.
TVA decided to prepare an EIS. A Notice of Availability of the Draft EIS was published in the
Both the U.S. Army Corps of Engineers (USACE) and the Tellico Reservoir Development Agency (TRDA) have proposed actions related to the proposal and were cooperating agencies on the EIS. The USACE must decide whether to permit construction of marina water use facilities, related dredging, and disturbance of wetlands. TRDA has been requested to transfer ownership of property currently designated for industrial use needed to mitigate the sale of TVA's property to Rarity Communities and agree to permanently manage the property for recreation and natural resource conservation. In addition, TRDA has agreed to permanently manage the 17.6 acres trailhead property for recreation purposes.
TVA identified five alternatives for responding to Rarity Communities’ request. Under any alternative, construction and operation of a commercial recreation and residential project was expected to continue (and is proceeding now) on the 539 acres of private land already owned by Rarity Communities.
Under
Under
Under
Under
Under
TVA identified the Alternative E as the preferred alternative in both the Draft EIS and the Final EIS.
TVA has decided to implement the preferred alternative identified in the Final EIS, Alternative E. TVA has determined that Alternative E achieves both Rarity Communities’ objectives for the development of a high quality residential and recreational community and the regional and economic development goals of the Tellico Project in a manner that reduces associated environmental impacts to acceptable levels.
TVA has worked closely with Rarity Communities and TRDA to identify and put in place a number of mitigation measures. Of critical importance is the Rarity Communities’ willingness to provide property to offset the loss of the TVA lands and their inherent public values. As a consequence, more land and shoreline comes under public ownership for recreation and natural resource uses than is lost by the sale of the TVA property to Rarity Communities. Under this alternative, Rarity Communities also would support development of a greenway trail on the eastern shore of the reservoir, thus fulfilling a component of the Year 2000 Land Plan. TVA is adopting commitments under Alternative E to further minimize the potential for adverse impacts to the environment. This includes prohibition of docks and other water use facilities on the 116 acres to be sold by TVA. As requested by the U.S. Environmental Protection Agency (EPA), these commitments are listed below, under the Environmental Commitments section. With these mitigation measures, all practicable means to avoid or minimize environmental harm would be adopted.
In reaching this decision, TVA has carefully considered the comments and concerns voiced by the public. Based on the comments TVA received during the EIS and scoping review processes, the primary concern to opponents of the proposed action appears to be that adjusting the Year 2000 Land Plan to allow the Rarity Communities
As discussed here and in the EIS, TVA agreed to consider the merits of Rarity Communities proposal because it is consistent with and further implements the overall goals of TVA's Tellico project. However, consistency with Tellico project goals likely would not have been sufficient for TVA to agree to a deviation from the Year 2000 Land Plan so early in the plan's life. Rarity Communities’ willingness to offset the loss to TVA public land by providing higher quality land elsewhere on the reservoir was, as stated above, a critical factor in TVA's decision to allow the expansion of Rarity Communities’ development onto TVA property and to approve Rarity Communities’ associated requests. This allows TVA to make the decision here that furthers the Tellico project's economic development goals while enhancing the Year 2000 Land Plan's recreation and natural resource management goals.
Because the Rarity Communities’ development would occur and is occurring on private land adjacent to the TVA land, none of the alternatives, including the no action alternative (Alternative A), would be free of environmental impacts. However, TVA's analyses indicate that Alternative A would have fewer environmental impacts especially to resources on TVA's public lands. On balance, TVA has decided that the no action alternative is the environmentally preferable alternative. However, of the action alternatives, Alternative E has a number of environmentally attractive features and in TVA's judgment would have important environmental benefits. These include a net gain of accessible public land and shoreline on Tellico Reservoir allocated to natural resource conservation and recreation and on-site environmental protection measures related to design and construction of the Rarity Pointe golf courses, resort housing, marina, and other development that would otherwise be foregone. In addition, Alternative E would jump-start the development of a greenway trail on the eastern shore of the reservoir. The major environmental negative feature of Alternative E would be that it could be seen from another development on Tellico Reservoir, known as Tellico Village, and would therefore have negative visual effects for village residents and lake users within that view shed.
For the reasons discussed in the Final EIS and summarized here, TVA is committing to the following measures to avoid, reduce, or mitigate the potential environmental impacts associated with these actions:
• A vegetated buffer zone of at least 50 feet will be retained by TVA and maintained along the shoreline from the summer pool level and around the periphery of Parcels 8 and 9 (the land transferred by TVA) in order to maintain continuity on the site, and reduce possible impacts to water quality and wetlands.
• In order to further minimize potential impacts to water quality and avoid wildlife exposure to pesticides, Rarity Communities will utilize golf course design and management practices approved by TVA and included in Tennessee Department of Agriculture guidelines and/or the certification of the golf courses by Audubon or similar organizations that reduce exposure to and impacts from golf course maintenance and that provide a method of tracking compliance with this commitment.
• Rarity Communities will replace forested wildlife habitat and recreation land lost from the development of Parcels 8 and 9 through a land exchange with TVA at the Wildcat Rock site as described in Alternative E. TVA and/or TRDA will maintain the acquired parcel for public recreation and natural resource management.
• Dead trees and mature trees greater than 14 inches in diameter will not be cut on any of the lands that comprise the development project, especially oaks and hickories with loose, shaggy bark, until Indiana bats are not likely to be present (October 15-March 31).
• Fully shielded light fixtures or those with internal low-glare optics (so no light is emitted from the fixture at angles above the horizontal) will be used in the development.
• The following commitments are required for dredging associated with the marina:
A. Silt curtains must be placed around the perimeter of the dredge area, so as to not allow silt laden water outside the work area.
B. All saturated spoil will be dewatered using berms, straw bales, silt fencing, or other silt control devices positioned in such a way as to not allow silt-laden water to re-enter the reservoir. The method of dewatering must be approved by TVA.
C. All dredged material must be removed to an upland site (above 820-foot elevation) and contained in a manner to prevent its return to any water body or wetland, and permanently stabilized to prevent erosion.
• Rarity Communities will mitigate impacts to wetlands (W4 and W5) by implementing the wetland mitigation plan in Appendix C of the Final EIS. In addition, in response to comments from the FWS, the following additional wetland mitigation measures will be established;
A. The height of the riprap behind the dredge will be no higher than the 814-foot elevation.
B. The marina parking lot will be located no closer to the shoreline than 55 feet from the 813-foot contour.
C. The area between the marina parking lot and shoreline will be maintained as a vegetated filter buffer with the larger vegetation (trees and shrubs) left in place, the larger vegetation may be side pruned.
• All of the general and the designated standard conditions for Section 26a and Land Use approvals identified in Appendix G of the Final EIS are conditions of 26a approval and will be placed in the 26a permit, including conditions 6b, 6f, 6g, and 6h, and implemented by Rarity Communities on all licensed and leased TVA property. Article 3 General Provisions, TVA Contract 60000A, will be adopted by Rarity Communities and implemented on all former TVA
• To minimize pollutant loading and prevent spilling fuel or wastewater, any fuel storage or dispensing facility located temporarily or permanently on development project property will comply with TVA Resource Stewardship (TVARS) Guidelines for Storage Tanks (4.5.5), including the preparation and implementation of a Spill Prevention and Control Plan. A marina sewage pump out station will be installed and operated according to TVARS Guidelines 4.5.3, and the marina will comply with TVARS Guidelines for Discharges (4.5.1) (
• Rarity Communities will construct a trail terminal on TVA Parcel 6 (Parcel 6A), consisting of a paved access road, paved parking lot for approximately 18 vehicles, walkways, 6 picnic sites, and restroom in accordance with TVA design specifications described Figure G-2 in Appendix G, and permit public ingress/egress across Rarity Pointe property to access the proposed greenway trail system on TVA's adjoining upstream and downstream property.
• TVA's deed transferring title of the approximately 116 acres to Rarity Communities will state that residential access for individual water use facilities will not be considered anytime in the future by TVA and that individual water use facilities are prohibited.
• To prevent an increase in future flood damages:
A. Rarity Communities and the operator of the marina will securely anchor all floating facilities to prevent them from floating free during major floods.
B. Any future facilities or equipment subject to flood damage would be located above the TVA Flood Risk Profile elevation of 817.0 feet MSL.
C. Any future development proposed within the limits of the 100-year floodplain, elevation 816.2 feet MSL, would be consistent with the requirements of Executive Order 11988.
D. All future development would be consistent with the requirements of TVA's Flood Control Storage Loss Guideline.
• TVA Cultural Resources will review the proposed dredge site area during low winter pool, prior to any disturbance, to verify the results of a previous archeological survey.
As appropriate, these commitments will be implemented through the documents transferring title to the TVA property, conveying easement rights, and/or TVA's approval of development project elements under section 26a of the TVA Act and TVA will remain responsible for enforcing compliance.
Department of Transportation.
Notice of order to show cause (Order 2003-9-1), Dockets OST-2003-14773 and OST-2003-14774.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding Primaris Airlines, Inc., fit, willing, and able, and awarding it certificates of public convenience and necessity to engage in interstate and foreign scheduled passenger air transportation of persons, property and mail.
Persons wishing to file objections should do so no later than September 18, 2003.
Objections and answers to objections should be filed in Dockets OST-2003-14773 and OST-2003-14774 and addressed to the Department of Transportation Dockets (SVC-124.1, Room PL-401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Ms. Delores King, Air Carrier Fitness Division (X-56, Room 6401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-2343.
Federal Aviation Administration (FAA), DOT.
Notice; assignment of new tasks to the Aviation Rulemaking Advisory Committee (ARAC) and withdrawal of prior tasks.
This notice announces the withdrawal of four prior ARAC tasks, and describes two new tasks assigned to and accepted by the ARAC. This notice informs the public of the ARAC activities and invites public participation in the ARAC working groups.
Mr. David Showers, Manager, Standards Office, 901 Locust, Kansas City, Missouri 64106, (816) 329-4110,
The FAA set up the Aviation Rulemaking Advisory Committee (ARAC) to give recommendations to the FAA Administrator on aviation-related rulemakings. The Secretary of Transportation determined the formation and use of the ARAC are necessary and in the public interest in performing duties imposed on the FAA by law.
In 1992, the JAA and the FAA committed to harmonizing, where proper and to the maximum extent possible, the FAR (Federal Aviation Regulations) and JAR (Joint Aviation Requirements) rules and associated materials. However, since the new ARAC tasks will not result in a change to the FAR (
The FAA assigned and the ARAC accepted the two tasks described in this section. Each task is to be done in two phases.
This task is intended to create safety standards that would be available to address future part 23 jets and high-performance airplane configurations. It would provide industry with a better understanding of potential requirements before committing to a project involving
1.Define “high performance” as it relates to high-performance airplanes; and
2. Review 14 CFR part 23 as a benchmark and identify safety concerns that are not currently addressed for jet and high-performance part 23 airplanes. Give particular attention to commuter and other part 23 airplanes used in part 135 service.
3. As part of the evaluations, consider the following:
• Systems issues such as stick pushers and integrated flight controls
• Structures issues such as mach effects (compressibility) and bird strike
• Powerplant location issues
• Aircraft performance issues such as accelerate-stop distance, single-engine climb, mach buffet, stall speed
• Cabin safety issues, including Occupant Protection for Commuter Category Airplane Crashworthiness (Dynamic Seats), Fireblocking Provisions, Thermal/Acoustic Insulation
• Cockpit display issues (multifunction displays, primary flight displays)
The ARAC should complete phase 1 of task I and forward their recommendations to the FAA by March 10, 2004.
1. Recommend safety standards to address the safety concerns identified in phase 1 of task I, unless the project is withdrawn or changed by the FAA.
The ARAC should complete this task and forward their recommendations to the FAA by September 12, 2005.
Task II would create safety standards that would be available to address installing equipment associated with known emerging propulsion-type technologies on part 23 airplanes. These standards would address technologies such as diesel engines, electronic engine and propeller controls, electronic engine displays, and so forth. They would give industry information on the possible safety requirements in these areas before they committed resources to a related project.
1. Review 14 CFR part 23 as a benchmark and identify safety concerns that are not currently addressed for emerging propulsion-type technologies related to the installation of reciprocating engines in part 23 airplanes.
2. As part of the evaluations, consider the following:
• Single lever power control (SLP)
• Electronic engine control (EEC) and propeller controls
• Fuel quantity calibration and low-fuel warning systems
• Diesel engine installations, which include consideration of the way fuels are addressed in part 23
• Electronic engine displays
• Other technologies the Committee finds suitable
The ARAC should complete phase 1 of task II and forward their recommendations to the FAA by March 10, 2004.
1. Recommend safety standards to address the safety concerns identified in phase 1 of task II, unless the project is withdrawn or changed by the FAA.
The ARAC should complete phase 2 of task II and forward their recommendations to the FAA by September 12, 2005.
The ARAC accepted the tasks and has agreed to the schedules for completing the tasks. The Committee will assign the tasks to the newly formed working groups under General Aviation Certification and Operations Issues.
The working group will serve as staff to ARAC and help in the analysis of the assigned tasks. ARAC must review and approve the working groups' recommendations. If ARAC accepts the working groups' recommendations, they will forward them to the FAA as ARAC recommendations.
The Part 23 Jet and High-Performance Airplane Safety Standards Working Group and the Part 23 Emerging Propulsion-type Technologies Working Group are expected to comply with the procedures adopted by ARAC. As part of the procedures, the working groups are expected to:
1. Recommend a work plan for completion of the task, including the rationale supporting such a plan for consideration at the next meeting of the ARAC on General Aviation Certification and Operations issues held following publication of this notice.
2. Give a detailed conceptual presentation of the proposed recommendations before proceeding with the work stated in item 3 below.
3. Draft the appropriate documents, required analyses, and any other related materials or documents.
4. Provide a status report at each meeting of the ARAC held to consider general aviation certification and operations issues.
Each working group will be composed of technical experts with an interest in the assigned task. Working group participants should be prepared to devote a significant portion of their time and resources to the ARAC task. A working group member need not be a representative or a member of the ARAC. Individuals who want to become a member of one of the working groups should contact the person listed under the
Individuals chosen for membership in a working group are expected to represent their part of the aviation community and actively participate in the working group (
Once the working group has begun deliberations, members will not be added or substituted without the approval of the co-assistant chair, the co-assistant executive director, and the working group chair.
Meetings of the ARAC will be open to the public. Meetings of the working groups will not be open to the public, except those individuals selected as working group members. The FAA will make no public announcement of working group meetings.
This notice also announces the withdrawal of four prior tasks assigned to the ARAC. Two of these tasks were
A description of the withdrawn tasks follows.
The FAA tasked the ARAC to review occupant protection standards to address criteria for improved occupant protection commonly used on part 23 airplanes, and develop requirements to improve the safety of part 23 airplanes. The ARAC's recommendations were to include an assessment of—
1. Flammability Standards for Seat Fireblocking Provisions;
2. Standardization of Emergency Landing Dynamic Conditions;
3. Thermal/Acoustic Insulation Flammability;
4. Airworthiness Certification of Airplanes Used in Cargo/Passenger Combination Operations;
5. Emergency Exit Markings;
6. Emergency Exit Access; and
7. Electric Cables and Equipment.
To consolidate FAA and industry resources, the FAA withdraws this task and includes it in new Task I described in this notice. Although the entire withdrawn task is not included in the new task, the FAA has determined that the intended results from the withdrawn task will be accomplished with new Task I.
The FAA tasked ARAC to review part 23 standards to evaluate criteria for propulsion technologies used on part 23 airplanes and requirements that would improve the safety of part 23 airplanes. The ARAC recommendations were to include an evaluation of—
1. Turbofan/jet installations;
2. Single level power controls;
3. Electronic engine controls;
4. Fuel quantity calibration and low fuel warning for reciprocating engines;
5. New technology reciprocating engines (for example, diesel engines);
6. New technology powerplant displays; and
7. Various miscellaneous updates to part 23 powerplant requirements.
To consolidate FAA and industry resources, the FAA withdraws this task and incorporates it in new Task II described in this notice.
The FAA tasked the ARAC to review § 23.177 and JAR 23 and make recommendations on harmonized changes to § 23.177 for demonstrating positive dihedral effect in all landing gear and flap positions that would improve the safety of part 23 airplanes. The ARAC's recommendations were to include a draft notice of proposed rulemaking with preamble language, rule language, and any supporting legal analysis.
The FAA tasked the ARAC with evaluating the requirements for systems in the following CFR sections and make recommendations to address systems safety that would improve the safety of part 23 airplanes:
1. Revise § 23.735 to clarify the requirement for operation of brakes after a single failure in the braking system in commuter category airplanes.
2. Revise § 23.1301 by deleting paragraph (d); revise § 23.1309 to include warning requirements, probability values, and failure conditions applicable to powerplant systems; make warning requirements compatible with other regulations; delete paragraphs (c) and (d).
3. Add a new § 23.1310, Power Source Capacity and Distribution, from existing paragraphs 23.1309(c) and (d).
4. Revise § 23.1311 to address redundancy requirements for primary flight instruments; define “indicator,” the sensory cue requirements in paragraph (a)(6); delete the redundancy requirement in paragraph (b).
5. Review and revise §§ 23.1326(b)(1) and 23.1322 to require the amber light to be illuminated when the pitot tube heater is “off.”
6. Review and revise § 23.1311 to call out required flight instruments as indicated in §§ 23.1303 and 91.205.
The FAA withdraws these tasks to free-up resources that will allow the FAA and industry to focus on other priorities. Withdrawal of these tasks does not prohibit the FAA from issuing future notices on these subject matters or committing the agency to a future course of action.
Federal Highway Administration, DOT.
Notice of intent.
The FWA is issuing this notice to advise the public that an Environmental Assessment (EA) or Environmental Impact Statement (EIS) will be prepared for the proposed construction of a highway on new alignment from I-65 west to US 31W in northern Warren County, Kentucky.
Robert Farley, Area Engineer, Federal Highway Administration, John C. Watts Federal Building and U.S. Courthouse, 330 W. Broadway, Frankfort, Kentucky 40601. Telephone 502-223-6744, Fax 502-223-6735.
The FHWA in cooperation with the Kentucky Transportation Cabinet (KYTC) will prepare an EA or EIS for the construction of a highway on new alignment from I-65 west to US 31W in the vicinity of the Kentucky TriModal Transpark (KTT). The EA or EIS will complement previous studies conducted by KYTC and the local Intermodal Transpark Authority (ITA) for the KTT development area and will detail environmental, social, and economic impacts associated with the proposed action.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies. A series of public meetings and a public hearing will be held while preparing this EA or EIS. Public notice will be given of the time and place of the meetings and hearing. The EA or draft EIS will be available for public and agency reviews and comment prior to the public hearing.
The public meetings and hearing will also be a forum for public consultation and involvement on issues associated with the National Historic Preservation Act (Section 106) when appropriate. Interested persons, groups, or parties who wish to be consulting parties under Section 106 for this project should submit a written request to the KYTC Bowling Green District Office, Attn: Kenneth Cox, Project Manager, 900 Morgantown Road, Bowling Green, Kentucky 42102. Telephone 270-746-7898, Fax 270-746-7643.
To ensure the full range of issues related to the proposed action is addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning the proposed action and the EA or EIS may also be directed to the KYTC District Office or FHWA at the addresses provided above.
National Highway Traffic Safety Administration (NHTSA), DOT.
Extension of comment period.
This document announces the extension of the comment period on a petition for NHTSA to decide that 2003 Ferrari 360 Spider and Coupe passenger cars that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards are eligible for importation into the United States.
The closing date for comments on the petition is September 16, 2003.
Comments are to be submitted to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590. [Docket hours are from 9 am to 5 pm]. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the document (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151).
On August 1, 2003, NHTSA published a notice (at 68 FR 45309) that it had received a petition to decide that nonconforming 2003 Ferrari 360 Spider and Coupe passenger cars are eligible for importation into the United States. The notice solicited public comments on the petition and stated that the closing date for comments is September 2, 2003.
This is to notify the public that NHTSA is extending the comment period on this petition, and allowing it to run until September 16, 2003. This reopening is based on a request dated August 25, 2003, from Ferrari North America, Inc. (“Ferrari”), the U.S. representative of the vehicle's manufacturer. Ferrari stated that the extension was needed because the personnel and information required for its analysis of the petition are located at the company's factory in Italy, and that the necessary personnel were unavailable for much of the month of August due to the traditional August holiday that is taken in that country. Owing to the technical nature of the analysis that Ferrari stated is necessary to assess the petition and conformance issues raised therein, the company asserted that the unavailability of its Italy-based personnel and information made it impossible for it to complete its analysis before the closing date specified in the notice of petition. The company contended that a two-week extension would not prejudice the parties or unduly delay the proceeding.
NHTSA has granted Ferrari's request. All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(B) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
On August 21, 2003, Norfolk Southern Railway Company (NSR) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 to abandon a 5-mile portion of rail line extending between milepost HG-47.0 at Gastonia and milepost HG-52.0 at Dallas (Gebo), in Gaston County, NC. The line traverses U.S. Postal Service Zip Codes 28052, 28053, 28054 and 28034 and includes stations at Gastonia and Dallas (Gebo).
The line does not contain federally granted rights-of-way. Any documentation in NSR's possession will be made available promptly to those requesting it.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by December 9, 2003.
Any offer of financial assistance under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each offer must be accompanied by a $1,100 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than September 30, 2003. Each trail use request must be accompanied by a $150 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-290 (Sub-No. 240X) and must be sent to: (1) Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001; and (2) James R. Paschall, Norfolk Southern Railway Company, Three Commercial Place, Norfolk, VA 23510. Replies to the NSR petition are due on or before September 30, 2003.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at (202) 565-1592 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 565-1539. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before October 10, 2003, to be assured of consideration.
Internal Revenue Service, Treasury.
Notice of closed meeting of Art Advisory Panel.
Closed meeting of the Art Advisory Panel will be held in Washington, DC.
The meeting will be held October 8, 2003.
The closed meeting of the Art Advisory Panel will be on October 8, 2003, in Room 4600E beginning at 9:30 a.m., Franklin Court Building, 1099 14th Street, NW., Washington, DC 20005.
Karen Carolan, C:AP:AS, 1099 14th Street, NW., Washington, DC 20005. Telephone (202) 694-1864 (not a toll free number).
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988), that a closed meeting of the Art Advisory Panel will be held on October 8, 2003, in Room 4600E beginning at 9:30 a.m., Franklin Court Building, 1099 14th Street, NW., Washington, DC 20005.
The agenda will consist of the review and evaluation of the acceptability of fair market value appraisals of works of art involved in Federal income, estate, or gift tax returns. This will involve the discussion of material in individual tax returns made confidential by the provisions of 26 U.S.C. 6103.
A determination as required by section 10(d) of the Federal Advisory Committee Act has been made that this meeting is concerned with matters listed in section 552b(c)(3), (4), (6), and (7), and that the meeting will not be open to the public.
The Department of Veterans Affairs (VA) gives notice under Pub. L. 92-463 (Federal Advisory Committee Act), that a meeting of the Advisory Committee on Former Prisoners of War (FPOW) will be held on October 20-22, 2003, at the Department of Veterans Affairs Greater Los Angeles Healthcare System, 11301 Wilshire Blvd., West Los Angeles, CA 90073. The meeting will be held in the Multipurpose Auditorium, Bldg. 500, Room #1281, and is open to the public. Each day the meeting will convene at 9 a.m. and end at 4:30 p.m.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of benefits under Title 38, United States Code, for veterans who are former prisoners of war, and to make recommendations on the needs of such veterans for compensation, health care and rehabilitation.
The agenda on October 20 will begin with an introduction of Committee members, remarks from dignitaries, a
Members of the public may direct questions or submit prepared statements for review by the Committee in advance of the meeting, in writing only, to Mr. Ronald J. Henke, Director, Compensation and Pension Service (21), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Submitted materials must be received by October 13, 2003.
By Direction of the Secretary.
Department of Veterans Affairs.
Notice of intent to designate.
The Secretary of the Department of Veterans Affairs (VA) intends to designate approximately .48 acres of real property at the Department of Veterans Affairs Medical Center, in Charleston, South Carolina, to be leased under an enhanced-use lease. The Department intends to enter into a 35 to 75-year lease of such property with the “Medical University Hospital Authority,” a public authority of the State of South Carolina and an affiliate of the “Medical University of South Carolina,” who would finance, design, develop, maintain and manage the expansion of its medical center complex.
Anthony Sherman, Capital Asset Management and Planning Service (182C), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-6863.
38 U.S.C. 8161,
In rule document 03-20094 beginning on page 47221 in the issue of Friday, August 8, 2003, make the following correction:
On page 47236, in appendix B, in the table, in the last line “&− 1=10%” should read “− 1=10%”.
In proposed rule document 03-21013 beginning on page 50900 in the issue of Friday, August 22, 2003, make the following corrections:
1. On page 50900, in the first column, under the heading
2. On the same page, in the same column, under the heading
3. On page 50908, in the table heading, “
4. On page 50917, in Table 13, under the heading “Score”, in the third entry, “10” should read, “5”.
5. On page 50937, in appendix A to 32 CFR part 179, in Table 11, under the heading “Classification and description”, in the seventh line, “CWM 20 known” should read, “CWM known”.
6. On page 50940, in the same appendix, in Table 19, under the heading “Score”, in the fourth entry, “10” should read, “0”.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to amend certain provisions of the wastewater regulations for the Centralized Waste Treatment Point Source Category. This regulation established effluent limitations guidelines, pretreatment standards and new source performance standards under the Clean Water Act (CWA) for the centralized waste treatment industry (CWT). Following promulgation of the regulations, a number of CWT facilities petitioned EPA to reconsider the limitations and standards for certain pollutants. Today's proposal provides a preliminary response to those petitions and the supporting data submitted by the petitioners. The amendments would delete certain selenium limitations and standards from the Metals Treatment and Recovery subcategory, as well as the the Multiple Wastestreams subcategory. This action also proposes to delete the barium, molybdenum, antimony, and titanium limitations and standards from the Oils Treatment and Recovery subcategory, and revise the Multiple Wastestreams subcategory, to reflect these changes. Furthermore, this proposal would increase the maximum monthly average BOD
Comments must be received by October 10, 2003. Persons wishing to request a public hearing regarding the pretreatment standards must do so by September 25, 2003. If commenters request a public hearing, EPA will hold a public hearing on these proposed pretreatment standards on October 10, 2003 from 10 a.m. to 12 noon,
You can submit comments electronically, by mail, or through hand delivery/courier. Please mail comments to the Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460 or submit them electronically to
Elwood H. Forsht, EPA Office of Water by phone at (202)566-1025 or by e-mail at
Entities potentially regulated by this action include the following types of facilities that discharge pollutants directly or indirectly to U.S. waters.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the definitions and applicability criteria in §§ 437.1, 437.2, 437.10, 437.20, 437.30, and 437.40 of title 40 of the Code of Federal Regulations. If you have questions about the applicability of this action to a particular entity, consult the person listed in the preceding
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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 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 I.B.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 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. Please submit with your comments any references cited in your comments. 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 these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Section I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send information identified as CBI by mail only to the following address: Office of Science and Technology, Mailcode 4303T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention: Elwood Forsht, Docket ID No. OW-2003-0075.
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
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 identified in the
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 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
If commenters request a public hearing on the pretreatment standards, a hearing will be held on October 10, 2003. During the pretreatment hearing, the public will have the opportunity to provide oral comment to EPA. EPA will not address any issues raised during the hearing at that time but these comments will be recorded and included in the public record for the rule. Persons wishing to attend or to present formal comments at the public hearing should contact Mr. Elwood Forsht before September 25, 2003 and should have a written copy for submittal at the hearing.
The U.S. Environmental Protection Agency is promulgating these regulations under the authority of 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342 and 1361.
Congress adopted the Clean Water Act (CWA) to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters” (section 101(a), 33 U.S.C. 1251(a)). To achieve this, the CWA prohibits the discharge of pollutants into navigable waters except in compliance with the statute. The CWA confronts the problem of water pollution on a number of different fronts. It relies primarily, however, on establishing restrictions on the types and amounts of pollutants discharged from various industrial, commercial, and public sources of wastewater.
Congress recognized that regulating only those sources that discharge effluent directly into the Nation's waters would not achieve the CWA's goals. Consequently, the CWA requires EPA to set nationally-applicable pretreatment standards that restrict pollutant discharges for those who discharge wastewater indirectly through sewers flowing to publicly-owned treatment works (POTWs) (section 307(b) and (c), 33 U.S.C. 1317(b) and (c)). National pretreatment standards are established for those pollutants in wastewater from indirect dischargers which may pass through or interfere with POTWs operations. Generally, pretreatment standards are designed to ensure that wastewater from direct and indirect industrial dischargers are subject to similar levels of treatment. POTWs must also implement local pretreatment limits applicable to their industrial indirect dischargers to satisfy local requirements (40 CFR 403.5).
Direct dischargers must comply with effluent limitations in National Pollutant Discharge Elimination System (NPDES) permits; indirect dischargers must comply with pretreatment standards. These limitations and standards are established by regulation for categories of industrial dischargers and are based on the degree of control that can be achieved using various levels of pollution control technology.
On December 22, 2000, EPA promulgated regulations establishing effluent limitations guidelines, pretreatment standards for new and existing sources, and new source performance standards for the Centralized Waste Treatment (CWT) Point Source Category (65 FR 81242).
The regulations control the discharges from CWT facilities that receive waste, wastewater, or used material from off-site. EPA established limitations and standards for four CWT subcategories. The first three subcategories cover facilities that treat or recover only one type of waste, either metal-bearing (Subcategory A—Metals Treatment and Recovery), oily (Subcategory B—Oils Treatment and Recovery), or organic (Subcategory C—Organics Treatment and Recovery). The fourth subcategory, Subcategory D—Multiple Wastestreams, covers facilities that treat or recover some combination of metal-bearing, oily, and organic wastes, wastewater, or used material received from off-site. Using Subcategory D limitations and standards simplifies implementation of the rule and compliance monitoring for CWT facilities that treat wastes subject to more than one of the first three subcategories. These facilities may choose to comply with the provisions of the multiple wastestreams subcategory D rather than subcategories A, B, or C. However, they must certify that an equivalent treatment system is installed and properly designed, maintained, and operated.
After the Agency published the December 2000 final rule, facilities in the regulated community conducted compliance monitoring studies and began to develop compliance strategies for the regulated pollutants. Based on these efforts, several members of the regulated community and a trade association submitted new information to the Agency and asked EPA to revise certain aspects of the final rule. After our own analysis and review, we determined that EPA should propose several minor modifications to the current rule.
EPA is proposing to amend 40 CFR part 437 by deleting the respective Best Practicable Control Technology Currently Available (BPT), Best Available Technology Economically Achievable (BAT), Pretreatment Standards for Existing Sources (PSES), and Pretreatment Standards for New Sources (PSNS) limitations and standards for selenium from §§ 437.11, 437.13, 437.15 and 437.16. Section VI below describes the revision to the related segments of the Multiple Wastestreams Subcategory to reflect deletion of selenium from these sections of the Metals Treatment and Recovery
While the data demonstrate that the technology EPA evaluated as the basis for the BPT, BAT, PSES, and PSNS limitations and standards removes selenium, they also show that selenium removal was achieved only in the last stage of the model treatment system—the sand filtration polishing step. The sand filtration polishing step was included in the model technology to ensure compliance with total suspended solids limits (TSS) and not designed to achieve specific metal removals. While it is true that the removal of solids associated with sand filtration will include the removal of associated metals, these metals removals are not achieved at a consistent or predictable rate. It was not EPA's intention to regulate a metal for which removals were obtained only during this final, polishing step of an extended treatment train. EPA is not certain that the identified removals were not an artifact of the particular data set or that such removals are consistent and predictable with this technology. While removals were observed, EPA is not certain that facilities would be able to achieve the consistent removals required for compliance with a specific regulatory limit for selenium. Selenium is the only metal pollutant parameter regulated by the CWT regulation that falls into this category. The docket includes documents which describe EPA's review of the selenium data (DCS 47.1 and 47.2).
Although EPA proposes to delete the regulatory limits for selenium in the selected sections, operation of treatment systems required to achieve compliance with the 14 other metals limits will ensure some continued removal of selenium, even if not at a consistent and predictable rate. EPA estimates that assuming no selenium removals would decrease EPA's December 22, 2000, estimated metals subcategory pollutant reductions by 53 lbs/yr or nearly zero percent of the total estimated reduction of 163 million lbs/yr. Expressed as toxic pound-equivalents, the decrease as a result of assuming no selenium removals is 0.014 percent or 59 lb-eq/yr out of the total estimated reduction of 415,383 lb-eq/yr (DCN 47.3).
In the December 2000 final rule, EPA established, for the Oils Treatment and Recovery Subcategory, direct discharge limitations and standards for barium, molybdenum, antimony, and titanium as well as 18 other pollutants; and pretreatment standards for barium, molybdenum, and antimony as well as 11 other pollutants. The model technology that was the basis for the BPT, BAT, NSPS, and PSNS limitations and standards was emulsion breaking/gravity separation, secondary gravity separation and dissolved air flotation (DAF). The PSES model technology basis was emulsion breaking/gravity separation and DAF.
After publication of the final rule, members of the regulated community evaluated different engineering strategies for complying with the promulgated limitations and standards. Several companies and a trade association submitted new information to EPA demonstrating that the model technology did not consistently remove certain pollutants from oils wastestreams in specified circumstances. They concluded and reported to EPA that the limitations and standards were not technically achievable, petitioning EPA to delete these pollutants from the regulated parameters.
Based on the data submitted to the Agency concerning metals removal and the model technology, EPA reexamined the technology to determine whether it would achieve consistent and predictable removals of metal pollutants. As noted above, the model technology consists of emulsion breaking/gravity separation, secondary gravity separation and DAF. During the DAF phase of treatment, surface active agents, coagulating agents, and polyelectrolytes are added to the wastewater and the pH of the system is adjusted. The effect of the addition of coagulating agents and pH adjustment is to promote precipitation of metals and their consequent removal. Different metals are removed more effectively at different concentrations of coagulating agents and at different pH levels. EPA examined its data base to identify which of the metals pollutants were removed consistently and predictably by the treatment system that was the basis for the final limitations. The result of this review demonstrated that removals were not consistent and predictable for the following pollutants: Barium, molybdenum, antimony and titanium. As a result, EPA proposes to remove the limitations and standards for barium, molybdenum, antimony and titanium from Subcategory B and modify the related provisions of Subcategory D to reflect these changes.
Even though this amendment would delete the limitations and standards for these four metal pollutants, the control of other metal pollutants ensures some incidental removals for these parameters. For direct discharge facilities, limitations for nine other metals remain in place. For indirect discharge facilities, pretreatment standards for six other metals remain in place.
EPA proposes to amend 40 CFR part 437 by deleting the respective BPT, BAT, NSPS, PSES, and PSNS limitations and standards for barium from §§ 437.21, 437.23, 437.24, 437.25 and 437.26. Section VI below describes the methodology used to revise the related segments of the Multiple Wastestreams Subcategory to reflect deletion of barium from the Oils Treatment and Recovery subcategory.
EPA received information and data from several companies and a CWT trade association concerning barium concentrations in different types of waste receipts treated at CWT facilities. EPA evaluated this information and concluded that its model technology would not reliably and consistently remove barium to the limits required in the oils subcategory. The record includes the additional information provided to the Agency with the request for changes to the regulation and EPA's review of that information (DCNs 43.2.49, 43.2.51, 43.2.54, 43.2.60, 44.1.1, 44.2, 44.3, 45.29.1, and 47.7).
The commenters noted that CWT facilities accept a variety of oily waste receipts that contain barium including used lubricating oils and greases and oil and gas extraction drilling fluids and brine. The information and data indicates that barium is usually precipitated as barium sulfate and that sedimentation rather than dissolved air flotation would provide more consistent barium removals.
EPA's single-stage DAF model treatment system was designed primarily to remove suspended solids and dispersed oil and grease from oily wastewater. The use of treatment chemicals provides an effective means
Because of the density of barium sulfate and the use of polymers, large floc formations would tend to sink and smaller floc formations would tend to float. However, if colloidal suspensions are formed, DAF would tend to be ineffective. Therefore, removing barium sulfate by DAF requires a careful balance between forming a large enough floc to be floated but not too large to sink. In this situation, it appears that the model DAF technology would not reliably and consistently provide the pollutant reductions that form the basis for the promulgated limitations. Thus, EPA proposes to remove the limitations and standards for barium from Subcategory B and the associated provisions of Subcategory D. We did not intend to regulate a pollutant in the oils waste receipts subcategory for which compliance could not be consistently and predictably achieved with the model DAF treatment system.
Although EPA proposes to delete the regulatory limits for barium, operation of treatment systems required to achieve compliance with other metals limits will ensure some continued removal of barium, even if not at a consistent and predictable rate. Even if there were no incidental removals for barium, the estimated pollutant reduction for this regulation remains relatively unchanged,
EPA proposes to amend 40 CFR part 437 by deleting the respective BPT, BAT, and NSPS limitations and standards for molybdenum, antimony, and titanium from §§ 437.21, 437.23, 437.24; and by deleting the respective PSES and PSNS standards for molybdenum and antimony from §§ 437.25 and 437.26. Section VI below describes the methodology used to revise the related segments of the Multiple Wastestreams Subcategory to reflect deletion of molybdenum, antimony, and titanium from the Oils Treatment and Recovery subcategory.
EPA's single-stage DAF model treatment system was designed primarily to remove suspended solids and dispersed oil and grease from oily wastewater. The use of treatment chemicals provides an effective means of increasing the efficiencies of DAF treatment systems in removing suspended solids and may also enhance the removal of metals (DCN 41.2, pages 8-13 to 15). The conditions under which the model treatment technology operated which EPA evaluated for the final limitations and standards included the addition of treatment chemicals (aluminum sulfate, caustic soda, and polymer) with pH adjustments to relatively strong base levels between 9 to 11. These operating conditions optimize the removals of the more traditional heavy metals including chromium, zinc, lead, nickel, copper, and cadmium.
After publication of the December 2000 final rule, the regulated community evaluated several different engineering strategies for complying with the limitations and standards. Several companies and a CWT trade association submitted new information to EPA demonstrating that the model technology would not consistently remove certain pollutants from oils wastestreams in specified circumstances. They concluded and reported to EPA that the antimony, molybdenum, and titanium limitations and standards were not technically achievable, petitioning EPA to delete these pollutants as regulated parameters. The docket includes the additional information provided to the agency and EPA's review of that information (DCNs 45.12.1, 45.12.2, 45.12.3, 45.12.4, 45.25, 45.25.2, 46.5.1, 46.5.2, 46.5.3, 46.10, 46.11, 46.12, 46.15, 46.21, and 47.5).
Based on the materials submitted to the Agency, EPA reexamined its model technology and the associated removal data. The new information and data demonstrate that the oils subcategory model DAF treatment technology is unable to consistently meet the antimony, molybdenum, and titanium oils subcategory limitations and standards. Furthermore, the new data demonstrate that optimum removals of antimony, molybdenum, and titanium require treatment with high concentrations of iron (ranging from 1,000 to 5,000 mg/l ) and, for antimony and molybdenum, pH adjustments to relatively strong acid levels between 4 to 5. Therefore, to ensure compliance with the antimony, molybdenum, and titanium limitations and standards, many oily waste facilities would need to add a second-stage chemical precipitation step operated at a relatively low pH (between 4 and 5) and/or the addition of large quantities of iron (1,000 to 5,000 mg/l), and followed by clarification or filtration.
EPA did not intend to regulate a pollutant in the oils waste receipts subcategory for which compliance could only be obtained with the addition of uniquely designed chemical precipitation systems to the model technology. Based on the information and data provided, we conclude that in many situations CWT facilities subject to Subpart B would not be able to comply with the antimony, molybdenum, and titanium limitations and standards through the use of the model DAF technology alone. Many facilities would need to add chemical precipitation unit operations uniquely designed for antimony, molybdenum, and titanium removal. Due to these circumstances, EPA proposes to remove the limitations and standards for these pollutants from Subcategory B and revise the associated provisions of Subcategory D.
Although EPA proposes to delete the regulatory limits for antimony, molybdenum, and titanium, operation of treatment systems required to achieve compliance with other metals limits will ensure some continued removal of antimony, molybdenum, and titanium, even if not at consistent and predictable rates. Even if there were no incidental removals for antimony, molybdenum, and titanium, the estimated oils subcategory pollutant reduction for this regulation remains relatively unchanged,
EPA, in the December 2000 final rule, established limitations and standards for facilities that treat a combination of metal-bearing, oily or organic wastes, wastewater or used material. Use of
EPA developed four sets of limitations for each of the possible combinations of the three subcategories of wastestreams. These are mixtures of (1) metal-bearing, oils, and organics waste receipts; (2) metal-bearing and oils waste receipts; (3) metal-bearing and organics waste receipts; and (4) oils and organics waste receipts. EPA derived these limitations and standards by combining pollutant limitations and standards from each possible combination of subcategories and selecting the most stringent pollutant values where they overlap. (For each pollutant, EPA selected the most stringent maximum monthly average limitations and its corresponding maximum daily limitation.) Today's proposal would modify the Multiple Wastestreams Subcategory limitations and standards to account for the removal of selenium from the Metals Subcategory limitations and standards and the removal of barium, molybdenum, antimony and titanium from the Oils Treatment and Recovery Subcategory.
EPA proposes to amend 40 CFR part 437 by deleting the respective BPT, BAT, PSES, and PSNS limitations and standards for selenium from §§ 437.42(b), (c), and (d); 437.44(b), (c), and (d); 437.46(b), (c), and (d); and 437.47(b), (c), and (d). Because selenium was regulated in the Metals Treatment and Recovery Subcategory but not in the Oils or Organics Treatment and Recovery Subcategories, there are no overlapping limitations for this pollutant. Therefore, the result of deleting selenium from the BPT, BAT, PSES, and PSNS segments of the metals subcategory (see Section IV above) would be that selenium limitations and standards would remain only in the NSPS segment of the Multiple Wastestreams Subcategory. The selenium NSPS standards are based on a different model treatment system involving the use of selective metals precipitation.
EPA proposes to amend 40 CFR part 437 by deleting the respective BPT, BAT, NSPS, PSES, and PSNS limitations and standards for barium from §§ 437.42(b), (c), and (e); 437.44(b), (c), and (e); 437.45(b), (c), and (e); 437.46(b), (c), and (e); and 437.47(b), (c), and (e). Because barium was regulated in the Oils Treatment and Recovery Subcategory but not in the Metals or Organics Treatment and Recovery Subcategories, there are no overlapping limitations for this pollutant. Therefore, the result of deleting barium from the oils subcategory (see Section V above) is that there would be no barium limitations and standards for any segment of the Multiple Wastestreams Subcategory.
EPA proposes to amend 40 CFR part 437 by deleting the respective BPT, BAT, NSPS, PSES, and PSNS limitations and standards for molybdenum from §§ 437.42(c), 437.44(c), 437.45(c), 437.46(c), and 437.47(c). EPA had originally promulgated molybdenum limitations for the Oils Treatment and Recovery Subcategory and the Organics Treatment and Recovery Subcategory but not in the Metals Treatment and Recovery Subcategory. If EPA promulgates this amendment as proposed, there would be limitations for this pollutant only in the organics subcategory. Since the organics subcategory molybdenum limitations were more stringent than those in the oils subcategory, the molybdenum limitations in the related segments of the multiple wastestreams subcategory would continue to be based on the organics subcategory limitations.
EPA proposes to amend 40 CFR part 437 by deleting the respective PSES and PSNS standards for antimony from §§ 437.46(e) and 437.47(e), and by revising the respective BPT, NSPS, PSES, and PSNS limitations and standards for antimony in §§ 437.42(b), (c), and (e), 437.45(e), 437.46(b) and (c), and 437.47(b) and (c).
Because antimony was originally regulated for indirect discharges in the Metals and Oils Treatment and Recovery Subcategories but not in the Organics Treatment and Recovery Subcategory, there would be PSES and PSNS standards for this pollutant only in the Metals subcategory, if EPA promulgates the amendments as proposed. The antimony standards in the related indirect discharge segments of the Multiple Wastestreams subcategory would therefore be based on the Metals subcategory limitations.
In the December 2000 rule, EPA regulated antimony for direct discharges in the Metals, Oils, and Organics Treatment and Recovery Subcategories. If EPA promulgates this amendment as proposed, there would be BPT, BAT, and NSPS limitations and standards for this pollutant only in the Metals and Organics subcategories. Therefore the BPT, BAT, and NSPS antimony limitations and standards in the related direct discharge segments of the Multiple Wastestreams subcategory would be based on the most stringent antimony limitations in the overlapping Metals and Organics subcategories.
EPA proposes to amend 40 CFR part 437 by deleting the respective BPT, BAT, and NSPS limitations and standards for titanium from §§ 437.42(e), 437.44(e), and 437.45(e), and by revising the respective BPT limitations for titanium in §§ 437.42(b) and (c). Because titanium was regulated for direct discharges in the Metals and Oils Treatment and Recovery Subcategories but not in the Organics Treatment and Recovery Subcategory, there would be BPT, BAT, and NSPS limitations and standards for this pollutant only in the metals subcategory, if EPA promulgates this amendment as proposed. Therefore the BPT, BAT, and NSPS titanium limitations and standards in the related direct discharge segments of the Multiple Wastestreams subcategory would be based on the titanium limitations and standards in the Metals subcategory.
EPA proposes to correct a technical error contained in the December 22, 2000, final rule. The
The “Authority” citation is revised to conform with current guidance from the Federal Register Office.
The Agency is proposing to delete certain limitations and standards for selenium from the metals subcategory and for antimony, barium, molybdenum, and titanium from the oils subcategory. The proposal also reflects these changes in the multiple wastestreams subcategory. We have concluded that the model technologies that provided the basis for the limitations and standards do not consistently and predictably remove these pollutants to the specified levels for compliance. Nevertheless, operation of treatment systems required to achieve compliance with other metals limits will ensure some continued removal of these five metals, even if not at consistent and predictable rates. Even if there were no incidental removals for these metals, the estimated pollutant reduction for this regulation remains relatively unchanged,
Even though EPA does not believe that the potential increases in pollutant discharges related to the proposed amendments result in any significant environmental effects, we will continue to monitor the discharges from this industry as part of the biennial Effluent Guidelines Program Plans required under section 304(m) of the Clean Water Act.
EPA invites and encourages public participation in this rulemaking. The Agency asks that commenters address whether the record supports EPA's conclusions that the technology on which it based the final limitations and standards does not provide consistent and predictable removals for the pollutants the Agency has proposed to delete from the regulation. Any suggestions for changes or revisions should be supported by adequate technical data.
EPA is particularly interested in receiving comment on an issue raised by the National Oil Recyclers Association (NORA) in its request for deletion of molybdenum limitations from certain subcategories. NORA submitted information to the Agency with a request that EPA delete the molybdenum limitations and standards from the Organics Treatment and Recovery subcategory and from the related sections of the Multiple Wastestreams subcategory (DCNs 45.32 and 45.33). They state that many CWT organics subcategory facilities have molybdenum influent raw waste concentrations that are too high for effective biological treatment. Based on our preliminary assessment of this new information and data we will probably delete the molybdenum limitations from the organics subcategory. However, we are seeking additional information to augment the record before finalizing such a change. As a consequence, EPA is not today proposing to remove the molybdenum limitations and standards as requested by NORA; however, EPA plans to evaluate closely any additional information it receives on this subject. When EPA promulgates the final rule, we will likely delete these limitations and standards from the organics subcategory and the related sections of the multiple wastestream subcategory if we receive adequate supporting documentation. The discussion below describes the kind of information EPA would need before it could delete the molybdenum limitations and standards from the CWT organics subcategory.
Commenters should submit information showing that well-designed and well-operated treatment systems employing the BAT technology used as the basis for the organics subcategory limitations and standards will not provide consistent and predictable removals for molybdenum.
The information and data should characterize the influent pollutant levels (including molybdenum) as well as the effluent levels being discharged in the treated final effluent resulting from the treatment of organics waste receipts at facilities with BAT technology for the organics subcategory. To the extent possible, we want to characterize organics subcategory treatment prior to commingling with wastewaters from other subcategories, non-contaminated stormwater, or other sources of water.
Comments should include sufficient information and data to determine if the biological treatment system is well-designed and well-operated during the sampling period(s). To the extent possible, the information and data should include (1) block diagrams identifying the influent, intermediate, and final outfall sampling points; holding tanks and equalization units; each component or stage of the biological treatment system; and any post biological unit operations; (2) the hydraulic and pollutant load design bases including hydraulic residence times in each stage of the biological treatment system; (3) the operational information and data that demonstrate good operation for the sampling period(s); (4) relative flows of the influent waste receipts and equalization characteristics; and (5) analytical and flow data for each sampling point including, to the extent available, the design and operation parameters, molybdenum, total suspended solids (TSS), 5-day biochemical oxygen demand (BOD
EPA is likely to take final action on today's proposal with only a short amount of time remaining before the December 22, 2003, deadline for indirect dischargers to comply with the 2000 pretreatment standards that are the subject of today's proposal. EPA understands that POTWs are already preparing pretreatment control mechanisms to implement those pretreatment standards. In view of the fact that EPA's rulemaking and the issuance of pretreatment control mechanisms are proceeding on parallel tracks, EPA recommends that the POTWs consider one of several approaches to account for the situation. For example, a POTW could decide to include, in the proposed and, if necessary, final amendments to its local pretreatment program, alternative sets of limitations that reflect both the requirements as they exist in unamended form today and the requirements that would apply if EPA promulgates amendments as proposed today. The first set of limitations would establish requirements for each
Alternatively, EPA recommends that the POTWs consider including, in the proposed and, if necessary, final amendments to its pretreatment program a provision stating that the limitations for selenium, barium, molybdenum, antimony, and titanium correspond to those pretreatment standards that are in effect for Clean Water Act purposes on December 22, 2003. By including a provision like this, the POTW can incorporate the most recent EPA decisions regarding pretreatment standards for these pollutants without the need for further administrative proceeding. The POTW would be free, of course, following promulgation of any changes to the pretreatment standards to revise its local pretreatment program specifically to reflect any changes.
Under Executive Order 12866 [58 FR 51735, (October 4, 1993)], the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
It has been determined that this proposal is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.
This action would not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
For purposes of assessing the impact of today's proposed rule on small entities, a small entity is defined as (1) a small business with gross revenue under $6 million (based on Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The proposal rule removes or revises the limitations and standards for five pollutants from certain provisions of the current rule and corrects an error in another provision. These changes reduce the economic impacts of the regulation on those entities, including small entities, subject to the limitations and pretreatment standards. The estimated reduction in the analytical laboratory costs of compliance is about $496,000 (DCN 47.6). The change to the BOD5 limitation will result in no change in economic burden because this modification merely corrects the limitation to reflect the BOD5 limitation in the August 28, 2000, version of the regulation signed by the Administrator.
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the
EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local and tribal governments, in the aggregate, or the private sector in any one year. It deletes or revises the limitations and standards for five pollutants from certain provisions of the CWT guideline and corrects an inadvertent error in another limitation in the codified version of the current rule. The effect of these changes is to reduce the cost of the CWT regulations promulgated earlier. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.
For the same reason, EPA has determined that this proposal contains no regulatory requirements that might significantly or uniquely affect small governments. The proposal, if promulgated, would not uniquely affect small governments because small and large governments are affected in the same way. Thus, today's proposed rule is not subject to the requirements of section 203 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Today's proposed rule would amend effluent limitations and pretreatment standards which impose requirements that apply to facilities when they discharge wastewater or introduce wastewater to a POTW. It deletes or revises the limitations and standards for five pollutants from certain provisions of the CWT guideline and corrects an inadvertent error in another limitation in the codified version of the current rule. EPA has determined that there are no CWT facilities owned and/or operated by State or local governments that would be subject to today's proposed rule. Further, the proposed rule would only incidentally affect State and local governments in their capacity as implementers of CWA NPDES permitting programs and approved pretreatment programs. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, 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. It deletes or revises the limitations and standards for five pollutants from certain provisions of the current rule and corrects an inadvertent printing error in another section. EPA has not identified any CWT facilities covered by today's proposed rule that are owned and/or operated by Indian tribal governments. No Indian tribes are responsible for implementing the CWA NPDES permitting program. Thus, Executive Order 13175 does not apply to this rule. In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits comments on this proposed rule from tribal officials.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This proposal is not subject to E.O. 13045 because it is not economically significant as defined under Executive Order 12866. Further, this proposal does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children.
This proposal is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355; May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
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), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Environmental protection, Waste treatment and disposal, Water pollution control.
For reasons set out in the preamble, 40 CFR chapter I is proposed to be amended as follows:
1. The authority citation for part 437 is revised to read as follows:
33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361.
2. Section 437.11(a) is amended by removing the entry for “Selenium” in the BPT Limitations table, under the heading “Metal Parameters.”
3. Section 437.13(a) is amended by removing “selenium,.”
4. Section 437.15(a) is amended by removing “selenium,.”
5. Section 437.16(a) is amended by removing “selenium,.”
6. Section 437.21 is amended by removing the following entries in the BPT Limitations table, under the heading “Metal Parameters”:
a. Antimony.
b. Barium.
c. Molybdenum.
d. Titanium.
7. Section 437.23 is amended by removing the following entries:
a. “antimony,.”
b. “barium,.”
c. “molybdenum,.”
d. “titanium,.”
8. Section 437.24 is amended by removing the following entries:
a. “antimony,.”
b. “barium,.”
c. “molybdenum,.”
d. “titanium,.”
9. Section 437.25 is amended by removing the following entries in the Pretreatment Standards (PSES) table, under the heading “Metal Parameters'':
a. Antimony.
b. Barium.
c. Molybdenum.
10. Section 437.26 is amended by removing the following entries:
a. “antimony,.”
b. “barium,.”
c. “molybdenum,.”
11. Section 437.42 is amended as follows:
a. In paragraph (b)(1) by removing the following entries in the BPT Limitations table, under the heading “Metal Parameters'':
i. Barium.
ii. Selenium.
b. In paragraph (b)(1) by revising the entry for “Antimony” in the BPT Limitations table under the heading “Metal Parameters” to read as follows:
(b) * * *
(1) * * *
c. In paragraph (b)(1) by revising the entry for “Titanium” in the BPT Limitations table under the heading “Metal Parameters” to read as follows:
(b) * * *
(1) * * *
d. In paragraph (c)(1) by removing the following entries in the BPT Limitations table, under the heading “Metal Parameters'':
i. Barium.
ii. Molybdenum.
iii. Selenium.
e. In paragraph (c)(1) by revising the entry for “Antimony” in the BPT Limitations table under the heading “Metal Parameters” to read as follows:
(c) * * *
(1) * * *
f. In paragraph (c)(1) by revising the entry for “Titanium” in the BPT Limitations table under the heading “Metal Parameters” to read as follows:
(c) * * *
(1) * * *
g. Paragraph (d)(1) is amended by:
i. Revising the entry for “BOD
(d) * * *
(1) * * *
ii. Removing the entry for “Selenium” in the BPT Limitations table under the heading “Metal Parameters.”
h. Paragraph (e) is amended by removing the following entries in the BPT Limitations table under the heading “Metal Parameters'':
i. Barium.
ii. Titanium.
i. Paragraph (e) is amended by revising the entry for “Antimony” in the BPT Limitations table under the heading “Metal Parameters” to read as follows:
(e) * * *
12. Section 437.44 is amended as follows:
a. In paragraph (b)(1) by removing the following entries in the BAT Limitations table, under the heading “Metal Parameters'':
i. Barium.
ii. Selenium.
b. In paragraph (c)(1) by removing the following entries in the BAT Limitations table, under the heading “Metal Parameters'':
i. Barium.
ii. Molybdenum.
iii. Selenium.
c. In paragraph (d)(1) by removing the entry for “Selenium” in the BAT Limitations table under the heading “Metal Parameters.”
d. In paragraph (e) by removing the following entries in the BAT Limitations table under the heading “Metal Parameters'':
i. Barium.
ii. Titanium.
13. Section 437.45 is amended as follows:
a. In paragraph (b)(1) by removing the entry for “Barium” in the Performance Standards table, under the heading “Metal Parameters.”
b. In paragraph (c)(1) by removing the following entries in the Performance Standards table, under the heading “Metal Parameters”:
i. Barium.
ii. Molybdenum.
c. In paragraph (e) by removing the following entries in the Performance Standards table under the heading “Metal Parameters”:
i. Barium.
ii. Titanium.
d. In paragraph (e) by revising the entry for “Antimony” in the Performance Standards table under the heading “Metal Parameters” to read as follows:
(e) * * *
14. Section 437.46 is amended as follows:
a. In paragraph (b)(1) by removing the following entries in the Pretreatment Standards (PSES) table, under the heading “Metal Parameters”:
i. Barium.
ii. Selenium.
b. In paragraph (b)(1) by revising the entry for “Antimony” in the Pretreatment Standards (PSES) table under the heading “Metal Parameters” to read as follows:
(b) * * *
(1) * * *
c. In paragraph (c)(1) by removing the following entries in the Pretreatment Standards (PSES) table, under the heading “Metal Parameters”:
i. Barium.
ii. Molybdenum.
iii. Selenium.
d. In paragraph (c)(1) by revising the entry for “Antimony” in the Pretreatment Standards (PSES) table under the heading “Metal Parameters” to read as follows:
(c) * * *
(1) * * *
e. In paragraph (d)(1) by removing the entry for “Selenium” in the Pretreatment Standards (PSES) table under the heading “Metal Parameters.”
f. In paragraph (e) by removing the following entries in the Pretreatment Standards (PSES) table under the heading “Metal Parameters”:
i. Antimony.
ii. Barium.
15. Section 437.47 is amended as follows:
a. In paragraph (b)(1) by removing the following entries in the Pretreatment Standards (PSNS) table, under the heading “Metal Parameters”:
i. Barium.
ii. Selenium.
b. In paragraph (b)(1) by revising the entry for “Antimony” in the Pretreatment Standards (PSNS) table under the heading “Metal Parameters” to read as follows:
(b) * * *
(1) * * *
c. In paragraph (c)(1) by removing the following entries in the Pretreatment Standards (PSNS) table, under the heading “Metal Parameters”:
i. Barium.
ii. Molybdenum.
iii. Selenium.
d. In paragraph (c)(1) by revising the entry for “Antimony” in the Pretreatment Standards (PSNS) table under the heading “Metal Parameters” to read as follows:
(c) * * *
(1) * * *
e. In paragraph (d)(1) by removing the entry for “Selenium” in the Pretreatment Standards (PSNS) table under the heading “Metal Parameters.”
f. In paragraph (e) by removing the following entries in the Pretreatment Standards (PSNS) table under the heading “Metal Parameters”:
i. Antimony.
ii. Barium.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations that provide guidance regarding the treatment of controlled services transactions under section 482 and the allocation of income from intangibles, in particular with respect to contributions by a controlled party to the value of an intangible that is owned by another controlled party. These proposed regulations potentially affect controlled taxpayers within the meaning of section 482. The proposed regulations provide updated guidance that is necessary to reflect economic and legal developments since the issuance of the current guidance. This document also provides a notice of public hearing on these proposed regulations.
Written or electronic comments must be received December 9, 2003. Outlines of topics to be discussed at the public hearing scheduled for January 14, 2004, at 10 a.m. must be received by December 23, 2003.
Send submissions to CC:PA:LPD:PR (REG-146893-02 and REG-115037-00), room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-146893-02 and REG-115037-02), Courier's desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20044. Alternatively, taxpayers may submit electronic comments directly to the IRS Internet site at
Concerning the proposed regulations, J. Peter Luedtke or Helen Hong-George, (202) 435-5265; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Sonya M. Cruse, (202) 622-7180 (not toll-free numbers).
Section 482 of the Internal Revenue Code generally provides that the Secretary may allocate gross income, deductions and credits between or among two or more taxpayers owned or controlled by the same interests in order to prevent evasion of taxes or to clearly reflect income of a controlled taxpayer. Comprehensive regulations under section 482 published in the
While comprehensive in other respects, the regulations issued in the mid-1990s did not modify substantively the 1968 regulations relating to controlled services transactions. The current services regulations at § 1.482-2(b) provide generally that where one member of a controlled group performs services for the benefit of another member without charge, or at a charge that is not equal to an arm's length charge, the Commissioner may make appropriate allocations to reflect an arm's length charge for such services. The determination of the arm's length charge depends on whether the services transaction is an “integral part” of the business of the renderer or recipient of the services. The current services regulations provide several overlapping quantitative and qualitative tests to determine whether a services transaction is integral.
Under the current services regulations, the arm's length charge for non-integral services is deemed to be equal to the “costs or deductions” incurred with respect to the services, unless the taxpayer establishes that another charge is more appropriate. General guidance is provided regarding the definition of cost and the appropriate allocation of costs to particular services.
The arm's length charge for integral services under the current services regulations is “the amount which was charged or would have been charged for the same or similar services in independent transactions with or between unrelated parties under similar circumstances considering all relevant facts.” No guidance is provided regarding the methods that may be used to determine whether a charge is consistent with an arm's length charge.
The Treasury Department and the IRS issued final regulation § 1.482-4(f)(3) as part of the 1994 regulations. The preamble to those regulations states that the rules of § 1.482-4(f)(3) were necessary in order “to identify the controlled taxpayer that should recognize the income attributable to intangible property.” Section 1.482-4(f)(3) identifies that party by providing rules to determine the owner, for section 482 purposes, of the rights to exploit an intangible to which income was attributable. Under those rules, the legal owner of an intangible, the taxpayer with a right to exploit the intangible, and even a taxpayer that contributes to the development or enhancement of the intangible could be deemed “owners” of that intangible, entitled to a portion of the income attributable to the intangible.
These proposed regulations provide updated guidance under section 482 that replaces existing guidance under § 1.482-2(b) relating to controlled services transactions and existing guidance under § 1.482-4(f)(3) relating to the allocation of income attributable to intangible property. These proposed regulations also make conforming and other changes to provisions of the current regulations under sections 482 and 6662 that are related to this guidance.
These proposed regulations provide updated guidance under section 482 relating to controlled services transactions. The Treasury Department and the IRS believe that such guidance is necessary to reflect economic and legal developments since the issuance of the 1968 regulations. In the last 35 years, cross-border services have become an increasingly large and important segment of the U.S. and global economies. In particular, cross-border services transactions make up an increasingly significant segment of cross-border transactions among members of controlled groups.
Legal developments in the transfer pricing area since 1968 include the amendment of section 482 in 1986 to provide for the commensurate with income standard in the context of transfers of intangible property and the issuance in the mid-1990s of updated
These proposed regulations provide generally that the arm's length amount charged in a controlled services transaction must be determined under one of the transfer pricing methods provided for or referenced in the proposed regulations. The guidance regarding transfer pricing methods provided for in the proposed regulations generally is consistent with the current regulatory guidance regarding the transfer pricing methods applicable to transfers of tangible or intangible property and is consistent with international standards in this area. In addition, the proposed regulations provide a new cost-based method that may be used to price low-margin controlled services transactions that meet certain quantitative and qualitative conditions and requirements. This simplified cost-based method generally requires a less robust analysis of services transactions within its scope than would be required under the other pricing methods. The simplified method is intended to preserve aspects of the current rules that provide appropriately reduced administrative and compliance burdens for low-margin services while bringing the current rules more into line with the arm's length standard and eliminating aspects of the current rules that have proved problematic.
The proposed regulations provide updated guidance consistent with international standards in this area on the threshold issue of whether activities constitute the rendering of services for the benefit of another member of a controlled group.
The proposed regulations provide guidance to better coordinate and harmonize the rules applicable to services transactions with the rules for other types of transactions under section 482, in particular transfers of intangible property. The Treasury Department and the IRS believe that such guidance is necessary to mitigate the extent to which the form or characterization of a transfer of intangibles as the rendering of services can lead to inappropriate results. The Treasury Department and the IRS believe that the transfer pricing rules should reach similar results in the case of economically similar transactions, regardless of the characterization or structuring of such transactions. Thus, several provisions of the proposed regulations are intended to minimize or to eliminate the differences between the transfer pricing analysis of services transactions related to intangibles and the analysis of transfers of intangible property. In particular, the proposed regulations provide that the arm's length result for a services transaction that effects the transfer of intangible property must be determined or corroborated by an analysis under the transfer pricing rules for transfers of intangible property. In addition, the proposed regulations limit the use of the simplified cost-based method in the case of services that involve the use of valuable intangibles. The proposed regulations also provide guidance regarding the use or imputation of contingent-payment arrangements in the context of services transactions, and provide generally applicable guidance on the application of the residual profit split method to make that method more suitable to the analysis of services transactions where appropriate. The cumulative effect of these provisions is to make available in connection with the transfer pricing of controlled services relating to intangibles the analytical tools that are available in connection with the transfer pricing of transfers of intangible property, including the possibility of analyzing transactions as multi-year arrangements in which the consideration for services rendered in one tax accounting period may be due in later periods.
These proposed regulations also update guidance under existing § 1.482-4(f)(3) relating to the allocation of income attributable to intangible property. The Taxpayers and other commentators have criticized the framework of § 1.482-4(f)(3). In particular, commentators have questioned the use of ownership for purposes of section 482, as distinct from legal ownership or ownership for tax purposes more generally, as an analytical tool for determining the appropriate allocation of income attributable to an intangible. The Treasury Department and the IRS believe that existing § 1.482-4(f)(3), when properly applied, generally reaches appropriate results in allocating income attributable to intangible property. However, the Treasury Department and the IRS are concerned that the regulation may be misapplied to reach “all or nothing” results based on a determination of ownership in cases where an arm's length analysis in accordance with the section 482 regulations would require that the income attributable to an intangible be divided among the controlled taxpayers that made significant contributions to develop or enhance that intangible, and that hold legal rights with respect to that intangible.
As a result, the Treasury Department and the IRS believe that the analytical framework of § 1.482-4(f)(3) should be modified. The rules for determining the ownership of an intangible generally should be distinct from the rules for determining the allocation of income from an intangible. The income attributable to an intangible should be allocated among controlled taxpayers under the arm's length standard, in accordance with each party's contributions to the development or enhancement of that intangible and its ownership interests (if any). This analysis generally will preclude “all or nothing” results. The proposed modifications to § 1.482-4(f)(3) are possible because of proposed changes to the treatment of controlled services transactions, in particular the conditions and requirements on the use of the simplified cost-based method and the provisions intended to better coordinate and harmonize the rules applicable to services transactions with the rules for transfers of intangible property (including guidance on services that effect transfers of intangible property and guidance on the residual profit split method and contingent payment arrangements).
Consistent with the rules governing transfers of tangible and intangible property under existing §§ 1.482-3 and 1.482-4, respectively, proposed § 1.482-9(a) provides that the arm's length amount charged in a controlled services transaction must be determined under one of the methods described or referenced in the proposed regulations. Also consistent with the rules governing transfers of tangible and intangible property, the proposed regulations provide guidance concerning selection and application of the appropriate method by explicitly incorporating the general rules in § 1.482-1 (including the best method rule of § 1.482-1(c), the comparability analysis of § 1.482-1(d), and the arm's length range of § 1.482-1(e)) of the existing regulations.
The proposed regulations specify six methods applicable to controlled services transactions. Proposed § 1.482-9(a) sets out four new methods applicable to services: the comparable uncontrolled services price method, the gross services margin method, the cost of services plus method, and the
Proposed § 1.482-9(a)(1) provides that the general rules under § 1.482-1 of the existing regulations, including the best method rule of existing § 1.482-1(c), the comparability standards of existing § 1.482-1(d), and the rules regarding determination of an arm's length range under existing § 1.482-1(e), generally apply to the determination of an appropriate arm's length charge for controlled services transactions. The best method rule under existing § 1.482-1(c) provides that an arm's length result must be determined under the method that, given the facts and circumstances, provides the most reliable measure of an arm's length result. Existing § 1.482-1(c)(2) provides two primary factors to consider in determining which method is the most reliable: the degree of comparability between the controlled transactions and any uncontrolled comparables, and the quality of data and assumptions used in the analysis.
The proposed regulations incorporate the comparability factors in existing § 1.482-1(d) because these factors generally are relevant under all methods. In addition, the description of each of the methods set out in the proposed regulations provides other comparability factors that may be of particular importance in the context of that method as applied to a controlled services transaction.
Proposed § 1.482-9(b) sets forth the comparable uncontrolled services price method. This method evaluates whether a controlled services transaction satisfies the arm's length standard by comparing the price of a controlled services transaction with the price charged in a comparable uncontrolled services transaction. This method is analogous to the comparable uncontrolled price method of § 1.482-3(b) in the context of transfers of tangible property. Proposed § 1.482-9(b)(1) provides that this method ordinarily is used where the controlled services are identical to or have a high degree of similarity to the services in the uncontrolled transaction.
The proposed regulations provide that all of the comparability factors described in existing § 1.482-1(d) must be considered, but emphasize that similarity in the nature of the services and valuable intangibles used, if any, in providing the services are the most important factors in determining comparability under this method. Consistent with the best method rule, proposed § 1.482-9(b)(2)(ii) provides that the comparable uncontrolled services price method generally provides the most direct and reliable measure of an arm's length result if an uncontrolled transaction either has no differences from the controlled services transaction or has only minor differences that have a definite and reasonably ascertainable effect on price, and appropriate adjustments may be made for such differences. Proposed § 1.482-9(b)(4) provides several examples that illustrate the application of the comparable uncontrolled services price method to cases in which the comparable uncontrolled transactions are internal or external.
The Treasury Department and the IRS recognize that, under certain circumstances, uncontrolled parties may use proprietary pricing models or other indirect methods to establish the price charged to uncontrolled parties in a services transaction. Proposed § 1.482-9(b)(5) provides that such data may be used as indirect evidence of a comparable uncontrolled services price if certain requirements are met. This provision is analogous to the provision regarding indirect evidence of comparable uncontrolled prices in § 1.482-3(b)(5) in the context of transfers of tangible property.
Proposed § 1.482-9(c) sets forth the gross services margin method. This method evaluates the arm's length price charged in a controlled services transaction by reference to the gross services profit margin realized in uncontrolled transactions that involve similar services. Similar to the resale price method provided for in § 1.482-3(c) in the context of transfers of tangible property, the charge under this method is calculated based on the price paid in an underlying and related uncontrolled transaction undertaken by the controlled group.
Proposed § 1.482-9(c)(1) provides guidance regarding the circumstances in which this method ordinarily would be used. This method ordinarily is used in cases where a controlled taxpayer performs functions or services in connection with a “related uncontrolled transaction” between a member of the controlled group and an uncontrolled taxpayer. For example, this method may be used where a controlled taxpayer renders services (agent services) to another member of the controlled group in connection with a transaction between that other member and an uncontrolled taxpayer. This method also may be used in cases where a controlled taxpayer contracts to provide services to an uncontrolled taxpayer (intermediary function) and another member of the controlled group actually performs the services provided.
Proposed § 1.482-9(c)(2)(i) provides that the gross services margin method evaluates whether the price charged or amount retained by a controlled taxpayer is arm's length by determining the “appropriate gross services profit” of the controlled taxpayer. If one controlled taxpayer renders services to another member of a controlled group with respect to a transaction between that other member of the controlled group and an uncontrolled taxpayer, the price charged to the other member under the gross services margin method is the appropriate gross services profit of the controlled taxpayer that performed the agent services. In cases where one controlled taxpayer contracts to provide services to an uncontrolled taxpayer and another member of the controlled group actually performs those services, the price charged to the controlled intermediary under the gross services margin method is determined by subtracting from the “applicable uncontrolled price” the appropriate gross services profit of the intermediary controlled taxpayer.
Proposed § 1.482-9(c)(2)(ii) and (iii) define the terms “related uncontrolled transaction,” “applicable uncontrolled price” and “appropriate gross services profit,” which are necessary to determine the arm's length price under proposed § 1.482-9(c)(2)(i). The related uncontrolled transaction is a transaction between a member of the controlled group and an uncontrolled taxpayer as to which a controlled taxpayer performs agent services or an intermediary function. The applicable uncontrolled price is the final sales price paid by the uncontrolled party in the related uncontrolled transaction. Proposed § 1.482-9(c)(2)(iii) provides that the appropriate gross services profit is calculated by multiplying the applicable
The proposed regulations incorporate the general comparability factors of existing § 1.482-1(d) in determining comparability under this method. Proposed § 1.482-9(c)(3)(ii)(A) emphasizes that comparability under the gross services margin method is particularly dependent on similarity of functions performed, risks borne, intangibles used (if any), and contractual terms, as all these factors may materially affect the gross services profit margin.
In determining comparability, the proposed regulations state that where the controlled taxpayer provides services similar to a sales or purchasing agent, this method is less dependent on close similarity in the underlying property transferred or the services provided to the uncontrolled party. However, substantial differences in the nature of the property transferred or the services provided to the uncontrolled party may indicate significant differences in the functions performed by the controlled taxpayer. Thus, it ordinarily would be expected that the controlled and uncontrolled transactions would involve agent or intermediary services involving the transfer of goods within the same product categories, or the provision of services of the same general type.
In addition, the proposed regulations provide that if the functions performed by a controlled taxpayer are similar to those performed by an uncontrolled taxpayer, then the gross profit margin earned by the uncontrolled taxpayer may be used as a comparable gross services profit margin regardless of the structure of the uncontrolled services transaction. For example, proposed § 1.482-9(c)(3)(ii)(D) provides that if a controlled taxpayer that functions as a sales or purchasing agent for transfers of tangible property is comparable to a distributor that takes title to goods and resells them (
Proposed § 1.482-9(c)(4) provides examples that illustrate various aspects of the application of the gross services margin method.
Proposed § 1.482-9(d) sets forth the cost of services plus method. This method evaluates whether the amount charged in a controlled services transaction is arm's length by reference to the gross services profit markup in comparable uncontrolled services transactions. The proposed regulations provide that this method is most reliably applied when the renderer in the controlled services transaction provides the same or similar services to both controlled and uncontrolled parties.
The cost of services plus method under proposed § 1.482-9(d) is similar to the cost plus method applicable to transfers of tangible property under existing § 1.482-3(d). The proposed regulations, however, incorporate certain modifications that are necessary because the manner in which the costs of providing services are presented for financial accounting purposes is less uniform than the manner in which costs of goods sold are presented for such purposes. The proposed regulations refer to the costs to be taken into account in evaluating controlled services transactions as “comparable transactional costs.” Proposed § 1.482-9(d)(2)(ii) defines comparable transactional costs to include all costs of providing the services that are taken into account as the basis for determining the gross services profit markup in comparable uncontrolled services transactions. The Treasury Department and the IRS intend this definition to be flexible to ensure that reasonably equivalent categories of costs will be used to determine gross services profit in particular cases. Consequently, the proposed regulations provide that in some circumstances comparable transactional costs may constitute a subset of the total services costs (as defined in proposed § 1.482-9(j)). Generally accepted accounting principles or income tax accounting rules (where income tax data for comparable transactions are available) may provide a useful starting point but will not be conclusive.
The proposed regulations incorporate the general comparability factors of existing § 1.482-1(d) and provide several specific rules to ensure appropriate results under this method. For example, proposed § 1.482-9(d)(3)(ii)(A) provides that in determining functional comparability between the tested transaction and uncontrolled transactions, it may be necessary to consider the charge determined under the cost of services plus method expressed in the form of a markup on total services costs of the controlled taxpayer and uncontrolled parties. The Treasury Department and the IRS believe that this confirming analysis will prevent inappropriate results where the uncontrolled transactions incorporate functional differences that are reflected in costs that are not included in comparable transactional costs. In addition, proposed § 1.482-9(d)(3)(ii)(B) states that reliability under this method will be reduced if a significant amount of the controlled taxpayer's comparable transactional costs consists of costs incurred in a tax accounting period other than the period under review. The Treasury Department and the IRS believe that in such cases application of this method may produce unreliable results.
The proposed regulations further provide that if, in applying this method, the controlled taxpayer and the comparable parties do not state their respective costs of providing the services on an equivalent basis, adjustments will be necessary to ensure reliability of the results. Proposed § 1.482-9(d)(3)(iii)(B) notes that where such adjustments are not possible, the reliability of the results determined under this method will be reduced.
Proposed § 1.482-9(d)(4) provides examples that illustrate various aspects of the application of the cost of services plus method.
The proposed regulations specify that the comparable profits method may be applied to controlled services. The comparable profits method evaluates whether the amount charged in a controlled services transaction is arm's length based on analysis of objective measures of profitability (profit level indicators) derived from financial information regarding uncontrolled taxpayers that engage in similar business activities under similar circumstances.
The proposed regulations provide that the guidance in existing § 1.482-5 generally is applicable to controlled services transactions. Proposed § 1.482-9(e) provides specific guidance that tailors the application of § 1.482-5 in cases in which the tested party under existing § 1.482-5(b)(2) is the renderer of the services under review. In all other cases, including cases in which the tested party is the recipient of controlled services, the provisions of existing § 1.482-5 apply without regard to § 1.482-9(e).
Proposed § 1.482-9(e) permits the application of the various profit level indicators provided in existing § 1.482-5(b)(4)(ii) to controlled services transactions. As noted in existing § 1.482-5(b)(4), whether the use of a particular profit level indicator is appropriate depends upon a number of factors, including the extent to which the profit level indicator is likely to produce a reliable measure of the income that the tested party would have earned had it dealt with controlled taxpayers at arm's length. In this regard, caution should be exercised in applying these profit level indicators to controlled services transactions. For example, application of the rate of return on capital employed profit level indicator may produce unreliable results because the reliability of this profit level indicator decreases as operating assets play a lesser role in generating operating profits for both the tested party and the uncontrolled comparable. In addition, reliability under this profit level indicator depends on the extent to which the composition of the tested party's assets is similar to that of the uncontrolled comparable.
With respect to financial ratios, the lack of uniformity regarding the presentation for financial accounting purposes of costs of providing services (as noted in the description of cost of services plus method above) and the limited availability of detailed information regarding the cost accounting practices of uncontrolled parties suggest that the reliability of the profit level indicators that depend on segmentation of such costs may be reduced. Existing § 1.482-5(c)(3) states that the reliability of results derived from the comparable profits method is affected by the quality of the data used to apply this method. Due to the lack of uniformity regarding the presentation for financial accounting purposes of costs of providing services, it may be difficult to determine, for example, whether costs included in costs of goods sold or operating expenses reported by uncontrolled taxpayers are in fact comparable to the corresponding costs incurred by the controlled taxpayer in the relevant business activity. Consequently, an arm's length charge determined by use of the ratio of gross profit to operating expenses as a profit level indicator may not be reliable.
Proposed § 1.482-9(e)(2)(ii) describes a new profit level indicator that may be more reliable in the context of controlled services transactions. The proposed regulations define this profit level indicator as the ratio of operating profits to total services costs (defined in proposed § 1.482-9(j)), or the markup on total costs (also referred to as the “net cost plus”). This new profit level indicator evaluates operating profits based on a markup on all costs related to the provision of services. This new profit level indicator is more likely to result in a cost base used to determine the controlled taxpayer's comparable operating profit that is comparable to the cost base used by uncontrolled parties to calculate their operating profits in similar business activities.
The proposed regulations state that the degree of consistency in accounting practices between the controlled services transaction and the uncontrolled transaction will affect the reliability of the results under this method. If appropriate adjustments to account for such differences are not possible, the reliability of the results determined under this method will be reduced.
Proposed § 1.482-9(e)(3) provides examples that illustrate various aspects of the application of the comparable profits methods to controlled services transactions.
Therefore, while the simplified method is intended to maintain reduced compliance and administrative burdens with respect to the pricing of low-margin services, it differs from the current rules regarding the pricing of low-margin services in significant respects. In particular, the simplified method is based on comparability principles, and the administrative benefits of the simplified method decrease as the margins attributable to the service at issue increase. Thus, the simplified method is more consistent with the arm's length standard and will limit significantly the potential for arbitrariness and controversy that makes the current rules problematic.
The Treasury Department and the IRS intend these quantitative rules, applied in conjunction with the other requirements for and conditions on the application of the simplified method, to provide objective, administrable guidance for determining whether controlled services may be priced under the simplified method rather than subject to a full transfer pricing analysis, including an analysis under the best method rule. Further, because the benefits of the simplified method decline as the margin attributable to the service increases, the pricing of a relatively high-margin controlled service under the simplified method converges with that under a full transfer pricing analysis. The objective of these quantitative rules is to provide a sufficient range with respect to the pricing of low-margin services to maintain appropriately reduced compliance and administrative burdens with respect to such services, while safeguarding against the inappropriate application of the simplified method to services that should be subject to a more robust arm's length analysis.
The simplified method does not grant authority to the Commissioner to make allocations that could not be made under the general transfer pricing rules. Thus, the qualitative rules of the simplified method apply in conjunction with, and not in lieu of, the interquartile range that may be available under certain other transfer pricing methods. For example, if the markup charged by the taxpayer on a controlled services transaction exceeds the arm's length markup by more than the applicable number of percentage points but is within the interquartile range of results under a best method analysis, the Commissioner may not make an allocation with respect to the underlying service. This interaction between the upper bound and the interquartile range further ensures that the benefits of the simplified method are focused on relatively low-margin services because the arm's length range can be expected to provide a wider tolerance band than the applicable number of percentage points as the markup on total services costs approaches 10 percent.
These limitations on the Commissioner's authority to make an allocation apply only if the markup charged in the controlled transaction is less than the arm's length markup. If instead the markup charged in the controlled transaction exceeds the arm's length markup, proposed § 1.482-9(f)(2)(v) provides that the limitation on the Commissioner under the simplified method does not apply to prevent the Commissioner from making an allocation.
Further, proposed § 1.482-9(f)(2)(v)(A) provides that the limitation on the Commissioner does not apply to prevent an allocation if the amount charged by the taxpayer is less than the “total services costs” in the controlled services transaction. The Treasury Department and the IRS believe that it is appropriate to subject controlled services that are priced at less than cost to a full transfer pricing analysis.
Finally, proposed § 1.482-9(f)(2)(v)(B) provides that the Commissioner's authority to determine the cost base is not limited if the taxpayer's method of determining, allocating and apportioning costs is not consistent with the methods used by similar uncontrolled taxpayers in similar circumstances. This authority, which is similar to the Commissioner's authority under existing § 1.482-2(b)(4) to make appropriate allocations of costs, constitutes an important safeguard on the reliability of the results determined under the simplified cost-based method. Consistent with the purpose of the simplified method—to provide certainty concerning the pricing of low-margin controlled services, and to reduce the number of disputes where taxpayers make a good faith effort to price qualifying services under this method—the Treasury Department and the IRS anticipate that the Commissioner will exercise this authority to correct an erroneous allocation only where that allocation has a significant impact on the amount of consideration in the controlled transaction.
In all cases in which the Commissioner's authority to make an allocation is not limited by the simplified method, allocations nevertheless must be consistent with the arm's length standard and otherwise appropriate under the generally applicable transfer pricing rules.
Proposed § 1.482-9(f)(5) provides examples that illustrate the application of the rules in proposed § 1.482-9(f)(2).
The Treasury Department and the IRS recognize that the written-contract requirement could impose an undue burden on smaller taxpayers or on taxpayers that choose to apply the simplified method to a limited amount of services. Accordingly, the proposed regulations provide that the written-contract requirement does not apply to taxpayers that are members of a U.S. controlled group with an annual gross income of less than $200 million, or to taxpayers that apply the simplified method to services whose aggregate costs are less than $10 million. In order to apply the simplified method in the absence of a written contract, however, the conduct of the parties to the services transaction must be consistent with an agreement that provides for current compensation of the services.
Proposed § 1.482-9(f)(4)(i) provides that controlled services that are similar to those provided to uncontrolled parties by either the renderer or the recipient are not eligible for the simplified cost-based method. This rule is similar to the rule of existing § 1.482-2(b)(7)(i), which has not led to compliance or administrative difficulties because taxpayers generally will have access to internal information concerning the comparable uncontrolled price of such services.
Proposed § 1.482-9(f)(4)(ii) provides that controlled services provided to a recipient that receives controlled services in significant amounts are not eligible to be evaluated under the simplified method. This rule is similar to the rule in existing § 1.482-2(b)(7)(iv) but has been simplified and narrowed in scope, and therefore should apply in fewer cases. The Treasury Department and the IRS believe that services routed through conduits or intermediaries should be subject to a full transfer pricing analysis.
Proposed § 1.482-9(f)(4)(iii) provides that controlled services that involve the use of valuable or unique intangibles are ineligible for the simplified method if such intangibles contribute significantly to the value of the services and the costs associated with such intangibles are not reflected in the costs relating to the rendering of the services. The Treasury Department and the IRS believe that such services are likely to have values substantially in excess of their cost and therefore categorically should be subject to a full transfer pricing analysis. The Treasury Department and the IRS anticipate that there will be significant overlap between this rule and the 10 percent rule in proposed § 1.482-9(f)(2)(iii); that is, the arm's length markup on total costs with respect to such services is likely to exceed 10 percent.
Proposed § 1.482-9(f)(4)(iv) provides that controlled services that are combined with other types of controlled transactions, such as a transfer of tangible or intangible property, are not eligible for the simplified method to the extent of those other transactions. The Treasury Department and the IRS intend the application of the simplified method to be limited to low-margin services transactions.
Proposed § 1.482-9(f)(4)(v) identifies several specific types of transactions that are not eligible for the simplified method. The first four types—manufacturing, production, extraction, and construction services—are identical to types of transactions excluded from eligibility for pricing at cost under existing § 1.482-2(b)(7)(ii)(A). Such services generally constitute core profit-making functions of an enterprise. The Treasury Department and the IRS therefore believe that such services should continue to be subject to a full transfer pricing analysis.
Also not eligible for the simplified method are reselling, distribution, or similar activities conducted under a commission or other arrangement, as well as financial transactions, including guarantees, and insurance or reinsurance. The Treasury Department and the IRS believe that it is not appropriate to apply the simplified method to such transactions because total costs generally constitute an inappropriate reference point for determining profitability with respect to such transactions.
Finally, research and development, experimentation, engineering or scientific services are excluded from the simplified method. The Treasury Department and the IRS believe that such services may in a significant number of cases involve valuable intangibles and therefore should be subject to a full transfer pricing analysis.
No inference is intended regarding either the arm's length markup on total services costs with respect to any of the excluded categories or types of transactions or the appropriate transfer pricing method for analyzing any particular transaction. In particular, no inference is intended that the arm's length markup for such transactions in a particular case will exceed 10 percent of total costs. Rather, these transactions are ineligible for the simplified cost-based method because the Treasury Department and the IRS have concluded that a full transfer pricing analysis is appropriate.
Existing § 1.6662-6(d)(2) provides that an amount is excluded from the calculation of a net section 482 transfer price adjustment for purposes of applying the section 6662 penalty if the taxpayer establishes that both the specified method and documentation requirements are met with respect to that amount. Existing § 1.6662-6(d)(2)(ii) provides that the specified method requirement is met if the taxpayer selects and applies a specified method in a reasonable manner. A taxpayer meets this burden only if, given the available data and the applicable pricing methods, the taxpayer reasonably concluded that the method (and its application of that method) provided the most reliable measure of an arm's length result under the principles of the best method rule. Existing § 1.6662-6(d)(2)(iii) provides rules with respect to the documentation requirement, and in particular contains a descriptive list of categories of documents that must be maintained and provided in order to meet the requirement. A taxpayer is not subject to the section 482 transactional penalty if it meets the requirements of § 1.6662-6(d).
A significant purpose of the simplified cost-based method is to maintain appropriately reduced compliance and administrative burdens with respect to low-margin services. Consistent with that purpose, proposed § 1.6662-6(d)(2)(ii)(B) provides that, for purposes of the specified method documentation requirement, a taxpayer's selection and application of the simplified method will be considered reasonable if the taxpayer reasonably concluded that the relevant transaction meets the conditions and requirements for application of that method, including the rule in proposed § 1.482-9(f)(2)(iii) that provides that the simplified method shall not apply if the arm's length markup exceeds 10 percent of total costs. In addition, the proposed regulations clarify the description of the documents that must be maintained and
The proposed regulations provide guidance regarding the application of the comparable profit split and the residual profit split methods to controlled services transactions. Generally, both profit split methods evaluate whether the allocation of the combined operating profit or loss attributable to one or more controlled transactions is arm's length by reference to the relative value of each controlled taxpayer's “contributions” to the combined operating profit or loss.
The proposed regulations provide that the guidance regarding the profit split methods in existing § 1.482-6, as amended by proposed § 1.482-6(c)(3)(i)(B) and other conforming changes, generally is applicable to controlled services transactions. Proposed § 1.482-9(g) also provides specific guidance on the application of § 1.482-6 in the context of controlled services transactions. In particular, proposed § 1.482-9(g)(1) provides that a profit split method may be appropriate when the controlled services transaction involves either high-value services or transactions that are highly integrated and cannot be reliably evaluated on a separate basis.
Proposed § 1.482-6(c)(3)(i)(B) amends the residual profit split method in existing § 1.482-6(c)(3). In general, existing § 1.482-6(c)(3) provides that the residual profit split method allocates the combined operating profit or loss from the relevant business activity between controlled taxpayers according to a two-step process. Operating income first is allocated to each controlled taxpayer to provide a market return for its routine contributions to the relevant business activity. The residual profit then is divided among the controlled taxpayers based upon the relative value of each taxpayer's contributions of intangible property. The proposed regulations amend existing § 1.482-6(c)(3)(i)(B) by providing that residual profits will be divided based on the relative value of each taxpayer's “nonroutine contributions,” which may include contributions of intangible property. Proposed § 1.482-6(c)(3)(i)(B) defines nonroutine contributions as contributions by controlled taxpayers that cannot be accounted for by reference to market returns, or that are so interrelated with other transactions that the contributions cannot be reliably evaluated on a separate basis. The proposed regulations thus make the residual profit split method more suitable in the context of services transactions and highly integrated transactions where data relating to comparable transactions are unavailable, whether or not these transactions involve the technical transfer or use of intangible property.
Proposed § 1.482-9(g)(2) provides examples that illustrate the application of the residual profit split method to controlled services transactions.
Proposed § 1.482-9(h) provides that in addition to the specified methods in § 1.482-9(a), an unspecified method may be used to determine an arm's length charge if such a method will provide the most reliable measure of an arm's length result under the best method rule. Proposed § 1.482-9(h) emphasizes that an unspecified method should take into account that under the arm's length standard uncontrolled taxpayers must compare the terms of a transaction to the realistic alternatives to entering into that transaction. Therefore, an unspecified method should provide information on the prices or profits that the controlled taxpayer might have realized by choosing a realistic alternative to the controlled transaction.
9. Contingent-Payment Contractual Terms—§ 1.482-9(i)
Proposed § 1.482-9(i) provides guidance on the treatment of contingent-payment arrangements. The Treasury Department and the IRS recognize that controlled taxpayers may allocate the risks associated with rendering services in a variety of ways, including by specifying that compensation for the services will be paid only in the event that the services yield certain results. For example, taxpayers may enter into a contingent-payment arrangement that provides that the renderer of research and development services will receive compensation only if the research and development results in sales of a commercially viable product. Proposed § 1.482-9(i) provides specific guidance concerning the evaluation of such contractual arrangements in the context of controlled services.
Proposed § 1.482-9(i)(1) provides that the arm's length charge in a controlled services transaction is determined taking into account any contingent-payment terms. Proposed § 1.482-9(i)(2) provides that a contingent-payment arrangement is recognized if the arrangement is set forth in a written contract entered into prior to the start of the activity; the contract explicitly states that payment is contingent upon the happening of a future benefit for the recipient directly related to the outcome of the controlled services transaction; and the contract provides for payment on a basis that reflects the recipient's benefit from the services rendered and the risks borne by the renderer. If these three conditions are satisfied, the arm's length result for the controlled services transaction ordinarily would not require a payment to the renderer if the contingency does not occur. If, on the other hand, the contingency occurs, an arm's length result would require payment reflecting the recipient's benefit and the risks borne by the service renderer.
The proposed regulations incorporate the principles of existing § 1.482-1(d)(3) and provide that a contingent-payment arrangement must be reasonable and consistent with the economic substance of the parties' conduct, based on all facts and circumstances. Existing § 1.482-1(d)(3)(ii)(B) provides that in evaluating reasonableness and economic substance, all facts and circumstances are relevant, but the actual conduct and the respective legal rights of the parties will be given greatest weight in the analysis. Proposed § 1.482-9(i)(3) confirms explicitly that the Commissioner's authority under existing § 1.482-1(d)(3)(ii)(B) to impute contractual terms in appropriate cases extends to imputation of contingent-payment terms where such terms are consistent with the economic substance of the controlled services transaction.
Proposed § 1.482-9(i)(4) provides that the arm's length charge in a contingent-payment arrangement is evaluated in accordance with section 1.482-9 and other applicable rules under section 482. In the case of an arrangement for the manufacture, construction, or development of tangible or intangible property owned by the recipient, the arm's length charge determined under the rules of §§ 1.482-3 and 1.482-4 for the transfer of similar property may be considered.
Examples are provided in proposed § 1.482-9(i)(5) and under existing § 1.482-1(d)(3) to illustrate the application of these rules.
Proposed § 1.482-9(j) defines the term “total services costs,” which is used to determine the arm's length charge under the simplified cost-based method, the comparable profits method in cases where the ratio of operating profits to total services costs is used as the profit level indicator, and in the cost of services plus method in cases where an analysis of the result expressed as ratio
Existing § 1.482-2(b)(3) through (6) provide that costs may be allocated and apportioned to a services transaction under “a method of allocation and apportionment which is reasonable and in keeping with sound accounting practices.” Proposed § 1.482-9(k) retains the flexible approach of the current rule by allowing any reasonable method of allocation and apportionment of costs where such allocation and apportionment is relevant to determining an arm's length charge for services. In establishing the appropriate method, the proposed regulations state that consideration should be given to all bases and factors, including the general practices used by taxpayers to apportion costs for other purposes. The proposed regulations provide, however, that such general practices need not be accorded conclusive weight by the Commissioner.
Proposed § 1.482-9(k)(3) provides examples that illustrate the rules regarding the allocation and apportionment of costs.
Proposed § 1.482-9(l) provides guidance regarding the threshold question of whether an activity by one member of a controlled group constitutes a controlled services transaction, the arm's length charge for which must be determined under proposed § 1.482-9(l). This guidance updates and substantially modifies the guidance in existing § 1.482-2(b)(3), and brings such guidance more into line with international standards in this area.
Proposed § 1.482-9(l)(3)(i) further provides that an activity is generally considered to confer a benefit if an uncontrolled taxpayer in circumstances comparable to those of the recipient would be willing to pay an uncontrolled party to perform the same or similar activity, or if such uncontrolled taxpayer would be willing to perform for itself the same or similar activity. This proposed rule would replace the rule of existing § 1.482-2(b)(2)(i), which provides that the relevant determination is whether an uncontrolled taxpayer in circumstances similar to the renderer would charge for the service. The Treasury Department and the IRS believe that the approach of the proposed regulations is more consistent with the arm's length standard and is more in line with international standards in this area. In addition, this approach should be substantially easier to administer than the standard under existing § 1.482-2(b)(2)(i), which in some cases has been interpreted as requiring a difficult analysis of the subjective intent of the renderer. While the focus of this aspect of the proposed regulations is on the recipient, the determination of the arm's length charge may require a focus on the recipient, the renderer, or both, depending on the applicable method.
The proposed regulations and the examples set forth under § 1.482-9(l)(4) do not adopt a so-called “general benefit” approach, under which certain activities in a corporate group were presumed to generate a benefit to the controlled group as a whole. This general benefit approach in some cases has been used to justify a charge to a group member for centralized activities performed by a corporate parent or service center, whether or not that particular member actually receives a benefit from those activities. The Treasury Department and the IRS believe that the general benefit concept is inconsistent with the arm's length standard. In the controlled group context, the benefit analysis appropriately focuses on whether one or more controlled parties receive an identifiable benefit from an activity performed by another member of the group. Although the proposed regulations do not adopt the general benefit approach, in certain cases the allocation or sharing among group members of expenses or charges relating to corporate headquarters-level activities or other centralized service activities may be consistent with the rules of the proposed regulations.
Proposed § 1.482-9(l)(3)(i) clarifies that a benefit is received by the owner of an intangible when another controlled taxpayer performs an activity that contributes to the development or enhancement of the value of that intangible. This provision is consistent with proposed § 1.482-4(f)(3) and (4).
Under proposed § 1.482-9(l)(3)(ii), an activity produces an indirect or remote benefit only if that activity is one for which an uncontrolled taxpayer
Under proposed § 1.482-9(l)(3)(iii), an activity that is duplicative of an activity performed by another controlled taxpayer generally will not be considered to provide a benefit unless it yields an identifiable, additional benefit to one or more members of the controlled group.
Proposed § 1.482-9(l)(3)(iv) provides that an activity whose primary benefit is to protect the renderer's capital investment in one or more members of the controlled group, or an activity relating primarily to compliance by the renderer with reporting, legal, or regulatory requirements applicable specifically to the renderer, will not be considered to provide a benefit to another member of the controlled group. The proposed regulations further provide that activities in the nature of day-to-day management generally do not relate to the protection of the renderer's capital investment, and that activities performed in connection with a corporate reorganization (including payments to unrelated service providers) may be considered to provide a benefit to one or more controlled taxpayers.
In the view of the Treasury Department and the IRS, the relatively narrow definition of shareholder activities in the proposed regulations reflects the arm's length standard and is consistent with particular international standards in this area. The Treasury Department and the IRS recognize that there are a wide range of activities and factual scenarios within a multinational group to which this guidance will apply. For example, if an activity is performed in order to comply with legal requirements applicable to shareholders, or in order to preserve or safeguard the controlled taxpayer's equity investment in a subsidiary, such an activity should be properly viewed as a shareholder activity. It may be appropriate to conclude that other activities also provide no benefit to other members of the controlled group, but such conclusion would be based on a detailed analysis of the facts and circumstances.
Proposed § 1.482-9(m) provides rules to coordinate the rules applicable to services with rules applicable to other categories of transactions under section 482. Generally, the section 482 regulations set forth specific transfer pricing methods for evaluating the results of controlled transactions under the arm's length standard. Certain methods apply only to specific types of transactions, while other methods apply more generally. Selection of a method for a particular type of transaction is subject to the best method rule of existing § 1.482-1(c)(1), which states that the method selected should provide the most reliable measure of an arm's length result. The proposed regulations include coordination provisions that provide guidance on selection of an appropriate transfer pricing method when a controlled services transaction is combined with or has elements of another type of transaction. The proposed regulations provide examples that illustrate the application of these rules.
The proposed regulations would replace the provisions of § 1.482-4(f)(3), relating to the allocation of income from intangibles, with proposed § 1.482-4(f)(3) and (4).
Proposed § 1.482-4(f)(3)(i)(A) provides guidance for determining the owner of an intangible. In general, the owner is the taxpayer identified as the owner of an intangible under the intellectual property laws of the relevant jurisdiction, or the taxpayer that holds rights constituting an intangible in accordance with contractual terms or other legal provision. For example, in the case of a typical license of an intangible between controlled parties, the proposed regulations treat the licensee as the owner of contractual rights pursuant to the license, and the licensor as the owner of the intangible subject to the license. The identification of a single owner for each discrete intangible replaces the provision in the existing regulations that under certain circumstances could be read to provide for multiple owners of an intangible.
Proposed § 1.482-4(f)(3)(i)(B) generally excludes from the rules of proposed § 1.482-4(f)(3)(i)(A) intangibles subject to the cost sharing provisions of § 1.482-7. The Treasury Department and the IRS are reviewing the current regulatory guidance related to qualified cost sharing arrangements, and intend to issue proposed regulations in the near term.
Proposed § 1.482-4(f)(3) does not include the rules in the existing regulations for allocations with respect to assistance provided to the owner of intangible property. These rules, in modified form, are provided in proposed § 1.482-4(f)(4).
Proposed § 1.482-4(f)(4)(i) provides that the arm's length consideration for a contribution by one controlled taxpayer to develop or enhance an intangible owned by another controlled taxpayer must be determined under the applicable rules of section 482.
The section 482 regulations generally give effect to the contractual terms specified for controlled transactions. Consistent with this principle, proposed § 1.482-4(f)(4)(i) also provides rules for situations where controlled taxpayers “embed” compensation for a contribution in the contractual terms of a transaction involving an intangible. For instance, under a typical intangible license between controlled parties the licensee may render marketing services that are anticipated to enhance the intangible owned by the licensor. The licensor may compensate such services through a separately stated fee, or such compensation may be embedded within the royalty paid by the licensee (
Proposed § 1.482-4(f)(4)(i) provides that ordinarily no separate allocation is appropriate where compensation for a contribution is embedded within the terms of a related controlled transaction. The contribution, however, must be taken into account in evaluating the comparability of the controlled transaction to any uncontrolled comparables and in determining the arm's length consideration for the controlled transaction that includes the embedded contribution. This rule is intended to reach a result that is implicit under the existing regulations.
In some cases, this rule may operate in conjunction with § 1.482-3(f), which deals with transfers of tangible property that contains an embedded intangible. For example, in a typical distribution arrangement for the resale of trademarked goods, the distributor may perform marketing services that are not separately compensated. In such a case, ordinarily no separate allocation would be appropriate with respect to either the embedded trademark or the embedded marketing services. These embedded elements, however, must be taken into account in evaluating the comparability of the controlled transfer to any uncontrolled comparables and in determining the arm's length consideration for the intercompany sale of the trademarked goods.
The Treasury Department and the IRS intend that this rule pertaining to contributions to develop or enhance an intangible will provide a clearer framework for analysis than existing § 1.482-4(f)(3), particularly where controlled taxpayers document the relevant transactions in advance and act in accordance with the documentation. In this regard, the proposed regulations are intended to encourage controlled taxpayers to document such transactions contemporaneously and consistently over time.
Examples in proposed § 1.482-4(f)(4)(ii) illustrate the application of proposed § 1.482-4(f)(4) to a range of transactions involving contributions to develop or enhance an intangible.
The proposed regulations recognize that controlled taxpayers have considerable flexibility to specify the contractual terms regarding contributions to develop or enhance an intangible. The Commissioner generally will give effect to these contractual terms for Federal income tax purposes, provided that they are consistent with the economic substance of the parties' conduct. On the other hand, if the controlled taxpayer fails to specify contractual terms for a transaction, or if the stated terms do not accord with the economic substance of the underlying activities, the Commissioner may impute contractual terms that are consistent with the economic substance of the underlying transactions.
Proposed
In view of the proposed changes described above, conforming changes to §§ 1.482-0 through -2, 1.6038A-3, 1.6662-6(g), and 31.3121(s)-1 are
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f), this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic or written comments (a signed original and eight (8) copies) that are submitted timely to the IRS. The Treasury Department and the IRS specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying.
A public hearing has been scheduled for January 14, 2004, at 10 a.m., in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by December 23, 2003. A period of 10 minutes will be allotted to each person for making comments.
An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal authors of these proposed regulations are J. Peter Luedtke and Helen Hong-George of the Office of Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Penalties, Pensions, Railroad retirement, Reporting and recordkeeping requirements, Social security, Unemployment compensation.
Accordingly, 26 CFR parts 1 and 31 are proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.482-9 also issued under 26 U.S.C. 482. * * *
1. Revising the section heading.
2. Removing the entries for § 1.482-2(b) and adding a new entry in its place.
3. Revising the entries for § 1.482-4(f)(3), (f)(4) and (f)(5) and adding new entries for § 1.482-4(f)(6).
4. Adding new entries for §§ 1.482-6(c)(3)(i)(B)(
The additions and revisions read as follows:
(b) Rendering of services.
(f) * * *
(3) Ownership of intangible property.
(i) Identification of owner.
(A) In general.
(B) Cost sharing arrangements.
(ii) Examples.
(4) Contribution to the value of an intangible owned by another.
(i) In general.
(ii) Examples.
(5) Consideration not artificially limited.
(6) Lump-sum payments.
(i) In general.
(ii) Exceptions.
(iii) Example.
(c) * * *
(3) * * *
(i) In general. * * *
(B) Allocate residual profit.
(
(
(a) In general.
(b) Comparable uncontrolled services price method.
(1) In general.
(2) Comparability and reliability considerations.
(i) In general.
(ii) Comparability.
(A) In general.
(B) Adjustments for differences between controlled and uncontrolled transactions.
(iii) Data and assumptions.
(3) Arm's length range.
(4) Examples.
(5) Indirect evidence of the price of a comparable uncontrolled services transaction.
(i) In general.
(ii) Example.
(c) Gross services margin method.
(1) In general.
(2) Determination of arm's length price.
(i) In general.
(ii) Related uncontrolled transaction.
(iii) Applicable uncontrolled price.
(iv) Appropriate gross services profit.
(v) Arm's length range.
(3) Comparability and reliability considerations.
(i) In general.
(ii) Comparability.
(A) Functional comparability.
(B) Other comparability factors.
(C) Adjustments for differences between controlled and uncontrolled transactions.
(D) Buy-sell distributor.
(iii) Data and assumptions.
(A) In general.
(B) Consistency in accounting.
(4) Examples.
(d) Cost of services plus method.
(1) In general.
(2) Determination of arm's length price.
(i) In general.
(ii) Appropriate gross services profit.
(iii) Comparable transactional costs.
(iv) Arm's length range.
(3) Comparability and reliability considerations.
(i) In general.
(ii) Comparability.
(A) Functional comparability.
(B) Other comparability factors.
(C) Adjustments for differences between the controlled and uncontrolled transactions.
(iii) Data and assumptions.
(A) In general.
(B) Consistency in accounting.
(4) Examples.
(e) Comparable profits method.
(1) In general.
(2) Determination of arm's length result.
(i) Tested party.
(ii) Profit level indicators.
(iii) Comparability and reliability considerations—Data and assumptions—Consistency in accounting.
(3) Examples.
(f) Simplified cost-based method for certain services.
(1) Evaluation of arm's length charge.
(i) In general.
(ii) Coordination with best method rule.
(2) Limitation on allocations by Commissioner.
(i) In general.
(ii) Applicable number of percentage points.
(iii) Method inapplicable to high-margin transactions.
(iv) Measurement of limitations on allocations.
(v) Scope of limitation on allocations by the Commissioner.
(A) Loss transactions and transactions priced in excess of arm's length.
(B) Allocation and apportionment of costs.
(3) Conditions on application of simplified cost-based method.
(i) Adequate books and records.
(ii) Written contract.
(A) In general.
(B) De minimis exception.
(4) Transactions not eligible for simplified cost-based method.
(i) Services similar to services provided by renderer or recipient to uncontrolled parties.
(ii) Services rendered to a recipient that receives services from controlled taxpayers in significant amounts.
(iii) Services involving the use of intangible property.
(iv) Non-services transactions included in integrated transactions.
(v) Certain transactions.
(5) Examples.
(g) Profit split method.
(1) In general.
(2) Examples.
(h) Unspecified methods.
(i) Contingent-payment contractual terms for services.
(1) Economic substance of contingent payment contractual terms recognized.
(2) Contingent-payment arrangement.
(i) Written contract.
(ii) Specified contingency.
(iii) Basis for payment.
(3) Commissioner's authority to impute contingent-payment terms.
(4) Evaluation of arm's length charge.
(5) Examples.
(j) Total services costs.
(k) Allocation of costs.
(1) In general.
(2) Appropriate method of allocation and apportionment.
(i) Reasonable method standard.
(ii) Use of general practices.
(3) Examples.
(l) Controlled services transaction.
(1) In general.
(2) Activity.
(3) Benefit.
(i) In general.
(ii) Indirect or remote benefit.
(iii) Duplicative activities.
(iv) Shareholder activities.
(v) Passive association.
(4) Examples.
(m) Coordination with transfer pricing rules for other transactions.
(1) Services transactions that include other types of transactions.
(2) Services transactions that effect a transfer of intangible property.
(3) Services subject to a qualified cost sharing arrangement.
(4) Other types of transactions that include controlled services transactions.
(5) Global dealing operations.
(6) Examples.
(n) Effective date.
1. Revising paragraphs (a)(1), (b)(2)(i), (d)(3)(ii)(C)
2. Adding paragraph (d)(3)(ii)(C),
3. Adding a sentence at the end of paragraph (d)(3)(v).
The additions and revisions read as follows:
(a)
(b) * * *
(2)
(d) * * *
(3) * * *
(ii) * * *
(C) * * *
(ii) By Year 7, the wristwatches with the YY trademark generate a premium return in the U.S. market, as compared to wristwatches marketed by the independent distributors. In
(iii) In determining whether an allocation of income is appropriate in Year 7, the Commissioner may consider the economic substance of the arrangements between USSub and FP, and the parties' course of conduct throughout their relationship. Based on this analysis, the Commissioner determines that it is unlikely that,
(ii) In Years 1 through 6, USSub performs incremental marketing activities with respect to the AA trademark athletic gear, in addition to the activities required under the terms of the license agreement. FP does not directly or indirectly compensate USSub for performing these incremental activities during Years 1 through 6. By Year 7, AA trademark athletic gear generates a premium return in the United States, as compared to similar athletic gear marketed by independent licensees. In Year 7, USSub and FP enter into a separate services agreement under which FP agrees to compensate USSub on a cost basis for the incremental marketing activities that USSub performed during Years 1 through 6, and to compensate USSub on a cost basis for any incremental marketing activities it may perform in Year 7 and thereafter. In addition, the parties revise the license agreement executed in Year 1, and increase the royalty to a level that attributes to FP substantially all the premium return from sales of the AA trademark athletic gear in the United States.
(iii) In determining whether an allocation of income is appropriate in Year 7, the Commissioner may consider the economic substance of the arrangements between USSub and FP and the parties' course of conduct throughout their relationship. Based on this analysis, the Commissioner determines that it is unlikely that,
(ii) Company Y is acquired in Year 4 by the controlled group that includes Company X. Once Company Y is acquired, patent rights with respect to the compound in several jurisdictions are registered by Company Y, making Company Y the legal owner of such patents.
(iii) In determining whether an allocation is appropriate in Year 4, the Commissioner may consider the economic substance of the arrangements between Company X and Company Y, and the parties' course of conduct throughout their relationship. Based on this analysis, the Commissioner determines that it is unlikely that,
(v) * * * See § 1.482-9(m).
(f) * * *
(2) * * *
(iii) * * *
(B)
(g) * * *
(4)
(iii)
P, a U.S. corporation, renders construction services to S, its foreign subsidiary in Country Y, in connection with the construction of S's factory. An arm's length charge for such services determined under § 1.482-9 would be $100,000. * * *
(i)
(b)
1. Redesignating paragraphs (f)(4) and (f)(5) as paragraphs (f)(5) and (f)(6), respectively.
2. Revising paragraph (f)(3) and adding new paragraph (f)(4). The revisions and additions read as follows.
(f) * * *
(3)
(B)
(ii)
FP, a foreign corporation, is the registered holder of the AA trademark in the United States. FP licenses to a U.S. subsidiary, USSub, the exclusive rights to manufacture and market products in the United States under the AA trademark. FP is the owner of the trademark pursuant to intellectual property law. USSub is the owner of the license pursuant to the contractual terms of the license, but is not the owner of the trademark.
The facts are the same as in
(4)
(ii)
A, a member of a controlled group, allows B, another member of the
(i)
(ii) The consideration for FP's and USSub's marketing activities, as well as the consideration for the license to sell YY trademarked merchandise, are embedded in the transfer price paid for the wristwatches. Accordingly, pursuant to paragraph (f)(4)(i) of this section, ordinarily no separate allocation would be appropriate with respect to these embedded contributions.
(iii) Whether an allocation is warranted with respect to the transfer price for the wristwatches is determined under § 1.482-1 and §§ 1.482-3 through 1.482-6. The comparability analysis would include consideration of all relevant factors, including the nature of the intangible embedded in the wristwatches and the nature of the marketing activities required under the contract. This analysis would also take into account that the compensation for the activities performed by USSub and FP, as well as the consideration for USSub's use of the YY trademark, is embedded in the transfer price for the wristwatches, rather than provided for in separate agreements.
(i)
(ii) The consideration for FP's and USSub's respective marketing activities is embedded in the contractual terms of the license for the AA trademark. Accordingly, pursuant to paragraph (f)(4)(i) of this section, ordinarily no separate allocation would be appropriate with respect to the embedded contributions in Year 1. See § 1.482-9(m)(4).
(iii) Whether an allocation is warranted with respect to the royalty under the license agreement would be analyzed under § 1.482-1 and this section through § 1.482-6. The comparability analysis would include consideration of all relevant factors, such as the term and geographical exclusivity of the license, the nature of the intangibles subject to the license, and the nature of the marketing activities required to be undertaken pursuant to the license. Pursuant to paragraph (f)(4)(i) of this section, the analysis would also take into account the fact that the compensation for the marketing services is embedded in the royalty for the AA trademark, rather than provided for in a separate services agreement. If it is not possible to identify uncontrolled transactions that incorporate a similar range of interrelated elements and there are nonroutine contributions by each of FP and USSub, then the most reliable measure of the arm's length royalty for the AA trademark may be the residual profit split method. The analysis would take into account routine and nonroutine contributions by USSub and FP in order to determine an appropriate allocation of the combined operating profits from the sale of the AA trademarked merchandise and related activities.
(i)
(ii) To the extent that it was reasonable to anticipate that USSub's incremental marketing activities would increase the value only of USSub's intangible (that is, USSub's license to use the AA trademark for a specified term), and not the value of the AA trademark owned by FP, USSub's incremental activities do not constitute a contribution for which an allocation is warranted under paragraph (f)(4)(i) of this section.
(i)
(ii) Whether an allocation is warranted with respect to USSub's incremental marketing activities covered by the separate services agreement would be evaluated under §§ 1.482-1 and 1.482-9, including a comparison of the compensation provided for the services with the results obtained under a method pursuant to § 1.482-9, selected and applied in accordance with the best method rule of § 1.482-1(c).
(iii) Whether an allocation is warranted with respect to the royalty under the license agreement is determined under § 1.482-1 and this section through § 1.482-6. The comparability analysis would include consideration of all relevant factors, such as the term and geographical exclusivity of the license, the nature of the intangibles subject to the license, and the nature of the marketing activities required to be undertaken pursuant to the license. The comparability analysis would take into account that the compensation for the incremental activities by USSub is provided for in the separate services agreement, rather than embedded in the royalty for the AA trademark. If it is not possible to identify uncontrolled transactions that incorporate a similar range of interrelated elements and there are nonroutine contributions by each of FP and USSub, then the most reliable measure of the arm's length royalty for the AA trademark may be the residual profit split method. The analysis would take into account routine and nonroutine contributions by USSub and FP in order to determine an appropriate allocation of the combined operating profits from the sale of the AA trademarked merchandise and related activities.
(i)
(ii) Whether an allocation is warranted with respect to the incremental marketing activities performed by FP under the separate services agreement would be evaluated under § 1.482-9. Under the circumstances, it is reasonable to anticipate that FP's activities would increase the value of USSub's license as well as the value of FP's trademark. Accordingly, the incremental activities by FP may constitute in part a controlled services transaction for which USSub must compensate FP. The analysis of whether an
(iii) Whether an allocation is appropriate with respect to the royalty under the license agreement would be evaluated under § 1.482-1 and this section through § 1.482-6. The comparability analysis would include consideration of all relevant factors, such as the term and geographical exclusivity of USSub's license, the nature of the intangibles subject to the license, and the marketing activities required to be undertaken by both FP and USSub pursuant to the license. This comparability analysis would take into account that the compensation for the incremental activities performed by FP was provided for in the separate services agreement, rather than embedded in the royalty for the AA trademark. If it is not possible to identify uncontrolled transactions that incorporate a similar range of interrelated elements and there are nonroutine contributions by each of FP and USSub, then the most reliable measure of the arm's length royalty for the AA trademark may be the residual profit split method. The analysis would take into account routine and nonroutine contributions by USSub and FP in order to determine an appropriate allocation of the combined operating profits from the sale of the AA trademarked merchandise and related activities.
1. Revising the third sentence in paragraph (c)(2)(ii)(B)(
2. Revising paragraph (c)(3)(i)(B).
The revisions read as follows:
(c) * * *
(2) * * *
(ii) * * *
(B) * * * (
(D)
(3) * * * (i) * * *
(A) * * * Market returns for the routine contributions should be determined by reference to the returns achieved by uncontrolled taxpayers engaged in similar activities, consistent with the methods described in §§ 1.482-3, 1.482-4, 1.482-5 and 1.482-9.
(B)
(
(D)
(a)
(1) The comparable uncontrolled services price method, described in paragraph (b) of this section;
(2) The gross services margin method, described in paragraph (c) of this section;
(3) The cost of services plus method, described in paragraph (d) of this section;
(4) The comparable profits method, described in § 1.482-5 and in paragraph (e) of this section;
(5) The simplified cost-based method for certain services, described in paragraph (f) of this section;
(6) The profit split method, described in § 1.482-6 and in paragraph (g) of this section; and
(7) Unspecified methods, described in paragraph (h) of this section.
(b)
(2)
(ii)
(B)
(
(
(
(
(
(
(
(
(iii)
(3)
(4)
(ii) In evaluating the appropriate measure of an arm's length price for the loading services that Company A renders to Company B, the $60 per cargo container charge is considered evidence of a comparable uncontrolled services price. See paragraph (b)(2)(ii)(A) of this section.
(ii) In performing its research and development services function, Company A uses proprietary software that it developed internally. Company A uses the software to evaluate certain genetically engineered compounds developed by Company B. Company A owns the copyright on this software and does not license it to uncontrolled parties.
(iii) No uncontrolled parties can be identified that perform services identical or with a high degree of similarity to those performed by Company A. Because there are material differences for which reliable adjustments cannot be made, the comparable uncontrolled services price method is unlikely to provide a reliable measure of the arm's length price. See paragraph (b)(2)(ii)(A) of this section.
(ii) Company A and its subsidiaries sometimes undertake engagements directly for clients, and sometimes work as subcontractors to unrelated parties on more extensive supply-chain consulting engagements for clients. In undertaking the latter engagements with third party consultants, Company A typically prices its services based on consulting hours worked multiplied by a rate determined for each category of employee. The company also charges, at no markup, for out-of-pocket expenses such as travel, lodging, and data acquisition charges. The Company has established the following schedule of hourly rates:
(iii) Thus, for example, a project involving 100 hours of the time of project managers and 400 hours of technical staff time would result in the following project fees (without regard to any out-of-pocket expenses): ([100 hrs. × $400/hr.] + [400 hrs. × $300/hr.]) = $40,000 + $120,000 = $160,000.
(iv) Company B, a Country X subsidiary of Company A, contracts to perform consulting services for a Country X client in the banking industry. In undertaking this engagement, Company B uses its own consultants and also uses Company A project managers and technical staff that specialize in the banking industry for 75 hours and 380 hours, respectively. In determining an arm's length charge, the price that Company A charges for consulting services as a subcontractor in comparable uncontrolled transactions will be considered evidence of a comparable uncontrolled services price. Thus, in this case, a payment of $144,000, (or [75 hrs. × $400/hr.] + [380 hrs. × $300/hr.] = $30,000 + $114,000) may be used as a measure of the arm's length price for the work performed by Company A project mangers and technical staff. In addition, if the comparable uncontrolled services price method is used, then, consistent with the practices employed by the comparables with respect to similar types of expenses, Company B must reimburse Company A for appropriate out-of-pocket expenses. See paragraph (b)(2)(ii)(A) of this section.
(ii) The engagement, once undertaken, requires 20% more hours by each of Companies A and B than originally estimated. Nevertheless, the unrelated client pays the fixed fee that was agreed upon at the start of the engagement. Company B pays Company A $144,000, in accordance with the fixed fee arrangement.
(iii) Company A often enters into similar fixed fee engagements with clients. In addition, Company A's records for similar engagements show that when it experiences cost overruns, it does not collect additional fees from the client for the difference between projected and actual hours. Accordingly, in evaluating whether the fees paid by Company B to Company A are arm's length, it is determined that no adjustments to the intercompany service charge are warranted. See § 1.482-1(d)(3)(ii) and paragraph (b)(2)(ii)(A) of this section.
(5)
(A) The data are widely and routinely used in the ordinary course of business in the particular industry or market segment for purposes of determining prices actually charged in comparable uncontrolled services transactions;
(B) The data are used to set prices in the controlled services transaction in the same way they are used to set prices in uncontrolled services transactions of the controlled taxpayer, or in the same way they are used by uncontrolled taxpayers to set prices in uncontrolled services transactions; and
(C) The amount charged in the controlled services transaction may be reliably adjusted to reflect differences in quality of the services, contractual terms, market conditions, risks borne (including contingent-payment terms), duration or quantitative measure of services rendered, and other factors that may affect the price to which uncontrolled taxpayers would agree.
(ii)
(ii) During the taxable year subject to audit, Company B performed risk analysis for uncontrolled parties as well as for Company A. Because prices charged to uncontrolled customers reflected the composition of each customer's portfolio together with other factors, the prices charged in Company B's uncontrolled transactions do not provide a reliable basis for determining the comparable uncontrolled services price for the similar services rendered to Company A. However, in evaluating an arm's length price for the studies performed by Company B for Company A, Company B's proprietary computer program may be considered as indirect evidence of the comparable uncontrolled services price that would be charged to perform the services for Company A. The reliability of the results obtained by application of this internal computer program as a measure of an arm's length price for the services will be increased to the extent that Company A used the internal computer program to generate actual transaction prices for risk-analysis studies performed for uncontrolled parties during the same taxable year under audit; Company A used data that are widely and routinely used in the ordinary course of business in the insurance industry to determine the price charged; and Company A reliably adjusted the price charged in the controlled services transaction to reflect differences that may affect the price to which uncontrolled taxpayers would agree.
(c)
(2)
(ii)
(iii)
(iv)
(v)
(3)
(ii)
(B)
(C)
(
(
(
(
(D)
(iii)
(B)
(4)
(ii) In undertaking engagements with clients, Company A in some cases pays a commission of 3% of its total fees to unrelated parties that assist Company A in obtaining consulting engagements. Typically, such fees are paid to non-computer consulting firms that provide strategic management services for their clients. When Company A obtains a consulting engagement with a client of a non-computer consulting firm, Company A does not subcontract with the other consulting firm, nor does the other consulting firm play any role in Company A's consulting engagement.
(iii) Company B, a Country X subsidiary of Company A, assists Company A in obtaining an engagement to perform computer consulting services for a Company B banking industry client in Country X. Although Company B has an established relationship with its Country X client and was instrumental in arranging for Company A's engagement with the client, Company A's particular expertise was the primary consideration in the motivating the client to engage Company A. Based on the relative contributions of Companies A and B in obtaining and undertaking the engagement, Company B's role was primarily to facilitate the consulting engagement between Company A and the Country X client. Information regarding the commissions paid by Company A to unrelated parties for providing similar services to facilitate Company A's consulting engagements is sufficiently complete to conclude that it is likely that all material differences between these uncontrolled transactions and the controlled transaction between Company B and Company A have been identified and that appropriate adjustments have been made for any such differences. If the comparable gross services margin earned by unrelated parties in providing such agent services is 3% of total fees charged in the similarly related transactions involved in the uncontrolled comparables, then the appropriate gross services profit that Company B may earn and the arm's length price that it may charge Company A for its agent services is equal to this comparable gross services margin (3%), multiplied by the applicable uncontrolled price charged by Company A in its related uncontrolled consulting engagement with Company B's client.
(ii) Analysis of the relative contributions of Companies A and B in obtaining and undertaking the consulting contract indicates that Company B functioned primarily as an intermediary-contracting party, and the gross services margin method is the most reliable method for determining the amount that Company B may retain as compensation for its intermediary function with respect to Company A's consulting services. In this case, therefore, because Company B entered into the related uncontrolled transaction to provide services, Company B receives the applicable uncontrolled price that is paid by the Country X client for the consulting services. Company A technically performs services for Company B when it performs, on behalf of Company B, the consulting services Company B contracted to provide to the Country X client. The arm's length amount that Company A may charge Company B for performing the consulting services on Company B's behalf is equal to the applicable uncontrolled price received by Company B in the related uncontrolled transaction, less Company B's appropriate gross services profit, which is the amount that Company B may retain as compensation for performing the intermediary function.
(iii) Reliable data concerning the commissions that Company A paid to uncontrolled parties for assisting it in obtaining engagements to provide consulting services similar to those it has provided on behalf of Company B provide useful information in applying the gross services margin method. However, consideration should be given to whether the third party commission data may need to be adjusted to account for any additional risk that Company B may have assumed as a result of its function as an intermediary-contracting party, compared with the risk it would have assumed if it had provided agent services to assist Company A in entering into an engagement to provide its consulting service directly. In this case, the information regarding the commissions paid by Company A to unrelated parties for providing agent services to facilitate its performance of consulting services for unrelated parties is sufficiently complete to conclude that all material differences between these uncontrolled transactions and the controlled performance of an intermediary function, including possible differences in the amount of risk assumed in connection with performing that function, have been identified and that appropriate adjustments have been made. If the comparable gross services margin earned by unrelated parties
(ii) Analysis of the relative contributions of Companies A and B in obtaining and undertaking the contract indicates that Company B's role was primarily to facilitate the consulting arrangement between Company A and the Country X client. Although no reliable internal data are available regarding comparable transactions with uncontrolled entities, reliable data exist regarding commission rates for similar facilitating services between uncontrolled parties. These data indicate that a 3% commission (3% of total engagement fee) is charged in such transactions. Information regarding the uncontrolled comparables is sufficiently complete to conclude that it is likely that all material differences between the controlled and uncontrolled transactions have been identified and adjusted for. If the appropriate gross services profit margin is 3% of total fees, then an arm's length result of the controlled services transaction is for Company B to retain an amount equal to 3% of total fees paid to it.
(d)
(2)
(ii)
(iii)
(iv)
(3)
(ii)
(B)
(C)
(
(
(
(
(
(iii)
(B)
(4)
(ii) Company A designed an information-technology network for its Country X subsidiary, Company B. The services rendered to Company B are similar in scope and complexity to services that Company A rendered to uncontrolled parties during the year under examination. Using Company A's accounting records (which are determined to be reliable under paragraph (d)(3) of this section), it is possible to identify the comparable transactional costs involved in the controlled services transaction with reference to the costs incurred by Company A in rendering similar design services to uncontrolled parties. Company A's records indicate that it does not incur any additional types of costs in rendering similar services to uncontrolled customers. The data available are sufficiently complete to conclude that it is likely that all material differences between the controlled and uncontrolled transactions have been identified and adjusted for. Based on the gross services profit markup data derived from Company A's uncontrolled transactions involving similar design services, an arm's length result for the controlled services transaction is equal to the price that will allow Company A to earn a 10% gross services profit markup on its comparable transactional costs.
(ii) On some occasions, Company A and its subsidiaries undertake engagements directly for clients. On other occasions, they work as subcontractors for uncontrolled parties on more extensive supply-chain consulting engagements for clients. In undertaking the latter engagements with third-party consultants, Company A typically prices its services at four times the compensation costs of its consultants, defined as the consultants' base salary plus estimated fringe benefits, as defined in the table below:
(iii) In uncontrolled transactions, Company A also charges the customer, at no markup, for out-of-pocket expenses such as travel,
(iv) Company B, a Country X subsidiary of Company A, contracts to render consulting services to a Country X client in the banking industry. In undertaking this engagement, Company B uses its own consultants and also uses the services of Company A project managers and technical staff that specialize in the banking industry for 75 hours and 380 hours, respectively. The data available are sufficiently complete to conclude that it is likely that all material differences between the controlled and uncontrolled transactions have been identified and adjusted for. Based on reliable data concerning the compensation costs to Company A, an arm's length result for the controlled services transaction is equal to $144,000. This is calculated as follows: [4 × (75 hrs. × $100/hr.)] + [4 × (380 hrs. × $75/hr.)] = $30,000 + $114,000 = $144,000, reflecting a 4x markup on the total compensation costs for Company A project managers and technical staff. In addition, consistent with Company A's pricing of uncontrolled transactions, Company B must reimburse Company A for appropriate out-of-pocket expenses incurred in performing the services.
(e)
(2)
(ii)
(iii)
(3)
(ii) Based on the facts and circumstances, it is determined that the comparable profits method will provide the most reliable measure of an arm's length result. Company A is selected as the tested party. No data are available for comparable independent manufacturing firms that render advertising services to third parties. Financial data are available, however, for ten independent firms that render similar advertising services as their principal business activity in Country X. The ten firms are determined to be comparable under § 1.482-5(c). Neither Company A nor the comparable companies use valuable intangibles in rendering the services.
(iii) Based on the available financial data of the comparable companies, it cannot be determined whether these comparable companies report costs for financial accounting purposes in the same manner as the tested party. The publicly available financial data of the comparable companies segregate total services costs into cost of goods sold and sales, general and administrative costs, with no further segmentation of costs provided. Due to the limited information available regarding the cost accounting practices used by the comparable companies, the ratio of operating profits to total services costs is determined to be the most appropriate profit level indicator. This ratio includes total services costs to minimize the effect of any inconsistency in accounting practices between Company A and the comparable companies.
(ii) Based on all the facts and circumstances, it is determined that the comparable profits method will provide the most reliable measure of an arm's length result. Company B is selected as the tested party, and its rendering of management consulting services is identified as the relevant business activity. Data are available from ten domestic companies that operate in the industry segment involving management consulting and that perform activities comparable to the relevant business activity of Company B. These comparables include entities that primarily perform management consulting services for uncontrolled parties. The comparables incur similar risks as Company A incurs in performing the consulting services, and do not make use of valuable intangibles or special processes.
(iii) Based on the available financial data of the comparables, it cannot be determined whether the comparables report their costs for financial accounting purposes in the same manner as Company B reports its costs in the relevant business activity. The available financial data for the comparables only report an aggregate figure for costs of goods sold and operating expenses, and do not segment the underlying services costs. Due to this limitation, the ratio of operating profits to total services costs is determined to be the most appropriate profit level indicator.
(iv) For the taxable years 2003 through 2005, Company B shows the following results for the services performed for Company A:
(v) After adjustments have been made to account for identified material differences between the relevant business activity of Company B and the comparables, the average ratio for the taxable years 2003 through 2005 of operating profit to total services costs is calculated for each of the uncontrolled service providers. Applying each ratio to Company B's average total services costs from the relevant business activity for the taxable years 2003 through 2005 would lead to the following comparable operating profit (COP) for the services rendered by Company B:
(vi) The available data are not sufficiently complete to conclude that it is likely that all material differences between the relevant business activity of Company B and the comparables have been identified. Therefore, an arm's length range can be established only pursuant to § 1.482-1(e)(2)(iii)(B). The arm's length range is established by reference to the interquartile range of the results as calculated under § 1.482-1(e)(2)(iii)(C), which consists of the results ranging from $168,000 to $134,160. Company B's reported average operating profit of zero ($0) falls outside this range. Therefore, an allocation may be appropriate.
(vii) Because Company B reported income of zero, to determine the amount, if any, of the allocation, Company B's reported operating profit for 2005 is compared to the comparable operating profits derived from the comparables' results for 2005. The ratio of operating profit to total services costs in 2005 is calculated for each of the comparables and applied to Company B's 2005 total services costs to derive the following results:
(viii) Based on these results, the median of the comparable operating profits for 2005 is $151,775. Therefore, Company B's income for 2005 is increased by $151,775, the difference between Company B's reported operating profit for 2005 of zero and the median of the comparable operating profits for 2005.
(f)
(ii)
(2)
(ii)
(iii)
(iv)
(A) The sum of six percentage points and half of the markup charged by the taxpayer (“X”); and
(B) Ten percentage points, where the markup charged by the taxpayer is not less than zero. Thus:
(C) The following table illustrates the results of these calculations in representative cases:
(v)
(1) The amount charged by the taxpayer is less than the total services costs with respect to the services; or
(2) The markup on total services costs charged by the taxpayer in the controlled transaction exceeds the arm's length markup on total services costs.
(B)
(3)
(i)
(ii)
(
(
(B)
(
(
(4)
(ii)
(iii)
(iv)
(v)
(A) Manufacturing;
(B) Production;
(C) Extraction;
(D) Construction;
(E) Reselling, distribution, acting as a sales or purchasing agent, or acting under a commission or other similar arrangement;
(F) Research, development, or experimentation;
(G) Engineering or scientific;
(H) Financial transactions, including guarantees; and
(I) Insurance or reinsurance.
(5)
Company P renders accounting services to Company S. Company P uses the simplified cost-based method for the accounting services, and determines the amount charged as Company P's total cost of rendering the services, with no markup. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner determines that the interquartile range of arm's length markups on total services costs is between 3% and 6%, and the median is 4%. Because the arm's length markup on total services costs (4%) exceeds the markup on total services costs applied by the taxpayer (0%) by fewer than the applicable number of percentage points (6), the Commissioner may not make an allocation.
Company P performs logistics-coordination services for its subsidiaries, including Company S. Company P uses the simplified cost-based method for the logistics services, and determines the amount charged as Company P's total cost of rendering the services, plus a markup of 5%. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner determines that the interquartile range of arm's length markups on total services costs is between 6% and 13%, and the median is 9%. Because the arm's length markup on total services costs (9%) exceeds the markup on total services costs applied by the taxpayer (5%) by more than the applicable number of percentage points (3.5), the limitations imposed by this rule on the Commissioner's authority to make an allocation do not apply. With respect to the determination and application of the arm's length range, see § 1.482-1(e).
Company P renders administrative services to its subsidiaries, including Company S. Company P uses the simplified cost-based method for the administrative services, as it has for the preceding two years, and determines for all three years the amount charged as Company P's total cost of rendering the services, plus a markup of 5%. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner identifies uncontrolled comparables in the same industry segment that perform similar functions and bear similar risks as Company P. These transactions meet the comparability criteria under the comparable profits method of paragraph (e) of this section and § 1.482-5. An analysis of the information available on the comparable parties shows that the ratio of operating profit to total services costs is the most appropriate profit level indicator, and that this ratio is relatively stable where at least three years are included in the average. The information available is not sufficiently complete to conclude that it is likely that all material differences between Company P and the uncontrolled comparables have been identified. Consequently, the Commissioner determines an arm's length range based on the results of all the uncontrolled comparables that achieve a similar level of comparability and reliability, and the Commissioner adjusts that range by applying a valid statistical method to the results of all the uncontrolled comparables. The Commissioner determines an interquartile range of arm's length markups on total services costs, which is between 6% and 13%, with a median of 9%. Because the arm's length markup on total services costs (9%) exceeds the average three-year markup on total services costs applied by the taxpayer (5%) by more than the applicable number of percentage points (3.5), the limitations imposed by this rule on the Commissioner's authority to make an allocation do not apply. With respect to the determination and application of the arm's length range, see § 1.482-1(e).
Company P renders administrative services to Company S. Company P uses the simplified cost-based method for the administrative services, and determines the amount charged as Company P's total cost of rendering the services, plus a markup of 6%. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner determines that the interquartile range of arm's length markups on total services costs is between 3% and 5%, and the median is 4.5%. Because the arm's length markup on total services costs (4.5%) is less than the markup applied by the taxpayer (6%), the limitations imposed by this rule on the Commissioner's authority to make an allocation do not apply.
Company P provides administrative services to Company S. P uses the simplified cost-based method for the administrative services, and determines the amount charged as Company P's total cost of providing the services, minus a “markdown” of 1%. Because the markup on total services costs applied by the taxpayer in the controlled transaction (−1%) is less than zero, the limitations imposed by this rule on the Commissioner's authority to make an allocation do not apply.
Company P performs custodial and maintenance services for certain office properties owned by Company S. Company P uses the simplified cost-based method for the administrative services, and determines the amount charged as Company P's total cost of providing the services plus a markup of 8%. The Commissioner identifies uncontrolled comparables that perform a similar range of custodial and maintenance services for uncontrolled parties and charge those parties an annual fee based on the total square footage of the property. These transactions meet the comparability criteria under the comparable uncontrolled services price method of paragraph (b) of this section. Based on reliable accounting information, the Commissioner determines that it is possible to restate the price for the maintenance and custodial services charged to uncontrolled parties as representing a markup on total services costs of 4%. Because the markup on total services costs charged by the taxpayer on the controlled transactions exceeds the markup on total services costs determined by an application of the section 482 regulations without regard to this paragraph (f), the limitations imposed by this rule on the Commissioner's authority to make an allocation do not apply.
Company P performs logistics-coordination services for its subsidiaries, including Company S. Company P uses the
Company P provides administrative services to Company S. Company P uses the simplified cost-based method for the administrative services, and determines the amount charged as Company P's total cost of providing the services, plus a markup of 4%. The taxpayer allocates and apportions to the administrative services total services costs of 300x, and reports a total price of 312x. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner determines that the interquartile range of arm's length markups on total services costs is between 3% and 6%, and the median is 4%. Because the arm's length markup on total services costs (4%) is equivalent to the markup on total services costs applied by the taxpayer (4%), the simplified cost-based method would generally prevent an allocation by the Commissioner based on the amount of markup charged. On examination, the Commissioner determines that the taxpayer should have allocated and apportioned total services costs of 325x to the administrative services, rather than 300x. Because the taxpayer's method of allocation and apportionment was not reasonable under the facts and circumstances, the Commissioner may make an allocation to reflect application of the markup on total services costs claimed by the taxpayer to the correct base of costs.
Company P provides administrative services to Company S. Company P uses the simplified cost-based method for the administrative services, and determines the amount charged as Company P's total cost of providing the services, with a 4% markup. The taxpayer allocates and apportions to the administrative services total services costs of 300x. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner determines that the interquartile range of arm's length markups on total services costs is between 3% and 6%, and the median is 4%. Because the arm's length markup on total services costs (4%) is equivalent to the markup on total services costs applied by the taxpayer (4%), the simplified cost-based method would generally prevent an allocation by the Commissioner based on the amount of markup charged. On examination, the Commissioner determines that the taxpayer should have allocated and apportioned total services costs of 280x to the administrative services, rather than 300x. Because the taxpayer's method of allocation and apportionment was not reasonable under the facts and circumstances, the Commissioner may make an allocation to reflect application of the markup on total services costs claimed by the taxpayer to the correct base of costs.
Company P performs supply-chain management services for its subsidiaries, including Company S. Company P uses the simplified cost-based method for these supply-chain services, and determines the amount charged as the total costs of providing the services plus a markup of 8%. Based on an application of the section 482 regulations without regard to this paragraph (f), the Commissioner determines that the interquartile range of arm's length markups is between 7% and 25%, and the median is 18%. Because the arm's length markup on total services costs is more than 10%, the simplified cost-based method is not applicable.
(g)
(2)
(ii) Analysis of the facts and circumstances indicates that both Company A and Company B possess valuable intangibles that they use to conduct the spare parts auction business. Company A bore the economic risks of developing and maintaining software and the interactive database. Company B bore the economic risks of developing the necessary technology to transmit information from its server to Company A's data-center, and to allow uncontrolled companies to access Company A's database. Company B helped to enhance the value of Company A's trademark and to establish a network of customers in Country Y. In addition, because the transactions between Company A and Company B are highly integrated, it is difficult to reliably evaluate them separately. Given the facts and circumstances, the Commissioner determines that a residual profit split method will provide the most reliable measure of an arm's length result.
(iii) Under the residual profit split method, profits are first allocated based on the routine contributions of each taxpayer. Routine contributions include general sales, marketing or administrative functions performed by Company B for Company A for which it is possible to identify market returns. Any residual profits will be allocated based on the nonroutine contributions of each taxpayer. Since both Company A and Company B provided nonroutine contributions, the residual profits are allocated based on these contributions.
(i) Company A, a U.S. corporation, is a large multinational corporation engaged in oil and mineral exploration, development and extraction/mining. In performing these functions, Company A uses teams of specialists who are drawn from its employees and employees of two of its wholly owned subsidiaries, Company B and Company C. Company B is a U.S. corporation engaged in the business of providing general construction contracting services. Company C is a mining/extraction subsidiary of Company A and is located in Country C.
(ii) Through its long-term relationship with the Country C government, Company C obtains drilling rights on a tract of land for which it already owns mining rights. Because Company C lacks the expertise and personnel to perform oil exploration, Company C enters into an agreement with Companies A and B to provide certain services to facilitate exploration for oil on the tract. Specifically, Company A provides management services and Company B provides all necessary labor
(iii) Analysis of the facts and circumstances indicates that Companies A, B, and C all make nonroutine contributions. In addition, because the transactions between Companies A, B and C are highly integrated, it is difficult to reliably evaluate them on a separate basis. Given the facts and circumstances, the Commissioner determines that a residual profit split method will provide the most reliable measure of the arm's length results of the services performed by all three related taxpayers.
(iv) Under the residual profit split method, profits are first allocated based on the routine contributions of the three controlled taxpayers. Routine contributions include any general, sales, marketing or administrative functions performed by either Companies A, B or C for which it is possible to identify market returns. Any residual profits will be allocated based on the nonroutine contributions made by each taxpayer. Since Company C provided nonroutine contributions in the form of drilling rights, residual profits are allocated to Company C based on this contribution.
(h)
(i)
(2)
(i)
(ii)
(iii)
(3)
(4)
(5)
(i) Company X is a member of a controlled group that has operated in the pharmaceutical sector for many years. In Year 1, Company X enters into a written services agreement with Company Y, another member of the controlled group, whereby Company X will perform certain research and development activities for Company Y. The parties enter into the agreement before Company X undertakes any of the research and development activities covered by the agreement. At the time the agreement is entered into, the possibility that any new products will be developed is highly uncertain and the possible market or markets for any products that may be developed are not known and cannot be estimated with any reliability. Under the agreement, Company Y will own any patent or other rights that result from the activities of Company X under the agreement and Company Y will make
(ii) As a result of research and development activities performed by Company X for Company Y in Years 1 through 4, a compound is developed that may be more effective than existing medications in the treatment of certain conditions. Company Y registers the patent rights with respect to the compound in several jurisdictions in Year 4. In Year 6, Company Y begins commercial sales of the product in Jurisdiction A and, in that year, Company Y makes the payment to Company X that is required under the agreement. Sales of the product continue in Jurisdiction A in Years 7 through 9 and Company Y makes the payments to Company X in Years 7 through 9 that are required under the agreement.
(iii) The years under examination are Years 6 though 9. In evaluating whether the contingent payment terms will be recognized, the Commissioner considers whether the conditions of § 1.482-9(i)(2) are met and whether the specified contingency and basis of payment are consistent with the economic substance of the controlled services transaction and with the conduct of the controlled parties. The Commissioner determines that the contingent-payment arrangement is reflected in the written agreement between Company X and Company Y; that commercial sales of products developed under the arrangement represent future benefits for Company Y directly related to the controlled services transaction; and that the basis for the payment provided for in the event such sales occur reflects the recipient's benefit and the renderer's risk. Consistent with § 1.482-1(d)(3)(ii)(B) and (iii)(B), the Commissioner determines that the parties' conduct over the term of the agreement has been consistent with their contractual allocation of risk; that Company X has the financial capacity to bear the risk that its research and development services may be unsuccessful and that it may not receive compensation for such services; and that Company X exercises managerial and operational control over the research and development, such that it is reasonable for Company X to assume the risk of those activities. The Commissioner also determines that the arrangement is consistent with terms that uncontrolled parties operating under similar conditions could reasonably be expected to adopt with respect to comparable research and development activities. Based on all these facts, the Commissioner determines that the terms of the contingent-payment arrangement are consistent with economic substance.
(iv) In determining whether the amount charged under the contingent-payment arrangement in each of Years 6 through 9 is arm's length, the Commissioner evaluates under § 1.482-9 and other applicable rules under § 482 the compensation paid in each year for the research and development services. This analysis takes into account that under the contingent-payment terms Company X bears the risk that it might not receive payment for its services in the event that those services do not result in marketable products and the risk that the magnitude of its payment depends on the magnitude of product sales, if any. The Commissioner also considers the alternatives reasonably available to the parties in connection with the controlled services transaction. One such alternative, in view of Company X's willingness and ability to bear the risk and expenses of research and development activities, would be for Company X to undertake such activities on its own behalf and to license the rights to products successfully developed as a result of such activities. Accordingly, in evaluating the reasonableness of the compensation of x% of gross sales that is paid to Company X during the first four years of commercial sales of derivative products, the Commissioner may consider the royalties (or other consideration) charged for intangibles that are comparable to those incorporated in the derivative products and that resulted from Company X's research and development activities under the contingent-payment arrangement.
(i) The facts are the same as in paragraphs (i) and (ii) of
(ii) The years under examination are Years 6 though 9. In evaluating whether the contingent payment terms will be recognized, the Commissioner considers whether the requirements of § 1.482-9(i)(2) were met at the time the written agreement was entered into and whether the specified contingency and basis for payment are consistent with the economic substance of the controlled services transaction and with the conduct of the controlled parties. The Commissioner determines that the contingent-payment terms are reflected in the written agreement between Company X and Company Y and that commercial sales of products developed under the arrangement represent future benefits for Company Y directly related to the controlled services transaction. However, in this case, the Commissioner determines that the basis for payment provided for in the event such sales occur (costs of the services plus x%, representing the markup for contract research in the absence of any nonpayment risk) does not reflect the recipient's benefit and the renderer's risks in the controlled services transaction. The Commissioner also determines that the arrangement is not consistent with terms that uncontrolled parties operating under similar conditions could reasonably be expected to adopt with respect to comparable research and development activities. Based on all these facts, the Commissioner determines that the terms of the contingent-payment arrangement are not consistent with economic substance.
(iii) Accordingly, the Commissioner determines to exercise its authority to impute contingent-payment contractual terms that accord with economic substance, pursuant to paragraph (i)(3) of this section and § 1.482-1(d)(3)(ii)(B). In this regard, the Commissioner takes into account that at the time the arrangement was entered into, the possibility that any new products would be developed was highly uncertain and the possible market or markets for any products that may be developed were not known and could not be estimated with any reliability. In such circumstances, it is reasonable to conclude that one possible basis of payment that uncontrolled parties could adopt in similar transactions under similar circumstances, in order to reflect the recipient's benefit and the renderer's risks, would be a charge equal to a percentage of commercial sales of one or more derivative products that result from the research and development activities. The Commissioner in this case may impute terms that require Company Y to pay Company X a percentage of sales of the products developed under the agreement in each of Years 6 through 9.
(iv) In determining an appropriate arm's length charge under such imputed contractual terms, the Commissioner conducts an analysis under § 1.482-9 and other applicable rules under section 482, and considers the alternatives reasonably available to the parties in connection with the controlled services transaction. One such alternative, in view of Company X's willingness and ability to bear the risks and expenses of research and development activities, would be for Company X to undertake such activities on its own behalf and to license the rights to products successfully developed as a result of such activities. Accordingly, for purposes of its determination, the Commissioner may consider the royalties (or other consideration) charged for intangibles that are comparable to those incorporated in the derivative products that resulted from Company X's research and development activities under the contingent-payment arrangement.
(j)
(k)
(2)
(ii)
(3)
Company A pays an annual license fee of 500x to an uncontrolled taxpayer for unlimited use of a database within the corporate group. Under the terms of the license with the uncontrolled taxpayer, Company A is permitted to use the database for its own use and in rendering research services to its subsidiary, Company B. Company B obtains benefits from the database that are similar to those that it would obtain if it had independently licensed the database from the uncontrolled taxpayer. Evaluation of the arm's length charge (under a method in which costs are relevant) to Company B for the controlled services that incorporate use of the database must take into account the full amount of the license fee of 500x paid by Company A, as reasonably allocated and apportioned to the relevant benefits, although the incremental use of the database for the benefit of Company B did not result in an increase in the license fee paid by Company A.
(i) Company A is a consumer products company located in the United States. Companies B and C are wholly owned subsidiaries of Company A and are located in Countries B and C, respectively. Company A and its subsidiaries manufacture products for sale in their respective markets. Company A hires a consultant who has expertise regarding a manufacturing process used by Company A and its subsidiary, Company B. Company C, the Country C subsidiary, uses a different manufacturing process, and accordingly will not receive any benefit from the outside consultant hired by Company A. In allocating and apportioning the cost of hiring the outside consultant (100), Company A determines that sales constitute the most appropriate allocation key.
(ii) Company A and its subsidiaries have the following sales:
(iii) Because Company C does not obtain any benefit from the consultant, none of the costs are allocated to it. Rather, the costs of 100 are allocated and apportioned ratably to Company A and Company B as the entities that obtain a benefit from the campaign, based on the total sales of those entities (500). An appropriate allocation of the costs of the consultant is as follows:
(l)
(2)
(3)
(ii)
(iii)
(iv)
(v)
(4)
(m)
(2)
(3)
(4)
(5)
(6)
(i) U.S. parent corporation Company X enters into an agreement to maintain equipment of Company Y, a foreign subsidiary. The maintenance of the equipment requires the use of spare parts. The cost of the spare parts necessary to maintain the equipment amounts to approximately 25 percent of the total costs of maintaining the equipment. Company Y pays a fee that includes a charge for labor and parts.
(ii) Whether this integrated transaction is evaluated as a controlled services transaction or is evaluated as a controlled services transaction and the transfer of tangible property depends on which approach will provide the most reliable measure of an arm's length result. If it is not possible to find comparable uncontrolled services transactions that involve similar services and tangible property transfers as the controlled transaction between Company X and Company Y, it will be necessary to determine the arm's length charge for the controlled services, and then to evaluate separately the arm's length charge for the tangible property transfers under § 1.482-1 and §§ 1.482-3 through 1.482-6. Alternatively, it may be possible to apply the comparable profits method of § 1.482-5, to evaluate the arm's length profit of Company X or Company Y from the integrated controlled transaction. The comparable profits method may provide the most reliable measure of measure of an arm's length result if uncontrolled parties are identified that perform similar, combined functions of maintaining and providing spare parts for similar equipment.
(i) U.S. parent corporation Company X sells industrial equipment to its foreign subsidiary, Company Y. In connection with this sale, Company X renders to Company Y services that consist of demonstrating the use of the equipment and assisting in the effective start-up of the equipment. Company X structures the integrated transaction as a sale of tangible property and determines the transfer price under the comparable uncontrolled price method of § 1.482-3(b).
(ii) Whether this integrated transaction is evaluated as a transfer of tangible property or is evaluated as a controlled services transaction and a transfer of tangible property depends on which approach will provide the most reliable measure of an arm's length result. In this case, the controlled services may be similar to services rendered in the transactions used to determine the comparable uncontrolled price, or they may appropriately be considered a difference between the controlled transaction and comparable transactions with a definite and reasonably ascertainable effect on price for which appropriate adjustments can be made. See § 1.482-1(d)(3)(ii)(A)(
(i) The facts are the same as in
(ii) Whether this integrated transaction is evaluated as a transfer of tangible property or is evaluated as a controlled services transaction and a transfer of tangible property depends on which approach will provide the most reliable measure of an arm's length result. It may not be possible to identify comparable uncontrolled transactions in which a seller of merchandise renders services similar to the ongoing services rendered by Company X to Company Y. In such a case, the incremental services in connection with ongoing use of the equipment could not be taken into account as a comparability factor because they are not similar to the services rendered in connection with sales of similar tangible property. Accordingly, it may be necessary to evaluate separately the transfer price for such services under this section in order to produce the most reliable measure of an arm's length result. Alternatively, it may be possible to apply the comparable profits method of § 1.482-5 to evaluate the arm's length profit of Company X or Company Y from the integrated controlled transaction. The comparable profits method may provide the most reliable measure of an arm's length result if uncontrolled parties are identified that perform the combined functions of selling equipment and rendering ongoing after-sale services associated with such equipment. In that case, it would not be necessary to separately evaluate the transfer price for the controlled services under this section.
(i) Company X, a U.S. corporation, and Company Y, a foreign corporation, are members of a controlled group. Both companies develop and manufacture adhesives. Company X also renders research and development services. As part of rendering these services, Company X provides technical manuals and documentation relating to Company X's manufacturing activities. In the process of performing research and development activities for Company Y, Company X developed know-how regarding a more cost-effective process to manufacture adhesives. Company X memorialized this know-how in technical manuals and other related technical documentation, and provided these documents to Company Y, without any restrictions on Company Y's use of the know-how or related materials.
(ii) The controlled services transaction between Company X and Company Y includes an element that constitutes the transfer of intangible property (
(n)
(a) * * *
(3) * * *
4. S, a U.S. reporting corporation, provides computer consulting services for its foreign parent, X. Based on the application of section 482 and the regulations thereunder, it is determined that the cost of services plus method, as described in § 1.482-9(d), will provide the most reliable measure of an arm's length result, based on the facts and circumstances of the controlled transaction between S and X. S is required to maintain records to permit verification upon audit of the comparable transactional costs (as described in § 1.482-9(d)(2)(iii)) used to calculate the arm's length price. Based on the facts and circumstances, if it is determined that X's records are relevant to determine the correct U.S. tax treatment of the controlled transaction between S and X, the record maintenance requirements under section 6038A(a) and this section will be applicable to the records of X.
1. Redesignating paragraphs (d)(2)(ii)(A) through (d)(2)(ii)(G) as paragraphs (d)(2)(ii)(A)(
2. Adding a new paragraph (d)(2)(ii)(B).
3. Revising paragraphs (d)(2)(iii)(B)(
4. Adding a third sentence to paragraph (g).
The revisions and additions read as follows:
(d) * * *
(2) * * *
(ii) * * *
(B)
(iii) * * *
(B) * * *
(
(
(g) * * * Paragraphs (d)(2)(ii)(B), (iii)(B)(
26 U.S.C. 7805 * * *
1. Revising the fourth sentence and adding a fifth sentence in paragraph (c)(2)(iii).
2. Adding a second sentence to paragraph (d).
The revision and additions read as follows:
(c) * * *
(2) * * *
(iii)
(d)