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Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain Boeing Model 747-400, -400D, and -400F series airplanes, that requires reviewing airplane maintenance records; inspecting the yaw damper actuator portion of the upper and lower rudder power control modules (PCM) for cracking, and replacing the PCMs if necessary; and reporting airplane maintenance records review and inspection results to the manufacturer. This action is necessary to detect and correct cracking in the yaw damper actuator portion of the upper and lower rudder PCMs, which could result in an uncommanded left rudder hardover, consequent increased pilot workload, and possible runway departure upon landing. This action is intended to address the identified unsafe condition.
Effective December 18, 2003.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 18, 2003.
The service information referenced in this AD may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Doug Tsuji, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6487; fax (425) 917-6590.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747-400, -400D, and -400F 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.
Two commenters state that they agree with the NPRM.
One commenter requests that paragraph (f) of the NPRM be revised to permit installation of the components without continuing inspections at each installation of the components. The commenter states that it does not believe that is the intent of the applicable service bulletin. The commenter further states that, without specific relief, paragraph (f) of the NPRM will eventually require inspections on parts with fewer total flight hours or total flight cycles than the thresholds specified by the NPRM.
The FAA notes that the requirements of paragraph (f) of the final rule to prohibit units that have reached the thresholds specified in paragraph (f) of the final rule (15,000 total flight hours or more or 2,000 total flight cycles or more) may impose a burden to the affected operators. However, as noted in the “Interim Action” section of the NPRM, we consider the actions specified in this final rule to be interim actions, since the root cause of the fatigue cracking has not been determined. We are trying to gain better insight into the nature, cause, extent of the cracking, and to develop a final action for the unsafe condition. However, to prevent continuing inspections upon each installation, we acknowledge that some relief should be provided. Therefore, we have revised paragraph (f) of the final rule to specify that a rudder PCM with 15,000 total flight hours or more or 2,000 total flight hours or more may not be installed “unless it has been inspected within the previous 15,000 flight hours or 2,000 flight cycles” of the PCM. We have determined that the relief provided by revising paragraph (f) of the final rule will continue to provide an acceptable level of safety for the fleet.
One commenter, the airplane manufacturer, requests that use of the term “PCM” in the NPRM be clarified by adding the following words: “with a main manifold.” The commenter notes that the 15,000 total flight hours and 2,000 total flight cycle thresholds are based on the life of the PCM main manifold.
We agree that clarification is necessary, and have revised the final rule accordingly.
One commenter requests that the compliance time be extended from “within 3 months after the effective date of the AD” to “within 1 year after the effective date of the AD” for the following reasons:
• Tool Availability—The commenter notes that Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003, states that no special tools are needed to perform the proposed ultrasonic inspection. However, the commenter points out that two special tools are actually needed and that it was only recently able to obtain them.
• Accessibility—The commenter states that hangar availability will cause a problem, since the hangars available for inspecting airplanes affected by the NPRM are always occupied by airplanes undergoing heavy maintenance. The commenter states that it will lose valuable time for its fleet if it has to inspect within the proposed 3-month compliance time.
• Inspection Criteria—The commenter notes that the applicable service bulletin does not specify repetitive inspections or any terminating action. The commenter thinks that the inspection is mainly to collect data and, therefore, cannot understand the urgency of the 3-month compliance time.
We do not agree with the commenter's request. As stated previously in this final rule, the root cause of the fatigue cracking has not been determined. Because the root cause is unknown, we do not know if the fatigue cracking that was reported is a random event or if it may indicate that the structural life of the PCMs with a main manifold is shorter than expected. We agree with the referenced service bulletin that special tools are not necessary to perform the ultrasonic inspection. However, the manufacturer has advised that other tools used as aids in performing the inspection are available to operators. Additionally, we acknowledge that the commenter may lose time for its fleet if it has to inspect within the proposed 3-month compliance time. However, because of the severe consequences of the unsafe condition existing and the fact that there were apparently no indications of a crack developing, we have determined that the 3-month compliance time is prudent and appropriate. No change is necessary to the final rule in this regard. However, under the provisions of paragraph (g) of the final rule, we may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
One commenter requests that the criterion for airplanes specified to perform the proposed inspections be revised from 15,000 total flight hours or more or 2,000 total flight cycles or more to 55,000 total flight cycles or 7,500 total flight cycles, as specified by Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003. The commenter states that its service experience supports the criterion specified in the applicable service bulletin.
We do not agree with the commenter's request. We acknowledge that the applicable service bulletin does specify that the reported incident occurred on a rudder PCM with approximately 55,000 flight hours and 7,500 flight cycles, and that the airplanes that were chosen for the investigation had accumulated at least 55,000 flight hours and 7,500 flight cycles. However, the Accomplishment Instructions (paragraph 3.B.1 of the applicable service bulletin) clearly states that, “If your records show that the upper and lower rudder PCMs each have a main manifold with less than 15,000 flight hours or 2,000 flight cycles: It is not necessary to do the inspections* * *” We have evaluated these criteria and conclude that the appropriate criterion for applicable airplanes to be inspected is those airplanes with PCMs that have accumulated 15,000 total flight hours or 2,000 total flight hours. No change to the final rule is necessary in this regard.
One commenter, the PCM manufacturer, requests that the sensitivity level of the dye penetrant inspection for PCMs that are cracked and returned to the manufacturer be revised. The commenter notes that, after the issuance of Boeing Alert Service Bulletin 747-27A2397, it increased the inspection sensitivity level from Level 3 to Level 4 for those PCMs that were returned.
We recognize the commenter's expertise and appreciate the information it has provided. This final rule requires PCMs with any cracking to be returned to the PCM manufacturer, but does not specify the inspection process to be used by the PCM manufacturer. Therefore, the change in sensitivity level of the dye penetrant inspection on PCMs returned to the PCM manufacturer does not directly affect the requirements of this AD. No change to this final rule is necessary in this regard.
One commenter states that industry must develop a set of operational procedures to allow flight crews to deal with a flight situation such as the one described in the NPRM. The commenter agrees with the actions proposed in the NPRM, but specifies that additional procedures for flight crews are necessary.
We acknowledge the commenter's concern. As previously explained, we consider this final rule to be interim action. Based on the findings of the reports to be submitted and any other pertinent information, we may consider further rulemaking actions. However, until such findings are made known and further actions developed, we consider the actions specified in the final rule to provide an acceptable level of safety. Therefore, no change to the final rule is necessary in this regard.
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 changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the final rule.
We consider this final rule interim action. The inspection reports that are required by this final rule will enable the manufacturer and the FAA to obtain better insight into the nature, cause, and extent of the cracking, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.
There are approximately 180 airplanes of the affected design in the worldwide fleet. The FAA estimates that 13 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the airplane maintenance records review, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $845, or $65 per airplane.
Should an operator be required to accomplish the inspection, it will take approximately 4 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the inspection is estimated to be $260 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, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
To detect and correct cracking in the yaw damper actuator portion of the upper and lower rudder power control module (PCM) main manifolds, which could result in an uncommanded left rudder hardover, consequent increased pilot workload, and possible runway departure upon landing, accomplish the following:
(a) Within 3 months after the effective date of this AD: Review the airplane maintenance records to determine if each PCM has a main manifold with less than 15,000 total flight hours or fewer than 2,000 total flight cycles, or do the inspection required by paragraph (c) of this AD.
(b) If it can be positively determined from the review of the airplane maintenance records that each rudder PCM has a main manifold that is below either of the thresholds specified in paragraph (a) of this AD: Submit a report to the manufacturer in accordance with paragraph (d) of this AD.
(c) If it cannot be positively determined that each rudder PCM has a main manifold that is below either of the thresholds specified in paragraph (a) of this AD: Within 3 months after the effective date of this AD, do an ultrasonic inspection of the yaw damper actuator portion of the upper and lower rudder PCM main manifold in accordance with the Accomplishment Instructions specified in Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003. After completing the actions required by paragraph (c)(1) or (c)(2) of this AD, as applicable, submit a report to the manufacturer in accordance with paragraph (d) of this AD.
(1) If no cracking is found: Apply sealant and a torque stripe and install a lockwire on the applicable rudder PCM per Figure 1 or Figure 2, as applicable, and the Accomplishment Instructions specified in Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003.
(2) If any cracking is found: Before further flight, replace the affected PCM with a PCM with a main manifold having less than 15,000 total flight hours and less than 2,000 total flight cycles, or a PCM with a main manifold that has been inspected by the supplier (Parker Hannifin Corporation) or ultrasonically inspected in accordance with the Accomplishment Instructions specified in Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003.
(d) At the applicable time specified in paragraph (d)(1) or (d)(2) of this AD, accomplish paragraph (e).
(1) If the inspection was done after the effective date of this AD: Submit the report and PCM, if applicable, within 20 days after the inspection.
(2) If the inspection was accomplished prior to the effective date of this AD: Submit the report and PCM, if applicable, within 20 days after the effective date of this AD.
(e) Do the requirements of paragraphs (e)(1) and (e)(2) of this AD. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) Submit a report of the airplane maintenance records review or the inspection findings (positive and negative) to: The Boeing Company, Service Engineering—Mechanical Systems, Attn: R. Adams, fax: (425) 342-5224. The report must contain the airplane and rudder PCM serial numbers, the total flight hours and flight cycles for each rudder PCM (and rudder PCM main manifold, if known), and a description of any damage found. Submission of the Inspection Report Form (Figure 3 of Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003) is an acceptable method of complying with this requirement.
(2) Send parts to Parker Hannifin Corporation in accordance with the shipping instructions specified in Appendix A of the service bulletin.
(f) As of the effective date of this AD, no person shall install on any airplane a rudder PCM with a main manifold having 15,000 total flight hours or more, or 2,000 total flight cycles or more, unless it has been ultrasonically inspected (either by the operator or the supplier) within the previous 15,000 flight hours or 2,000 flight cycles, in accordance with the Accomplishment Instructions specified in Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003.
(g) In accordance with 14 CFR 39.19, the Manager, Seattle Aircraft Certification Office, FAA, is authorized to approve alternative methods of compliance for this AD.
(h) Unless otherwise specified, the actions shall be done in accordance with Boeing Alert Service Bulletin 747-27A2397, dated July 24, 2003. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(i) This amendment becomes effective on December 18, 2003.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD) that is applicable to certain Cessna Model 560 airplanes. This action requires disengaging and tie-strapping the pitch trim and autopilot servo (servo 1) circuit breakers. This action also provides an optional inspection and follow-on actions that, if accomplished, terminates the requirement to disengage and tie-strap those circuit breakers. This action is necessary to prevent a single-point failure in the trim system from causing a runaway trim condition that the pilot may be unable to stop by using the autopilot-disconnect switch. This condition could result in loss of control of the airplane. This action is intended to address the identified unsafe condition.
Effective November 28, 2003.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 28, 2003.
Comments for inclusion in the Rules Docket must be received on or before January 12, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-225-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 this AD may be obtained from Cessna Aircraft Co., P.O. Box 7706, Wichita, Kansas 67277. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; at the FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Bryan Easterwood, Aerospace Engineer, Systems and Equipment Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4132; fax (316) 946-4107.
The FAA has received a report of an accident involving a Cessna Model 525 airplane. The pilot reported a problem with the trim system and was forced to ditch the airplane in the water near Coupeville, Washington. Although the final investigation by the National Transportation Safety Board is not complete, investigation revealed a discrepancy that could allow single-wire shorting to 28 volts or the failure of a relay in the trim system such that the relay contacts remain closed. In addition, the pilot may be unable to stop the runaway trim condition by pressing the red autopilot-disconnect switch located on the control wheel, due to the design of the trim system on a certain serial number range of airplanes. A runaway trim condition that the pilot is unable to stop by using the autopilot-disconnect switch could result in loss of control of the airplane.
The design of the trim system on certain Cessna Model 560 airplanes is the same as that on certain Cessna Model 525 airplanes. Therefore, Model 560 airplanes may be subject to the same unsafe condition.
We have reviewed and approved Cessna Alert Service Letter ASL560-27-10, dated October 10, 2003. Among other actions, that service letter describes procedures for disengaging the pitch trim and autopilot (AP) servo (servo 1) circuit breakers and tie-strapping those circuit breakers so that they may not be engaged. Accomplishment of these actions specified in the service letter is intended to adequately address the identified unsafe condition.
Cessna Alert Service Letter ASL560-27-10 also describes procedures for an inspection to determine the part number of the installed trim pc board assembly, and follow-on actions. The follow-on actions include replacement of the assembly with an improved assembly and installation of an extension cap on the pitch trim circuit breaker, as applicable. Once the inspection and applicable follow-on actions have been accomplished, the tie straps on the pitch trim and AP servo circuit breakers may be removed and those circuit breakers may be re-engaged.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD requires disengaging and tie-strapping the pitch trim and AP servo circuit breakers. This AD also provides for an optional inspection and follow-on actions that terminates the requirement for disengaging and tie-strapping those circuit breakers. These actions must be accomplished per the service letter described previously, except as discussed below.
Although the service letter requires that the disengaging and tie-strapping of the pitch trim and AP servo circuit breakers be accomplished upon receipt of the service letter, this AD allows accomplishment of these actions within 5 days or 10 hours time-in-service after the effective date of this AD, whichever is first. We find that such a compliance time represents an appropriate compliance time for affected airplanes to continue to operate without compromising safety.
Although the service letter is effective for certain Model 560 airplanes having serial numbers 0260 through 0538 inclusive, this AD is applicable to certain Model 560 airplanes having serial numbers 0260 through 0396 inclusive. While the discrepancy that could allow a single-point failure in the trim system, causing a runaway trim condition, may occur on any airplane having a serial number in the range 0260 through 0538 inclusive, on airplanes having serial numbers 0397 through 0538 inclusive, the pilot would be able to stop the runaway trim condition by pressing the red autopilot-disconnect switch located on the control wheel. Therefore, we have determined that an acceptable level of safety exists on airplanes having serial numbers 0397 through 0538 inclusive, and it is not
Although the Accomplishment Instructions of the service letter describe procedures for sending a maintenance transaction report to the manufacturer, this AD does not require this action.
We consider this proposed AD interim action. We are currently considering requiring the optional terminating action provided in this AD—inspection of the trim pc board assembly and follow-on actions, which would eliminate the need for the tie straps on the pitch trim and AP servo circuit breakers, and would allow those circuit breakers to be re-engaged. However, the planned compliance time for such actions would likely allow enough time to provide notice and opportunity for prior public comment on the merits of those actions.
Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
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 AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-225-AD.” The postcard will be date stamped and returned to the commenter.
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.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent a single-point failure in the trim system from causing a runaway trim condition that the pilot may be unable to stop by using the autopilot disconnect switch, which could result in loss of control of the airplane, accomplish the following:
(a) Within 5 days or 10 hours time-in-service after the effective date of this AD, whichever is first: Disengage the PITCH TRIM circuit breaker on the left circuit breaker panel and the SERVO 1 circuit breaker on the right circuit breaker panel, and install tie straps on those circuit breakers, per paragraphs 1.A. and 1.B. of the Accomplishment Instructions of Cessna Alert Service Letter ASL560-27-10, dated October 10, 2003.
(b) Accomplishment of the inspection of the trim pc board assembly to determine the part number of the assembly and all applicable follow-on actions; per paragraphs 2.A., 2.B., and 2.C. of the Accomplishment Instructions of Cessna Alert Service Letter ASL560-27-10, dated October 10, 2003; terminates the requirements of paragraph (a) of this AD. Once the inspection and applicable follow-on actions have been accomplished, the tie straps on the pitch trim and autopilot servo circuit breakers may be removed and those circuit breakers may be re-engaged.
(c) As of the effective date of this AD, no person may install a trim pc board assembly having part number 6518351-3 or -5 on any airplane.
(d) In accordance with 14 CFR 39.19, the Manager, Wichita Aircraft Certification Office (ACO), FAA, is authorized to approve alternative methods of compliance for this AD.
(e) The actions shall be done in accordance with Cessna Alert Service Letter ASL560-27-
(f) This amendment becomes effective on November 28, 2003.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding an existing airworthiness directive (AD) for Rolls-Royce Deutschland Ltd & Co KG (RRD) (formerly Rolls-Royce plc) models Tay 650-15 and 651-54 turbofan engines with certain part numbered fan blades and fan discs. That AD currently requires initial and repetitive visual and ultrasonic inspections of fan blades for cracks, and, if necessary, replacement with serviceable parts. In addition, that AD requires recording instances when engines are operated in a stabilized manner in newly prohibited ranges. This ad has the same requirements. In addition, this AD requires recording instances when engines are operated inadvertently in reverse thrust in prohibited ranges, and requires before further flight, initial and repetitive ultrasonic inspections of fan blades for cracks and if necessary, dispositioning of fan blades and fan discs, if certain reverse thrust events occurred. This AD is prompted by updated prohibited ranges of engine operation and the introduction of an N1 Alert System in Fokker Model F.28 Mark 0100 airplanes with Tay 650-15 engines installed. We are issuing this AD to prevent fan blade failures, which can result in an uncontained engine failure, engine fire, and damage to the airplane.
This AD becomes effective December 18, 2003. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of December 18, 2003.
You can get the service information identified in this AD from Rolls-Royce plc, Technical Publications Department, PO Box 31, Derby, England DE248BJ; telephone 44 1332 242424, fax 44 1332 249936.
You may examine the AD docket, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA. You may examine the service information, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
James Lawrence, Aerospace Engineer, Aircraft Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7176, fax (781) 238-7199.
The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to Rolls-Royce Deutschland Ltd & Co KG (RRD) (formerly Rolls-Royce plc) models Tay 650-15 and 651-54 turbofan engines with certain part numbered fan blades and fan discs. We published the proposed AD in the
We provided the public with the opportunity to participate in the development of this AD. We have considered the comments received.
One commenter states that according to Table 1 of the NPRM, if a powerback event is performed with a Fokker Model F.28 Mark 0100 airplane that is not equipped with the N1 Alert System, and the pilot believes the fan speed (N1) reached or exceeded 57%, for 7.5 seconds or more, the pilot must stop the flight. The flight data recorder must be checked to determine whether or not 57% N1 was exceeded and duration was exceeded. If N1 and duration exceeded the limits, the fan blades must be inspected. The airplane can be returned to service only after these steps have been done. The commenter requests that we change Table 1 of the AD to allow a 1-cycle extension before downloading the data from the flight data recorder. This extension would be allowed only if the flight crew stated that the powerback event was in the N1 range of 57% to 75% range for 2 seconds or less.
The FAA agrees. This request is based on a previously approved alternative method of compliance, for AD 2001-22-18. We have added a paragraph to this AD that allows a 1 flight-cycle extension for Tay 650-15 engines with an N1 alert system not installed, or installed but not operative, if a powerback event is in the N1 range of 57% to 75% N1 for 2 seconds or less. We have also added a reference to that paragraph in Table 1 of the AD.
One commenter states that according to Table 1 of the NPRM, if a nonpowerback reverse thrust event is performed with a Fokker Model F.28 Mark 0100 airplane that is not equipped with the N1 Alert System, and the N1 speed was above idle, then before the next flight, the data from the flight data recorder must be downloaded to determine whether the N1 limit and duration were exceeded, and if they were, the fan blades must be inspected before further flight. The commenter states that this conflicts with RRD Service Bulletin (SB) No. Tay 72-1447, which only requires that the inspection be done within 50 cycles of the suspect event, if it is confirmed that the N1 limit and duration were exceeded. The SB cycle allowance is only applicable if it can be determined that the engine does not already have an event during which the reverse thrust exceeded idle and has not had the 1,000 to 1,500 cycle follow-
The FAA agrees. The intent of the proposed AD is to follow the requirements of RRD SB No. Tay 72-1447, Revision 4, dated May 8, 2002. We have identified areas in Table 1 of the NPRM that need improvement. We have changed the wording in the fifth column of Table 1, item (1)(ii)(A), of this AD, to be less restrictive and to encompass the 50-cycle allowance specified in the SB, for Tay 650-15 engines.
We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47998, July 22, 2002), which governs the FAA's AD system. That regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. The material previously was included in each individual AD. Since the material is included in 14 CFR part 39, we will not include it in future AD actions.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.
For the reasons discussed above, I certify that this AD:
(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.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective December 18, 2003.
(b) This AD supersedes AD 2001-22-18.
(c) This AD applies to Rolls-Royce Deutschland Ltd & Co KG (RRD) (formerly Rolls-Royce plc) models Tay 650-15 turbofan engines with fan blades, part numbers (P/Ns) JR31911, JR31912, JR33865, JR33866, JR35120, or JR35121, installed in fan discs P/N JR31198A, and Tay 651-54 turbofan engines with fan blades P/Ns JR31911, JR31912, JR33865, or JR33866, installed in fan discs P/N JR34563A. These engines are installed on, but not limited to, Fokker Model F.28 Mark 0100, and Boeing 727-100 series airplanes modified in accordance with Supplemental Type Certificate (STC) SA8472SW (727-QF).
(d) This AD is prompted by updated prohibited ranges of engine operation and the introduction of an N1 Alert System in Fokker Model F.28 Mark 0100 airplanes with Tay 650-15 engines installed. The actions specified in this AD are intended to prevent fan blade failures, which can result in an uncontained engine failure, engine fire, and damage to the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) If an engine is operated inadvertently in reverse thrust within the prohibited ranges described in RRD Service Bulletin (SB) No. Tay 72-1447, Revision 4, dated May 8, 2002, paragraph 1.C., as applicable by engine model, then before further flight make an entry in the engine records that reflects that operation. If known, include the stabilized N1 speed in the engine records.
(g) Perform initial and repetitive ultrasonic inspections (UI) of fan blades each time an engine is operated inadvertently in reverse thrust within the prohibited ranges described in RRD SB No. Tay 72-1447, Revision 4, dated May 8, 2002, paragraph 1.C., as specified in the following Table 1:
(h) You may operate a Tay 650-15 engine that has an N1 alert system installed but not operative, or that does not have an N1 alert system installed, for 1 flight cycle before downloading the flight data recorder information as required in (1)(ii)(B) of Table 1 of this AD, if the flight crew determines that the operation in the prohibited speed range during a powerback event was 2 seconds or less.
(i) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR part 39.19.
(j) You must use Rolls-Royce Service Bulletin No. Tay 72-1447, Revision 4, dated May 8, 2002, to perform the inspections required by this AD. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You can get a copy from Rolls-Royce plc, Technical Publications Department, PO Box 31, Derby, England DE248BJ; telephone 44 1332 242424, fax 44 1332 249936. You can review copies at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(k) CAA airworthiness directives 008-10-97, dated October 31, 1997, and 001-12-97, dated December 19, 1997 also address the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA adopts a new airworthiness directive (AD) for all AeroSpace Technologies of Australia Pty Ltd. (ASTA) Models N22B and N24A airplanes. This AD requires you to visually inspect the ailerons for damage and replace if necessary; adjust the engine power levers aural warning microswitches; set flap extension and flap down operation limitations; and fabricate and install cockpit flap extension and flap down operation restriction placards. This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Australia. We are issuing this AD to prevent damage to the aileron due to airplane operation and pre-existing and undetected damage, which could result in failure of the aileron. Such failure could lead to reduced or loss of control of the airplane.
This AD becomes effective on December 23, 2003.
As of December 23, 2003, the Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation.
You may get the service information identified in this AD from Nomad Operations, Aerospace Support Division, Boeing Australia, PO Box 767, Brisbane, QLD 4000 Australia; telephone 61 7 3306 3366; facsimile 61 7 3306 3111.
You may view the AD docket at FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-CE-21-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. Office hours are 8 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
Ron Atmur, Aerospace Engineer, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone (562) 627-5224; facsimile (562) 627-5210.
The CASA lowered the operational limits of the affected airplanes in order to prevent damage from occurring. Additional reports of aileron flutter have been received even when operating within these lower approved limits.
As a precautionary measure, the CASA is further restricting flight operations.
We estimate the following costs to accomplish any necessary replacements that would be required based on the results of this inspection. We have no way of determining the number of airplanes that may need such repair/replacement:
We estimate the following costs to accomplish the modifications:
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. 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.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective on December 23, 2003.
(b) None.
(c)
(d) This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Australia. The actions specified in this AD are intended to prevent damage to the aileron due to airplane operation and pre-existing and undetected damage, which could result in failure of the aileron. Such failure could lead to reduced or loss of control of the airplane.
(e) To address this problem, you must accomplish the following:
(f) You may request a different method of compliance or a different compliance time for this AD by following the procedures in 14 CFR 39.13. Send your request to the Manager, Standards Office, Small Airplane Directorate, FAA. For information on any already approved alternative methods of compliance, contact Ron Atmur, Aerospace Engineer, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone (562) 627-5224; facsimile (562) 627-5210.
(g) You must do the actions required by this AD per Nomad Alert Service Bulletin ANMD-57-18, dated December 19, 2002. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may get a copy from Nomad Operations, Aerospace Support Division, Boeing Australia, PO Box 767, Brisbane, QLD 4000 Australia; telephone 61 7 3306 3366; facsimile 61 7 3306 3111. You may review copies at FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(h) Australian AD/GAF-N22/69, Amendment 4, dated February 27, 2003.
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the regulations for importing animals and animal products by adding Chile to the list of regions we recognize as free of classical swine fever (CSF). We are proposing this action at the request of the Government of Chile and after conducting a risk evaluation that indicates that Chile is free of this disease. We are also proposing to add Chile to a list of CSF-affected regions whose exports of live swine, pork, and pork products to the United States must meet certain certification requirements to ensure their freedom from CSF, and to amend those requirements to accommodate the addition of Chile to the list. These actions would relieve restrictions on the importation into the United States of pork, pork products, live swine, and swine semen from Chile while continuing to protect against the introduction of this disease into the United States.
We will consider all comments that we receive on or before January 12, 2004.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 03-009-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 03-009-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Dr. Charisse Cleare, Senior Staff Veterinarian, Regionalization Evaluation Services Staff, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231; (301) 734-4356.
The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation into the United States of specified animals and animal products in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease, African swine fever, classical swine fever (CSF), and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.9 of the regulations restricts the importation into the United States of pork and pork products from regions where CSF is known to exist. Section 94.10 of the regulations prohibits, with certain exceptions, the importation of swine that originate in or are shipped from or transit any region in which CSF is known to exist. Sections 94.9 and 94.10 provide that CSF exists in all regions of the world except for certain regions listed in those sections.
The Government of Chile requested that the Animal and Plant Health Inspection Service (APHIS) evaluate Chile's animal disease status with respect to CSF and provided information in support of that request in accordance with 9 CFR part 92, “Importation of Animals and Animal Products: Procedures for Requesting Recognition of Regions.” Using information submitted to us by the Government of Chile, as well as information gathered during a site visit by APHIS staff to Chile in 2002, we have reviewed and analyzed the animal health status of Chile with respect to CSF. Based on the information submitted to us and the information we gathered, we have concluded the following:
Animal disease control and eradication programs in Chile operate under the authority of the Agricultural and Livestock Service (Servicio Agricola y Ganadero, SAG). SAG is organized into three levels: A central branch in Santiago, the capital of Chile; the regional organization, distributed across each of Chile's 13 regions; and an operative level within each region.
Animal health activities in Chile are conducted under the authority of the Animal Sanitation Law (DFLRRA No. 16, 1963). This law provides adequate authority for import controls, movement controls within Chile, animal quarantine, requiring reporting of animal diseases, disease control measures, seizure and depopulation, cleaning and disinfection, Chilean Federal government access to animals and premises, and enforcement of Chilean Federal laws and regulations.
Within SAG, the Livestock Protection Department (Departamento de Proteccion Pecuaria, DPP) manages animal health programs, including border port control, animal health laboratories, and animal quarantine centers. The DPP director serves as the chief veterinary officer of SAG.
Chile is divided from north to south into 13 regions identified as Regions I to XII and the Metropolitan Region (Region RM), which is located between Regions V and VI and includes Santiago. Regional directors are responsible for delivery of SAG programs within their regions. Each regional livestock veterinarian-in-charge reports to the Ministry of Agriculture's regional director and to the DPP headquarters. Animal health functions performed at
PABCO is a voluntary program managed by the Livestock Projects Sub-Department of DPP. However, only animals and animal products from livestock production facilities that operate under PABCO and comply with program standards are certified for export and interregional trade. The program is supervised by regional and section veterinary medical officers (VMOs) and is carried out by accredited veterinarians on the farms. The accredited veterinarians maintain records on animal production and health for each farm.
Slaughterhouses and processing plants used before export must also be approved and must operate under animal and public health inspection programs for diseases and residue monitoring. Sanitary controls (ante- and post-mortem) in slaughterhouses are directly supervised by the Ministry of Health. DPP section personnel working alongside Ministry of Health veterinarians manage quality controls for animal health and public health. Ministry of Health personnel are required to report any suspicious case of disease to the SAG section VMO, who must investigate within 24 hours of such a report.
Our evaluation indicated that animal health officials in Chile have the legal authority to enforce their Federal regulations regarding CSF and that the necessary veterinary infrastructure is in place to carry out CSF surveillance and control activities.
The two most recent diagnoses of CSF in Chile occurred in May 1995 and July 1996. One of the premises that was affected in the May 1995 outbreak was the only premises found to be affected in the July 1996 outbreak. In the outbreaks, the affected premises were family farm operations that raised swine for self-consumption. All of the premises were located more than 1,000 kilometers from commercial swine production areas.
In 1995, SAG instituted sanitary controls to address the outbreak, including quarantine of the premises, slaughter of affected swine, ring vaccination of the remainder of each herd, and surveillance of the premises until November 1995. In response to the 1996 outbreak, SAG instituted quarantine and depopulation of all the swine, disinfection, and surveillance of the premises until December 1996.
In 1998, Chile conducted an enzyme-linked immunosorbent assay (ELISA) survey of 2,551 Chilean fattener swine for CSF and obtained negative results. The swine surveyed represented 7 of the 13 regions. The statistical plan considered a prevalence of 0.5 percent with a confidence level of 99 percent. From 2000 to 2001, ELISA testing was performed on swine from 321 family farms and from all 13 regions. The number of samples totaled 1,705. There was one positive result from an aged sow with no CSF clinical symptoms. The sow was from a previously affected area in Region II. This positive result was due to previous vaccination, as discussed below. For 2002, surveillance was performed using ELISA and immunofluorescence methods of detection. Tests were ordered due to monitoring activities and disease surveillance. All results were negative. Chile has also performed CSF surveillance at slaughterhouses nationwide.
CSF has never been detected in wild boar in Chile. Although the country does not have a surveillance program for wild boar, Chile has identified breeding operations whose swine originated from wild boar. Such operations are under official monitoring and control by the Department of Natural Resources (not SAG). Chile is conducting surveillance at these facilities because the animals were originally wild, even though they may have been in captivity for several generations.
By December 2002, SAG had tested 127 blood samples that were collected from 10 breeding operations with swine that originated from wild boar. Samples representing a 25 percent sampling (10 of 40 herds) were tested for CSF using ELISA and yielded negative results. However, as of December 2002, sampling had not been performed on free-ranging wild boar. SAG is designing a study to survey domestic swine that are located closest to the foothills of the areas where the wild boars reside.
There are few commercial swine operations in those regions of Chile where concentrations of wild boars are present; rather, family farms are usually prevalent in such regions. There is no evidence of CSF in the wild boar population and no evidence that domestic swine have contracted CSF from wild boars. Even if CSF was present in the wild boar population, it is unlikely that CSF would be transmitted from wild boar to commercial swine facilities because of the biosecurity measures in place at those facilities. In addition, the mountainous habitat of the wild boars and the areas of Chile devoted to domestic swine production are separated by forests, which the wild boars do not enter because there is no food for them in the forests.
The official diagnostic laboratory of SAG in Santiago does not isolate the causative agent for CSF because the biosecurity level of the laboratory is not sufficient to allow use of live CSF virus, which is necessary to confirm a diagnosis of CSF. Chile uses the Centro de Investigación en Sanidad Animal—Instituto Nacional de Investigación y Tecnologia Agraría y Alimentaria (Animal Health Research Center—National Institute for Food and Agriculture Technology and Research), which is located in Spain, as its reference laboratory when the presence of CSF virus must be confirmed. The turnaround time for results to be reported from Spain is 2 weeks.
In addition, SAG's official diagnostic laboratory accumulates samples to be tested for CSF with ELISA until it has 100 samples—enough to run an entire ELISA plate. As a result, the laboratory does not perform this test on samples as soon as they arrive.
APHIS does not consider the limitations of the laboratory a major risk factor because control procedures that would halt the spread of a possible CSF outbreak are in place. Chile has a document entitled “Contingency Manual for Classical Swine Fever” that prescribes response procedures when CSF is detected. In the event of a suspect CSF case, the official veterinarian of SAG would place the premises and animals under a prediagnostic quarantine until diagnostic results from SAG's official diagnostic laboratory are received. During the prediagnostic quarantine, necropsies would be performed and blood and organ samples would be taken for testing. SAG officials stated that its VMOs can make a preliminary diagnosis of CSF based on clinical evidence within 24 hours and that SAG has the legal authority to impose a quarantine based on this diagnosis, which provides sufficient precautions to contain the spread of CSF if it is present. The prediagnostic quarantine can prohibit the movement of susceptible animals from the premises to other farms, fairs, or slaughterhouses, except those with a high biosecurity level. If there are no clinical signs of
The prediagnostic quarantine remains in place until the results of the preliminary diagnostic tests from SAG's official diagnostic laboratory are available. Chile indicates that the most probable time to detect clinical signs compatible with CSF, deliver samples to the domestic diagnostic laboratory, and confirm the clinical diagnosis with the preliminary tests would be 5 days, although this process could be accomplished in as little as 3 days. Samples are delivered to the laboratory on the same day they are collected from all areas of Chile. Trading partners would be alerted immediately after confirmation of CSF by SAG.
Vaccination for CSF has been prohibited in Chile since October 6, 1997. On certain farms, there are still some vaccinated sows that show positive antibody titers and false-positive results during surveillance activities.
APHIS considers Peru, Bolivia, and Argentina to be affected with CSF. Peru had outbreaks of CSF in 2002, and continued to have outbreaks in 2003. The last CSF outbreaks in Argentina and Bolivia occurred in 1999; no subsequent cases of CSF had been identified in Argentina or Bolivia by the Office International des Epizooties (OIE) as of August 2003.
Chile is separated from Peru by an area of desert and from Bolivia and Argentina by the Andes Mountains. On the west, Chile is bounded by the Pacific Ocean.
Chile allows the importation of processed meat products, including raw processed or fresh raw delicatessen products, raw matured or acidified processed products, and long cure/maturation products. Long cure/maturation products are defined by SAG as hams that undergo salt curing and maturation for at least 8 months. Chile also imports processed cooked meat products and cooked sausages. The countries from which these products are exported to Chile must be officially pronounced free of African swine fever (ASF), bovine fever, CSF, foot-and-mouth disease (FMD), swine vesicular disease (SVD), and Teschen's disease by the OIE, as stated in SAG's resolution regarding the importation of these products. Countries that are not recognized as free of the listed diseases as a whole but that contain regions recognized by Chile as free of the listed diseases may only export products of long cure/maturation and processed cooked meat or cooked sausages. For these countries, the animals from which the meat products are derived must come from regions free of the diseases, as evaluated and recognized by SAG. In addition, the abattoir and processing plants in which the swine from which these products are derived are slaughtered and processed must be located in regions free of these diseases. Countries that cannot fulfill the listed requirements may only export processed cooked meat or cooked sausages to Chile. All of the above products must be accompanied by an official health certificate issued by the animal health protection organization of the government of the country of origin.
As noted, long cure/maturation products must undergo salt curing and maturation for at least 8 months to be eligible for importation into Chile. These products include Serrano ham, Spanish-style ham, Iberian ham, Parma ham, and others. Also, as noted above, these products may be imported into Chile from regions recognized by Chile as free of the listed diseases, even if the country in which the disease-free region is located is not recognized as disease-free as a whole by Chile, if the requirements previously stated are met.
However, Chile's requirement for the length of curing and maturation is not as long as APHIS” for some of these products. At this time, APHIS considers Spain and certain regions in Italy to be affected with CSF. As a result, Iberian and Italian hams from affected regions must meet the requirements in § 94.17 to be eligible for importation into the United States. Section 94.17 requires, among other things, that Italian-type hams intended for export to the United States from CSF-affected regions be placed in a chamber for curing for a minimum of 314 days—substantially longer than Chile's 8-month requirement for Italian and Iberian hams. Iberian hams intended for export to the United States from CSF-affected regions must, under § 94.17, undergo a 365-day minimum curing process. The curing periods required by APHIS to prevent the introduction of CSF into the United States by long cure/maturation products from regions considered by the United States to be affected with CSF are thus longer than those required by Chile for the importation into Chile of such products from regions in a country considered by Chile to be affected with CSF. If Chile were to import long cure/maturation products from regions considered by the United States to be affected with CSF and then export those products to the United States, there would be a risk that CSF could be introduced into the United States via those products.
In addition to the requirements for long cure/maturation products, Chile has cooking requirements for processed cooked meat and cooked sausages intended for importation into Chile from regions recognized by Chile as free of the listed diseases if the country in which the disease-free region is located is not recognized as disease-free as a whole by Chile. The required cooking temperature is 68 oC for 30 minutes. With regard to the importation of these products into the United States, however, § 94.9 prescribes that pork and pork products from regions where CSF exists may be imported into the United States only if all bones were completely removed prior to cooking and the pork or pork product was heated by some method other than a flash-heating method to an internal temperature of 69 oC throughout. Thus, if Chile were to import processed cooked meat and cooked sausages from regions the United States considers to be affected with CSF and then export those products to the United States, there would be a risk that CSF could be introduced into the United States via those products.
Accordingly, we are proposing to require that Chilean pork and pork products imported into the United States be accompanied by certification regarding their origin. The certification would have to identify the exporting region and the region of origin of the pork or pork products as a region designated in §§ 94.9 and 94.10 as free of CSF at the time the pork or pork products were in the region. The certification would also have to state that:
• The pork or pork products were derived from swine that were born and raised in a region designated in §§ 94.9 and 94.10 as free of CSF and were slaughtered in such a region at a federally inspected slaughter plant that is under the direct supervision of a full-time salaried veterinarian of the national government of that region and that is eligible to have its products imported into the United States under the Federal Meat Inspection Act (21
• The pork or pork products were derived from swine that have not lived in a region that is designated in § 94.9 or § 94.10 as affected with CSF;
• The pork or pork products have never been commingled with pork or pork products that have been in a region that is designated in §§ 94.9 and 94.10 as affected with CSF;
• The pork or pork products have not transited a region designated in §§ 94.9 and 94.10 as affected with CSF unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination; and
• If processed, the pork or pork product was processed in a region designated in §§ 94.9 and 94.10 as free of CSF in a federally inspected processing plant that is under the direct supervision of a full-time salaried veterinarian of the national government of that region.
Chile imports live swine primarily for use as breeding animals. Reports provided by the Government of Chile showed that live swine were imported in 1998 from France; in 1999 from Belgium and the United States; in 2000 from Canada, France, and the United States; and in 2001 until November 2002 from Canada. The number of shipments per year has ranged from 12 to 177.
Swine for importation into Chile must originate from regions pronounced free of ASF, bovine fever, CSF, SVD, Teschen's disease, and vesicular stomatitis by the OIE and must also be recognized by Chile as free of these diseases, as stated in SAG's resolution regarding the importation of live swine for reproduction. The region of origin must also be pronounced free of FMD without vaccination by OIE, as stated in SAG's resolution, and also be recognized as such by Chile. The farm of origin must, among other things, be free of brucellosis, tuberculosis, transmissible gastroenteritis, corona respiratory virus, swine epidemic diarrhea, and pseudorabies without vaccination. In addition, the animals must be accompanied by an official health certificate. Similar controls exist for the importation of porcine semen.
Live swine imported into Chile enter privately owned quarantine facilities. When operating, these facilities are under the supervision of the SAG section VMO. Private quarantine facilities must be authorized by SAG prior to use and must be inspected prior to each use. Site visit team members confirmed that the facilities consistently employ effective biological safeguards.
However, Chile has imported live swine from France. At this time, France is not recognized by the United States as CSF-free. Accordingly, we are proposing that swine exported from Chile must be accompanied by the following certification regarding the origin of the swine:
• The swine have not lived in a region designated in §§ 94.9 and 94.10 as affected with CSF;
• The swine have never been commingled with swine that have been in a region designated in §§ 94.9 and 94.10 as affected with CSF; and
• The swine have not transited a region designated in §§ 94.9 and 94.10 as affected with CSF unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination.
All physical inspection of meat destined for export from Chile takes place at export slaughter facilities. A public health veterinarian and a SAG veterinarian are present. The SAG veterinarian watches the meat being loaded and crated for export. Official SAG seals are placed on the crates by the SAG veterinarian. Shipments are also accompanied by sanitary health certificates. As noted earlier, export slaughter facilities only accept swine from farms participating in the PABCO program. Family farm swine are taken to municipal slaughter facilities or are slaughtered at the farm. Meat from swine slaughtered at these municipal facilities is for national consumption and not for export.
Swine for export are inspected by the SAG section VMO at the farm of origin when they are loaded on the truck. They cannot be inspected at the airport because there is not a containment area.
There are 76 border control points in Chile: 13 airports, 24 seaports, and 39 land crossings.
Since 2001, all live swine imported into Chile have entered through the Santiago airport. Other commercial animal or animal product shipments entering the Santiago airport include semen, horses, vaccines, embryos, chicks, and fertile eggs. Almost no meat arrives through the Santiago airport.
Passengers arriving on commercial flights are asked to declare whether they are carrying plant or animal products. Amnesty bins are available throughout the airport to allow passengers to dispose of prohibited materials before they enter Customs. When fresh fruit or meat that is not processed according to specifications is discovered in the baggage of passengers arriving from areas that SAG considers to be high risk, the fruit or meat is confiscated and destroyed. SAG has two beagles in Santiago that are used to inspect baggage from high-risk commercial flights. At the time of the site visit, Santiago was the only international airport in Chile that used the beagles.
In addition to using beagles, passenger luggage from high-risk flights entering the Santiago airport is x-rayed before leaving the airport, using x-ray machines specifically designed to detect organic material. Passenger luggage is opened for inspection if agricultural products are suspected to be present. Not every airport has x-ray machines; at other airports, physical inspections of high-risk luggage are performed instead. (SAG considers fruits from Bolivia, Colombia, and Peru and fresh or inadequately processed meat from Argentina, Bolivia, the European Union, and Peru to be high-risk commodities.)
Food waste containing animal products from commercial flights is collected and heat treated until any CSF virus that might be present would be destroyed. This function is carried out by commercial enterprises. In Santiago, SAG representatives meet private planes and perform inspections.
Passenger traffic also arrives in Chile on cruise ships. Passengers are advised not to disembark with agricultural products. SAG operates a quarantine area near the ships to process disembarking passengers and inspect their luggage. Fruit or meat products that are confiscated are destroyed by SAG. Food wastes are prohibited from being offloaded from the ship and must be disposed of in the sea at least 12 miles from shore. Ships carrying fresh fruit are prohibited from discharging garbage at port.
At land border crossings, every car, bus, and truck is stopped. All cars are searched thoroughly by checking the passenger compartment, the trunk, under the seats, and the glove compartment. All luggage is opened and inspected by Customs and SAG personnel. All fruits, vegetables, meat, and honey found in cars and buses are confiscated and destroyed. Animals (
Empty live-haul trucks, which are used to carry livestock, are allowed to move from Argentina and other potentially CSF-affected regions into Chile without thorough cleaning and
This practice concerns us in view of the role of contaminated live-haul trucks in the serious CSF outbreaks that occurred in the Netherlands in 1997-1998. This severe outbreak was initiated by an empty contaminated live-haul truck that transited from a CSF-affected area in Germany. In fact, the truck had been cleaned and disinfected, but the procedure was not adequate. Without adequate cleaning and disinfection, trucks could introduce CSF from affected regions.
Therefore, to address the risk presented by empty live-haul trucks that enter Chile from Argentina and other potentially CSF-affected regions without thorough cleaning and disinfection, we are proposing that any live swine exported to the United States from Chile would have to be accompanied by certification that the conveyance or materials used to transport the swine, if previously used for transporting swine, had first been cleaned and disinfected in accordance with 9 CFR 93.502. This certification requirement would be in addition to the certifications regarding the origin of live swine discussed previously under the heading “Import Controls.”
Cargo from outside Chile is allowed to transit Chile to seaports such as Valparaiso or San Antonio for shipment to other countries. Currently, however, in-transit cargo must comply with all Chilean regulations, even if the ultimate destination is a different country. The team was informed that this policy may change in the future to accommodate in-transit shipping to the port of Valparaiso. This would require the use of in-bond sanitary and phytosanitary safeguarding procedures.
In 1997, Chile had more than 1.7 million swine held by 105,665 swine producers. There were 289 commercial premises, which held 69 percent of all swine in Chile. Commercial swine populations are concentrated in Regions RM and VI. Family farm areas are mostly located in Regions VIII, IX, and X. At the time of the site visit, there were 100 commercial swine operations in Chile, many with multiple premises. Agrosuper is one of the largest commercial operations. While Agrosuper imports its own swine, most facilities purchase any imported swine they use from the Pig Improvement Company (PIC) in Chile. PIC has purchased swine from Belgium, France, and the United States. The number of small family farms has dramatically decreased in the last 5 years, due mostly to companies purchasing the land to plant fruit trees. Another factor in this decline is a law requiring that all swine be slaughtered at a slaughterhouse, rather than on the premises. The owners would have to pay for transportation to the slaughterhouse and for the slaughter of the swine. In addition, swine producers on family farms can no longer simply collect food waste to feed to the swine; processed feed or other feed must be purchased instead, increasing the cost of maintaining the swine.
There are currently no detailed data on the distribution of the population of wild boar known as javelins (
Because all swine operations that wish to participate in the interregional and international export markets must operate under the PABCO quality assurance program, the level of compliance with the national government's efforts to maintain Chile's CSF-free status is high.
CSF has been effectively controlled in and eradicated from Chile in the past and is not known to exist in Chile at this time. The Government of Chile maintains a surveillance system capable of detecting CSF should the disease be reintroduced to the country. The Government of Chile has laws, policies, and infrastructure to detect, respond to, and eliminate any occurrence of CSF.
These findings are described in further detail in a qualitative evaluation that may be obtained from the person listed under
Therefore, we are proposing to recognize Chile as free of CSF and to add it to the lists in §§ 94.9 and 94.10 of regions where CSF is not known to exist. We are also proposing to revise § 94.24, which currently contains additional CSF-related certification requirements for four Mexican States that we consider to be free of CSF. Because the proposed certification requirements for Chile described previously in this document are essentially the same as the certification requirements for the four Mexican States presently named in § 94.24, apart from specific references to the national government of the region in question, we are proposing to add a list of regions to which the certification requirements in § 94.24 apply and to amend the certification requirements so that they refer generically to the national government of the region of export of the swine, pork, or pork products.
This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
Under the regulations in 9 CFR part 94, the importation into the United States of live swine, pork, pork products, and swine semen that originates in or transits any region where CSF exists is generally prohibited, except for certain pork products processed in accordance with the regulations. Furthermore, even if a region is considered free of CSF, the importation of pork and pork products from that region may be restricted, depending on the region's proximity to or trading relationships with countries or regions where CSF exists. CSF is a transmissible animal disease with potentially serious consequences for international trade of animals and animal products.
The Agriculture and Livestock Service of the Government of Chile has asked APHIS to evaluate Chile's CSF status. APHIS conducted a site visit in Chile and, using data from this site visit and
As described above, in 1997, Chile had 105,665 swine farms on which 1.7 million swine were raised. There were 289 commercial premises, which represented 69 percent of Chile's hog facilities.
Frozen and dried pork accounts for 87 percent of all Chilean exports of pork and pork products; the remaining 13 percent consists of either fresh or chilled pork. In 2000, Chile exported 33,900 metric tons of pork. Of this, 30.1 metric tons was cooked pork, which was exported either frozen or dried (table 2). That same year, the United States imported 368,700 metric tons of pork, more than 10 times the total of Chile's pork exports.
On average, between 1998 and 2001, Chile's global exports of live swine amounted to approximately 0.3 percent of the volume of U.S. imports of live swine (tables 3 and 4). Specifically, Chile's global exports of live swine were 0.28 percent of the volume of U.S. imports of live swine in 1998, 0.33 percent in 1999, 0.39 percent in 2000, and 0.32 percent in 2001. Between 1998 and 2001, Chile's exports of pork and pork products to the world was, on average, equivalent to 9 percent of U.S. imports of pork and pork products.
The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small entities. Domestic swine producers and processors of pork and pork products, as well as brokers, agents and others in the United States who would become involved in any future importation and sale of swine, pork, and pork products from Chile, are most likely to be directly affected by the proposed change to Chile's CSF status. The number and size of the entities that might become involved in any future importation and sale of swine (or products) from Chile is unknown. However, it is reasonable to assume that most would be small, based on the Small Business Administration's standards, since most businesses are classified as small under those standards.
From an economic standpoint, the proposed change in Chile's CSF status should have little or no effect on domestic entities in the United States. This is because exports from Chile in quantities sufficient to have a significant effect on the U.S. market are unlikely. We do not anticipate that any U.S. entities, small or otherwise, will experience any significant economic effects as a result of this action.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This proposed rule would recognize Chile as free of CSF and add certification requirements for live swine, pork, and pork products imported into the United States from Chile to ensure their freedom from CSF.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS” Information Collection Coordinator, at (301) 734-7477.
Animal diseases, Imports, Livestock, Meat and meat products, Milk, Poultry and poultry products, Reporting and recordkeeping requirements.
Accordingly, we are proposing to amend 9 CFR part 94 as follows:
1. The authority citation for part 94 would continue to read as follows:
7 U.S.C. 450, 7701-7772, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and 371.4.
2. In § 94.9, paragraph (a) would be amended by adding the word “Chile;” after the word “Canada;”.
3. In § 94.10, paragraph (a) would be amended by adding the word “Chile;” after the word “Canada;”.
4. Section 94.24 would be revised to read as follows.
The regions listed in paragraph (a) of this section are recognized as free of classical swine fever (CSF) in §§ 94.9(a) and 94.10(a) but supplement their pork supplies with fresh (chilled or frozen) pork imported from regions considered to be affected by CSF, supplement their pork supplies with pork from CSF-affected regions that is not processed in accordance with the requirements of this part, share a common land border with CSF-affected regions, or import live swine from CSF-affected regions under conditions less restrictive than would be acceptable for importation into the United States. Thus, there exists a possibility that live swine, pork, or pork products from the CSF-free regions listed in paragraph (a) of this section may be commingled with live swine, pork, or pork products from CSF-affected regions, resulting in a risk of CSF introduction into the United States. Therefore, live swine, pork, or pork products and shipstores, airplane meals, and baggage containing pork or pork products, other than those articles regulated under parts 95 or 96 of this chapter, may not be imported into the United States from a region listed in paragraph (a) of this section unless the requirements in this section, in addition to other applicable requirements of part 93 of this chapter and part 327 of this title, are met.
(a) Regions subject to the requirements of this section: Chile and the Mexican States of Baja California, Baja California Sur, Chihuahua, and Sinaloa.
(b)
(1) The swine have not lived in a region designated in §§ 94.9 and 94.10 as affected with CSF.
(2) The swine have never been commingled with swine that have been in a region that is designated in §§ 94.9 and 94.10 as affected with CSF;
(3) The swine have not transited a region designated in §§ 94.9 and 94.10 as affected with CSF unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination; and
(4) The conveyances or materials used in transporting the swine, if previously used for transporting swine, have been cleaned and disinfected in accordance with the requirements of § 93.502 of this chapter.
(c)
(1) The pork or pork products were derived from swine that were born and raised in a region designated in §§ 94.9 and 94.10 as free of CSF and were slaughtered in such a region at a federally inspected slaughter plant that is under the direct supervision of a full-time salaried veterinarian of the national government of that region and that is eligible to have its products imported into the United States under the Federal Meat Inspection Act (21 U.S.C. 601
(2) The pork or pork products were derived from swine that have not lived in a region designated in §§ 94.9 and 94.10 as affected with CSF;
(3) The pork or pork products have never been commingled with pork or pork products that have been in a region that is designated in §§ 94.9 and 94.10 as affected with CSF;
(4) The pork or pork products have not transited through a region designated in §§ 94.9 and 94.10 as affected with CSF unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination; and
(5) If processed, the pork or pork products were processed in a region designated in §§ 94.9 and 94.10 as free of CSF in a federally inspected processing plant that is under the direct supervision of a full-time salaried veterinary official of the national
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Hamburger Flugzeugbau G.m.b.H. Model HFB 320 HANSA airplanes. This proposal would require replacement of the elevator trim control cable assemblies with new assemblies. This action is necessary to prevent loss of elevator trim and possible loss of rudder and/or elevator function due to stress-corrosion cracking of certain cable terminals. This action is intended to address the identified unsafe condition.
Comments must be received by December 15, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-185-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 Airbus Deutschland G.m.b.H., Customer Service HFB 320, Mr. Dieter Mewes, Postfach 95 01 09, D-21111 Hamburg, Germany. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer; International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
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:
•
• 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 2002-NM-185-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. 2002-NM-185-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified the FAA that an unsafe condition may exist on certain Hamburger Flugzeugbau G.m.b.H. Model HFB 320 HANSA airplanes. The LBA advises that there is the possibility of stress-corrosion cracking on MS 21260 flight control cable terminals. This condition, if not corrected, could result in loss of elevator trim and possible loss of rudder and/or elevator function.
The manufacturer has issued HFB 320 Hansa Service Bulletin 27-75, dated May 31, 2002, which describes procedures for replacement of the elevator trim control cable assemblies with new assemblies. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The LBA classified this service bulletin as mandatory and issued LBA airworthiness directive 2002-157, dated July 11, 2002, in order to assure the continued airworthiness of these airplanes in Germany.
This airplane model is manufactured in Germany and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.
The FAA estimates that 6 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 20 work hours to accomplish the proposed replacement, and that the average labor rate is $65 per work hour. Required parts would cost approximately $500 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $10,800, or $1,800 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has accomplished any of the proposed requirements of this AD action, and that no operators 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:
To prevent loss of elevator trim and possible loss of rudder and/or elevator function due to stress-corrosion cracking of certain cable terminals, accomplish the following:
(a) Within 30 flight cycles or 2 months from the effective date of this AD, whichever occurs first, replace the elevator trim control cable assemblies with new assemblies in accordance with the Accomplishment Instructions of HFB 320 Hansa Service Bulletin 27-75, dated May 31, 2002.
(b) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in German airworthiness directive 2002-157, dated May 31, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Learjet Model 31, 31A, 35, 35A (C-21A), 36, and 36A airplanes. This proposal would require modification of the drag angles of the fuselage and engine pylons to gain access to the shear webs of the forward engine beams; repetitive inspections of the shear webs of the forward engine beams for cracks; follow-on actions; and modification/repair of the shear webs of the forward engine beams, as necessary, which would terminate the repetitive inspections. This action is necessary to prevent significant structural damage to the engine pylons, possible separation of the engines from the fuselage, and consequent reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by December 29, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-366-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 Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas.
Steven Litke, Aerospace Engineer, Airframe Branch, ACE-118W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4127; fax (316) 946-4107.
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-366-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-366-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports that cracks in the shear webs of the forward engine beams were discovered on certain Learjet Model 31, 31A, 35, 35A (C-21A), 36, and 36A airplanes, which experienced damage while landing. Further investigation revealed that the cracks were caused by repetitive loading of the engine beams during airplane operation (
We have reviewed and approved Bombardier Service Bulletin 31-51-2 (for Model 31 airplanes) and Bombardier Service Bulletin 35/36-51-3 (for Model 35 and 36 airplanes); both dated February 1, 2001. These service bulletins include procedures for modifying the drag angles of the fuselage and engine pylons to gain access to the shear webs of the forward engine beams. The modification includes including removing the upper forward drag angles, trimming the slots in the fuselage and pylon skins, creating slots in the drag angles to match slots in the fuselage and pylon skins, grit blasting the radius of the engine shear webs, re-identifying the drag angles, installing new nutplates on the pylon skins, re-installing the upper forward drag angles, fillet sealing the drag angles to the fuselage and engine pylon skins, installing covers on the drag angles, fay surfacing the covers to the drag angles, and fillet sealing the cover edges.
The service bulletins also include procedures for repetitive detailed inspections (using a probe) and general visual inspections of the shear webs of the forward engine beams for cracking. The probe inspection includes grit blasting areas of the shear webs of the forward engine beams, calibrating a micro-ohmmeter, attaching a test probe to the micro-ohmmeter, applying the test probe to the base of the forward and aft shear webs, applying the test probe to the radius of the forward and aft shear webs, inspecting the forward and aft shear webs for visible cracks, applying primer to the grit blasted areas of the shear webs of the forward engine beam, and determining if the resistance values of the probe inspection are within the acceptable limits specified in the service bulletins.
We have also reviewed and approved Bombardier Service Bulletin 31-51-3, Revision 1 (for Model 31 airplanes) and Bombardier Service Bulletin 35/36-51-4, Revision 1 (for Model 35 and 36 airplanes), both dated August 2, 2001. These service bulletins describe procedures for modifying/repairing the shear webs of the forward engine beams. The modification/repair procedures include trimming the upper and lower flanges of frame 24, measuring the lengths and dimensions of existing cracks in the shear webs of the forward engine beams and reporting the results to the manufacturer, installing the appropriate parts kits, fabricating certain parts, and installing new hardware and a jumper on the conduit located between stringers 6 and 7 on the left side of the airplane. Modification/repair of the shear webs eliminates the need for the repetitive detailed inspections (using a probe) and general visual inspections of the shear webs of the forward engine beams for cracking.
Accomplishment of the actions specified in these 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 under “Differences Between the Proposed Rule and the Service Bulletins.”
Operators should note that, while it is not the FAA's normal policy to allow flight with known cracks, this proposed AD does permit further flight with cracking within certain limits. If the crack size limits are strictly observed and if repetitive inspections are performed at the required intervals, cracks that grow beyond the limits will be detected, and corrective action taken, before they can grow to a size that would create an unacceptable risk of structural failure.
This proposed AD allows flight with crack openings less than 0.03 inch, provided that (1) the crack is not part of multi-site damage, (2) the crack growth is easily detectable, and (3) the established inspection procedures would detect cracked structure at intervals that would permit repairs to be accomplished before the structure's strength falls below ultimate load carrying capability.
Although the service bulletins either do not reference repair instructions or specify that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions per a method approved by the FAA.
The service bulletins also specify to submit information to the manufacturer; however, this proposed AD does not include such a requirement.
The follow-on actions and compliance times for the general visual inspection required by paragraph (a) of this AD are not clearly stated in the service bulletins. We have specified the compliance time and follow-on actions in paragraph (d) of this proposed AD.
There are approximately 893 airplanes of the affected design in the worldwide fleet. The FAA estimates that 673 airplanes of U.S. registry would be affected by this proposed AD.
It would take between 2 and 3 work hours per airplane to accomplish the proposed modification, at an average labor rate of $65 per work hour. Required parts would cost approximately $243 per airplane. Based on these figures, the cost impact of the proposed modification on U.S. operators is estimated to be between $251,029 and $294,774, or between $373 and $438 per airplane.
We estimate that it would take 3 work hours to perform the proposed inspection, and that the average labor rate is $65 per work hour. Based on this figure, the cost impact of the proposed inspections on U.S. operators is estimated to be $131,235, or $195 per airplane, per inspection cycle.
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 manufacturer may cover the cost of replacement parts associated with this proposed AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this proposed AD. As a result, the costs attributable to the proposed AD may be less than stated above.
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:
To prevent significant structural damage to the engine pylons, possible separation of the engines from the fuselage, and consequent reduced controllability of the airplane, accomplish the following:
(a) At the later of the times specified in paragraphs (a)(1) and (a)(2) of this AD: Do a detailed inspection (using a probe) and a general visual inspection of the shear webs of the forward engine beams (including modification of the drag angles) for cracking in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 31-51-2 (for Model 31 airplanes) or 35/36-51-3 (for Model 35 and 36 airplanes), both dated February 1, 2001; as applicable.
(1) Prior to the accumulation of 3,000 total flight hours; or
(2) Within 1,200 flight hours or 1 year after the effective date of this AD, whichever occurs first.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(b) Following the detailed probe inspection required by paragraph (a) of this AD, do the follow-on actions specified in paragraphs (b)(1), (b)(2), or (b)(3) of this AD, as
(1) If the resistance measured during the inspection is less than 0.110 milliohm: Repeat the inspections required by paragraph (a) of this AD thereafter at intervals not to exceed 1,200 flight hours.
(2) If the resistance measured during the inspection is 0.110 milliohm or more, but less than 0.150 milliohm: Within the next 1,200 flight hours, repair and modify the forward engine beam shear web in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 31-51-3, Revision 1 (for Model 31 airplanes) or 35/36-51-4, Revision 1 (for Model 35 and 36 airplanes), both dated August 2, 2001; as applicable.
(3) If the resistance measured during the inspection is 0.150 milliohm or more: Before further flight, repair and modify the forward engine beam shear web in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 31-51-3, Revision 1, or 35/36-51-4, Revision 1; as applicable.
(c) Following the general visual inspection required by paragraph (a) of this AD, do all of the applicable follow-on actions at the times specified in the Accomplishment Instructions of Bombardier Service Bulletin 31-51-2 or 35/36-51-3, both dated February 1, 2001; as applicable; except as specified in paragraph (d) of this AD.
(d) If any crack opening is found that is more than 0.03 inch during the general visual inspection required by paragraph (a) of this AD: Before further flight, do the actions specified in paragraphs 2.C.(16)(a) and 2.C.(16)(b) of Bombardier Service Bulletin 31-51-2 or 35/36-51-3, both dated February 1, 2001; as applicable; repair per a method approved by the Manager, Wichita Aircraft Certification Office (ACO), FAA; and do the terminating action specified in paragraph (e) of this AD.
(e) Modification of the shear webs by accomplishing all of the actions specified in the Accomplishment Instructions of Bombardier Service Bulletin 31-51-3, Revision 1, or 35/36-51-4, Revision 1, both dated August 2, 2001; as applicable; terminates the initial inspections required by paragraph (a) and the repetitive inspections required by paragraph (b)(1) of this AD.
(f) Where any service bulletin identified in this AD specifies that the manufacturer may be contacted for disposition of certain repair conditions, repair per a method approved by the Manager, Wichita ACO, FAA.
(g) Although the service bulletins identified in this AD specify to submit information to the manufacturer, this AD does not include such a requirement.
(h) In accordance with 14 CFR 39.19, the Manager, Wichita ACO, is authorized to approve alternative methods of compliance for this AD.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Dassault Model Falcon 2000 and 900EX, and Dassault Model Mystere-Falcon 900 series airplanes. This proposal would require measuring the paint thickness on the upper and lower surfaces of the left and right sides of the horizontal stabilizer, performing corrective actions if necessary, and installing maintenance caution placards on the upper surface of the left and right sides of the horizontal stabilizer. This action is necessary to prevent structural damage to the horizontal stabilizer after a direct lightning strike, which could result in reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by December 15, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-231-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 Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1137; fax (425) 227-1149.
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
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. 2002-NM-231-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Dassault Model Falcon 2000 and 900EX, and Dassault Model Mystere-Falcon 900 series airplanes. The DGAC advises that, during lightning testing on a composite horizontal stabilizer, it was discovered that excessive paint thickness has a detrimental effect on the lightning protection of the stabilizer structure. Such paint thickness impairs lightning propagation, which may lead to significant structural damage to the stabilizer after a direct lightning strike, and consequent reduced controllability of the airplane.
Dassault has issued Service Bulletins F900-291 (for Model Mystere-Falcon 900 series airplanes), F900EX-155 (for Model Falcon 900EX series airplanes), and F2000-234 (for Model Falcon 2000 series airplanes); all dated February 20, 2002. These service bulletins describe procedures for measuring the paint thickness on the upper and lower surfaces of the left and right sides of the horizontal stabilizer, and corrective actions if necessary. The procedures for determining the paint thickness include spot-sanding three different locations on the upper and lower surfaces of the left and right sides of the horizontal stabilizer, and using a dial indicator (or other equivalent means) to measure the thickness of the removed paint. The corrective actions include sanding and repainting areas where the paint is thicker than the limits specified in the applicable service bulletin. The service bulletins also describe procedures for installing maintenance caution placards on the upper surface of the left and right sides of the horizontal stabilizer.
Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The DGAC classified these service bulletins as mandatory and issued French airworthiness directive 2002-089(B), dated March 2, 2002, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.
Although the Accomplishment Instructions of the service bulletins specify to submit a service bulletin compliance form, this proposed AD does not require that action.
The FAA estimates that 29 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 16 work hours per airplane, at an average labor rate of $65 per work hour, to measure the paint thickness. Based on these figures, the cost impact for the proposed measurement of the paint thickness on U.S. operators is estimated to be $30,160, or $1,040 per airplane.
It would take approximately 3 work hours per airplane, at an average labor rate of $65 per work hour, to install the placards. Required parts would be provided to operators at no cost. Based on these figures, the cost impact for the proposed installation of the placards on U.S. operators is estimated to be $5,655, or $195 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The 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:
To prevent structural damage to the horizontal stabilizer after a direct lightning strike, which could result in reduced controllability of the airplane, accomplish the following:
(a) Within 7 months after the effective date of this AD: Measure the thickness of the paint on the upper and lower surfaces of the left and right sides of the horizontal stabilizer in accordance with all of the actions specified in paragraphs 2.A. through 2.D. of the Accomplishment Instructions of Dassault Service Bulletin F900-291, dated February 20, 2002; Dassault Service Bulletin F900EX-155, dated February 20, 2002; or Dassault Service Bulletin F2000-234, dated February 20, 2002; as applicable. Any necessary corrective action must be done before further flight in accordance with the applicable service bulletin.
(b) After accomplishing the actions required by paragraph (a) of this AD, before further flight, install placards on the upper surface of the left and right sides of the horizontal stabilizer in accordance with paragraph 2.E. of the Accomplishment Instructions of Dassault Service Bulletin F900-291, dated February 20, 2002; Dassault Service Bulletin F900EX-155, dated February 20, 2002; or Dassault Service Bulletin F2000-234, dated February 20, 2002; as applicable.
(c) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in French airworthiness directive 2002-089(B), dated March 2, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes. This proposal would require one-time inspections of the inner webs and flanges at frames 15, 18, 41, and 43 for evidence of corrosion or cracking, and corrective actions if necessary. This action is necessary to detect and correct corrosion and cracking of the inner webs and flanges at frames 15, 18, 41, and 43, which could result in reduced structural integrity of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by December 15, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-144-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 British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
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 2002-NM-144 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. 2002-NM-144-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on certain BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes. The CAA advises that cracking has been discovered at the inner webs and flanges at frame 18. Investigation revealed that the cracking is caused by ingress of moisture leading to corrosion, followed by subsequent cracking. Such cracking, if not corrected, could result in reduced structural integrity of the airplane.
BAE Systems (Operations) Limited has issued Service Bulletin ISB.53-165, dated December 11, 2001, which describes procedures for detailed visual inspections of frames 15, 18, 41, and 43 for evidence of corrosion or cracking. If corrosion or cracking is found, the corrective actions include blending to limits specified in the service bulletin and reprotecting all base metals. If corrosion or cracking exceeds the acceptable limits specified in the service bulletin, operators are instructed to contact the manufacturer. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The CAA classified this service bulletin as mandatory and issued British airworthiness directive 004-12-2001 to ensure the continued airworthiness of these airplanes in the United Kingdom.
These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions per a method approved by the FAA or CAA (or its delegated agent). In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair approved by either the FAA or the CAA (or its delegated agent) would be acceptable for compliance with this proposed AD.
The service bulletin specifies to submit information to the manufacturer; however, this proposed AD does not include such a requirement.
The service bulletin also specifies compliance time in terms of “years of age” and “time period from first flight” of the airplane; relative to the effective date of the service bulletin. Paragraph (b) of this proposed AD specifies the inspection thresholds in terms of years after the date of issuance of the original Airworthiness Certificate or the date of issuance of the Export Certificate of Airworthiness, whichever is earlier; and relative to the effective date of the proposed AD. This decision is based on our determination that “years of age” and “time period from first flight” may be interpreted differently by different operators. We find that our proposed terminology is generally understood within the industry, and records will always exist that establish these dates with certainty.
The FAA estimates that 55 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 10 work hours per airplane to accomplish the proposed inspections, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $35,750, or $650 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The 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:
To detect and correct corrosion and cracking of the inner webs and flanges at frames 15, 18, 41, and 43, which could result in reduced structural integrity of the airplane, accomplish the following:
(a) Except as provided by paragraph (c) of this AD: Do a detailed inspection of frames 15, 18, 41, and 43 (including any applicable repair) by accomplishing all actions specified in the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin ISB.53-165, dated December 11, 2001. Do the inspection at the applicable time specified in paragraph (b) of this AD.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(b) Do the inspection required by paragraph (a) of this AD at the applicable time specified in paragraph D., “Compliance,” of the service bulletin, except where the service bulletin specifies “time period from first flight” or “years of age,” this AD establishes the thresholds in terms of years after the date of issuance of the original Airworthiness Certificate or the date of issuance of the Export Certificate of Airworthiness, whichever is earlier. Where the service bulletin specifies compliance times relative to the date of the service bulletin, this AD requires compliance times relative to the effective date of this AD.
(c) If any discrepancy is found during any inspection required by paragraph (a) of this AD, before further flight, accomplish the applicable repair in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin ISB.53-165, dated December 11, 2001. If the service bulletin specifies to contact the manufacturer for appropriate action, before further flight, repair per a method approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the Civil Aviation Authority (or its delegated agent).
(d) Although the service bulletin referenced in this AD specifies to submit information to the manufacturer, this AD does not include such a requirement.
(e) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in British airworthiness directive 004-12-2001.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 86-26-04, which applies to certain Cessna Aircraft Company (Cessna) 120, 140, 140A, 150, F150, 170, 172, F172, FR172, P172D, 175, 177, 180, 182, 185, A185E, 190, 195, 205, 205A, 206, P206, P206E, TP206A, TU206, TU206E, U206, U206E, 207, T207, 210, T210, 336, 337, and T337 series airplanes. AD 86-26-04 currently requires you to inspect and, if necessary, modify the pilot/co-pilot upper shoulder harness adjusters that have certain Cessna accessory kits incorporated. This proposed AD is the result of reports that additional airplanes have the same unsafe condition and the manufacturer revised the service information to add these airplanes and correct the part number of the shoulder harness adjusters. Consequently, this proposed AD would retain the actions of AD 86-26-04, add additional airplanes to the applicability section of this proposed AD, and propose using the revised service information. We are issuing this proposed AD to prevent slippage of the pilot/co-pilot shoulder harness, which could result in failure of the shoulder harness to maintain proper belt length adjustment and tension. This failure could result in pilot/co-pilot injury.
We must receive any comments on this proposed AD by January 12, 2004.
Use one of the following to submit comments on this proposed AD:
•
•
•
You may get the service information identified in this proposed AD from Cessna Aircraft Company, Product Support P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800; facsimile: (316) 942-9006.
You may view the AD docket at FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-CE-40-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. Office hours are 8 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
Gary D. Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone: (316) 946-4123; facsimile: (316) 946-4107.
This caused us to issue AD 86-26-04, Amendment 39-5503 (52 FR 520, January 7, 1987). AD 86-26-04 currently requires the following on certain Cessna 120, 140, 140A, 150, F150, 170, 172, F172, FR172, P172D, 175, 177, 180, 182, 185, A185E, 190, 195, 205, 205A, 206, P206, P206E, TP206A, TU206, TU206E, U206, U206E, 207, T207, 210, T210, 336, 337, and T337 series airplanes:
• Inspecting the upper shoulder harness adjuster for the presence of a retainer spring;
• If retainer spring is found, removing the retainer spring; and
• Stamping out the -401 identification number.
Cessna has also revised the related service information to correct the reference to the part number (P/N) of the shoulder harness adjusters. The P/N referenced is referenced as 44030-401 in Cessna Single Engine Service Bulletin SEB86-8 and Cessna Multi-engine Service Bulletin MEB86-22, both dated November 21, 1986. The correct P/N is 443030-401.
• Inspecting the upper shoulder harness adjuster for the presence of a retainer spring;
• If retainer spring is found, removing the retainer spring; and
• Stamping out the -401 identification number.
The installation of the springs in the lower adjuster does not constitute an unsafe condition. Therefore, we are not proposing a requirement to remove the spring from the lower adjuster.
We estimate the following costs to accomplish any necessary modification that would be required based on the results of this proposed inspection. We have no way of determining the number of airplanes that may need this modification:
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. 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.
We prepared a summary of the costs to comply with this proposed AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 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. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 86-26-04, Amendment 39-5503 (52 FR 520, January 7, 1987), and by adding a new AD to read as follows:
(a) We must receive comments on this proposed airworthiness directive (AD) by January 12, 2004.
(b) This AD supersedes AD 86-26-04, Amendment 39-5503.
(c) This AD affects the following airplane models and serial numbers that are certificated in any category and incorporate one of the Cessna accessory kits specified in paragraph (d) of this AD.
(d) The following is a list of the affected Cessna accessory kits:
(e) The actions specified in this AD are intended to prevent slippage of the pilot/co-pilot shoulder harness, which could result in failure of the shoulder harness to maintain proper belt length adjustment and tension. This failure could result in pilot/co-pilot injury.
(f) To address this problem, you must do the following, unless already done:
(g) If you did the actions of this AD using Cessna Single Engine Service Bulletin SEB86-8 and Cessna Multi-engine Service Bulletin MEB86-22, both dated November 21, 1986, no further action is required as long as you used shoulder harness adjuster, P/N 443030-401.
(h) You may request a different method of compliance or a different compliance time for this AD by following the procedures in 14 CFR 39.13. Send your request to the Manager, Wichita Aircraft Certification Office (ACO), FAA. For information on any already approved alternative methods of compliance, contact Gary D. Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone: (316) 946-4123; facsimile: (316) 946-4107.
(i) You may get copies of the documents referenced in this AD from Cessna Aircraft Company, Product Support P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800; facsimile: (316) 942-9006. You may view these documents at FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Pratt & Whitney Canada (PWC) JT15D-1, -1A, and -1B turbofan engines with certain impellers part number (P/N) 3020365. This proposed AD would require a one-time borescope inspection of the rear face of certain impellers for evidence of a machined groove or step, and repair or replacement of the impeller if a groove or step is found. This proposed AD is prompted by three reports of uncontained failure of the impeller. We are proposing this AD to prevent uncontained failure of the impeller and possible damage to the airplane.
We must receive any comments on this proposed AD by January 12, 2004.
Use one of the following addresses to submit comments on this proposed AD:
• By mail: Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-NE-41-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
You can get the service information identified in this proposed AD from Pratt & Whitney Canada, 1000 Marie-Victorin, Longueuil, Quebec, Canada J4G1A1, telephone (800) 268-8000; fax (450) 647-2888. You may examine the AD docket, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7178; fax (781) 238-7199.
We invite you to submit any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You may get more information about plain language at
You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See
Transport Canada (TC), which is the airworthiness authority for Canada, recently notified the FAA that an unsafe condition may exist on PWC JT15D-1, -1A, and -1B turbofan engines with certain impellers, P/N 3020365 installed. TC advises that there have been three uncontained failures of impellers, P/N 3020365. TC advises that some impellers, P/N 3020365, were manufactured with a machined groove or a step on the rear face. Incidents of impeller fracture and uncontained liberation of high-energy fragments have occurred. The National Transportation Safety Board has investigated and determined that machine marks on the back face of the impeller were the cause of these failures. An impeller with this machined groove or step on the rear face could result in an uncontained failure of the impeller.
We have reviewed and approved the technical contents of Pratt & Whitney Canada Service Bulletin (SB) No. JT15D-72-7590, dated May 23, 2003. That SB describes procedures for borescope inspecting impellers, P/N 3020365, that were not previously inspected using PWC overhaul manual Revision 14, and that are not listed in Appendix A of the SB No. JT15D-72-7590, dated May 23, 2003. Transport Canada classified this SB as mandatory and issued airworthiness directive CF-2003-17, dated June 23, 2003, in order to ensure the airworthiness of these PWC engines in Canada.
These PWC JT15D-1, -1A, and -1B turbofan engines, manufactured in Canada, are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, Transport Canada has kept us informed of the situation described above. We have examined Transport Canada's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require a one-time borescope inspection of the rear face of certain impellers for evidence of a machined groove or step, and repair or replacement of the impeller, if a groove or step is found. The proposed AD would require you to use the service information described previously to perform these actions.
On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47998, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.
There are about 1,300 PWC JT15D-1, -1A, and -1B turbofan engines of the affected design in the worldwide fleet. We estimate that 740 of the PWC engines installed on airplanes of U.S. registry would be affected by this
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.
For the reasons discussed above, I certify that the 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. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this proposal and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 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. The FAA amends § 39.13 by adding the following new airworthiness directive:
(a) The Federal Aviation Administration must receive comments on this airworthiness directive (AD) action by January 12, 2004.
(b) None.
(c) This AD applies to Pratt & Whitney Canada (PWC) JT15D-1, -1A, and -1B turbofan engines with certain impellers, part number (P/N) 3020365, installed. These engines are installed on, but not limited to, Cessna Aircraft Company Models 500 and 501 airplanes.
(d) This AD is prompted by three reports of uncontained failure of the impeller. We are issuing this AD to prevent uncontained failure of the impeller and possible damage to the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) If you have already inspected the impeller, P/N 3020365, using PWC overhaul manual Revision 14, or if the impeller is listed in Appendix A of PWC (SB) No. JT15D-72-7590, dated May 23, 2003, no further action is required.
(g) Perform a one-time borescope inspection of the impeller rear face for evidence of a machined groove or step, using paragraph 3.B. of Accomplishment Instructions of PWC SB No. JT15D-72-7590, dated May 23, 2003: as follows:
(1) For engines with 5,000 or more cycles-since-new (CSN) on the effective date of this AD, inspect within 250 cycles-in-service (CIS) after the effective date of this AD.
(2) For engines with fewer than 5,000 CSN on the effective date of this AD, inspect before reaching 5,250 CSN.
(h) Before further flight, repair or replace impellers that do not pass the inspection requirements of paragraph 3.B.(8) of Accomplishment Instructions of PWC SB No. JT15D-72-7590, dated May 23, 2003.
(i) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(j) You must use PWC SB No. JT15D-72-7590, dated May 23, 2003, to perform the one-time inspection required by this AD. Approval of incorporation by reference from the Office of the Federal Register is pending.
(k) Transport Canada airworthiness directive CF-2003-17, dated June 23, 2003, also addresses the subject of this AD.
Department of State.
Extension of comment period.
The Department of State (the Department) is extending by 30 days the public comment period for the proposed rules on the Accreditation of Agencies and Approval of Persons under the Hague Convention on Intercountry Adoption (the Convention) and the Intercountry Adoption Act of 2000 (the IAA) and on the Preservation of Convention Records. The proposed rules were published in part II of the
Comments must be received on or before December 15, 2003.
Commenters may send hard copy submissions or comments in electronic format. Commenters sending only hard copies must send an original and two copies referencing docket number State/AR-01/96 or State/AR-01/98 to: U.S. Department of State, CA/OCS/PRI, Adoption Regulations Docket Room, SA-29, 2201 C Street, NW., Washington, DC 20520. Hard copy comments may also be sent by overnight courier services to: U.S. Department of State, CA/OCS/PRI, Adoption Regulations Docket Room, 2201 C Street, NW., Washington, DC 20520. Do
Comments referencing the docket number State/AR-01/96 or State/AR-01/98 may be submitted electronically to
Anna Mary Coburn or Jessica Rosenbaum at 202-647-2826. Hearing-or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.
On September 15, 2003, the Department published in part II of the
You can view electronic versions of the proposed rules on
Department of State.
Proposed rule.
This proposed rule makes various changes to the DOSAR. It updates the DOSAR to reflect the current acquisition organizational structure; provides information regarding electronic commerce initiatives as they relate to acquisition; outlines the Department's participation in the Defense Priorities Allocation System; incorporates a Small Business Administration (SBA) waiver regarding 8(a) competitive actions; establishes the Department's Mentor-Protégé Program; eliminates the requirement to collect data on minority business status; adds guidance and related clauses and provisions regarding overseas construction projects subject to the Foreign Service Buildings Act, as amended, and the Omnibus Diplomatic Security and Antiterrorism Act; adds guidance and a related provision regarding the acquisition of local guard services overseas; and, provides information regarding the Contractor Performance System. Finally, the proposed rule contains miscellaneous technical amendments and corrections needed to bring the DOSAR in line with recent changes in the Federal Acquisition Regulation.
Public comments must be received by January 12, 2004.
Comments may be sent to: Gladys Gines, Procurement Analyst, Department of State, Office of the Procurement Executive, 2201 C Street NW., Suite 603, State Annex Number 6, Washington, DC 20522-0602; e-mail address:
Gladys Gines, telephone (703) 516-1691 or at the e-mail address specified above.
As indicated in the Summary, the proposed rule makes numerous changes in a variety of areas. The more substantive changes are:
• Revision to 601.603-70 to delete several acquisition offices that have been eliminated.
• Addition of information in 604.502 regarding the posting of domestic solicitations on the Statebuy Interactive Platform (SIP). The SIP is Internet-based.
• Extension of the waiver in 605.202-70 to March 12, 2004, as approved by the agency head. Numerous administrative changes are made to Part 605 and other parts of the DOSAR to change the references to the Commerce Business Daily (CBD) to the Governmentwide Point of Entry (GPE), in accordance with Federal Acquisition Circular (FAC) 97-26.
• Addition of 609.404-70 to require that contracting officers, in addition to checking the Excluded Parties List, also check the list of entities on the Department of Treasury's Office of Foreign Asset Control List.
• Removal of the class deviation in 609.405 regarding checking the Excluded Parties List (EPL). The class deviation waived the requirement for overseas contracting activities to check the EPL, as well as waived the requirement for domestic contracting activities for actions under the simplified acquisition threshold. This deviation was put in place when the EPL was available only in hard copy, and receipt by both domestic and overseas contracting activities was inconsistent. Now that the EPL is available on the Internet, the class deviation is no longer required.
• Addition of a new Subpart 611.6. This reflects the Department's authority to use the Defense Priorities Allocation System (DPAS) for acquisitions related to the Department's Embassy Security Protection Program, as authorized by the Department of Commerce.
• Addition of a new Part 612 to delegate to the Head of the Contracting Activity the approval of requests for waiver to tailor a commercial item clause or provision that is inconsistent with customary commercial practices.
• Addition to 613.303-5 to allow for the placement of individual orders against blanket purchase agreements for commercial items that exceed the simplified acquisition threshold.
• Addition of Bureau Executive Directors to 617.504-70(a) as signatories of Economy Act Interagency Acquisition Agreements.
• Addition of HUBZone small, veteran-owned small, and service-disabled veteran-owned small businesses to the list of small business concerns in Part 619.
• Addition of 619.202-70 to outline the Department's Mentor-Protégé
• Addition at 619.805-2 of a waiver approved by the Small Business Administration regarding competitive 8(a) awards. The waiver allows the Department to acquire services exceeding $3 million and supplies exceeding $5 million on a non-competitive basis for acquisitions that supplement the security of U.S. diplomatic posts and protect the lives of Department personnel.
• Addition of a new Subpart 622.15 regarding the referral of suspected violations under Executive Order 13126, Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor. Contracting officers shall refer suspected violations to the Department's Inspector General.
• Elimination of Part 626 regarding the collection of minority business status information. There is no longer a need to collect this information.
• Elimination of Subpart 623.1 to coincide with the elimination of FAR Subpart 23.1 as part of FAC 97-15.
• Revision of Subpart 623.4 to align it with FAR Subpart 23.4.
• Elimination of Subpart 625.3. The Balance of Payments Program was eliminated from the FAR in FAC 2001-07.
• Elimination of Subpart 625.7. The current FAR coverage is sufficient; no further implementation is required.
• Elimination of Subpart 628.70 regarding indemnification. Existing FAR coverage is sufficient. The associated clause at 652.228-70 is removed accordingly.
• Addition of Part 630 to indicate that the Procurement Executive is the agency head's designee for the purposes of FAR 30.201-5(a).
• Addition of 636.104-70 regarding the Foreign Service Buildings Act, as amended (22 U.S.C. 302). This statute limits competition for the construction, alteration, or repair of buildings or grounds abroad exceeding $5 million to American-owned firms or firms of countries which permit or agree to permit substantially equal access to American firms for comparable diplomatic and consular building projects. This statute also provides for a ten (10) percent price reduction preference for American-owned firms. An associated certification is added at 652.236-71. The purpose of the certification is to determine a bidder/offeror's status as an American-owned firm in accordance with the requirements of the statute.
• Addition of 636.104-71 regarding the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (22 U.S.C. 4852). Section 402 of this statute limits construction or design projects abroad exceeding $10 million, or diplomatic construction projects that involve technical security, to United States persons or qualified United States joint venture persons. This statute also excludes organizations that have business arrangements with the Government of Libya. An associated certification is added at 652.236-72. The purpose of the certification is to determine a bidder/offeror's status as a United States person or qualified United States joint venture person, and its business relations with Libya, in accordance with the requirements of the statute.
• Addition of 636.202 to designate the Director/Chief Operating Officer of the Bureau of Overseas Building Operations as the individual who may exempt a construction project from the general requirements as expressed in E.O. 13202, Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects.
• Elimination of 636.602-4 regarding the selection authorities for architect-engineer contracts. This is internal information that does not affect the public and does not need to be in the codified version of the regulation.
• Addition of 637.102-70 to provide guidance regarding the acquisition of local guard services overseas in accordance with Section 136 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C. 4864), which has continuing effect. Section 136 encourages the participation of United States persons and qualified United States joint venture persons in local guard contracts overseas under diplomatic security programs, and provides for a ten (10) percent price reduction preference for such firms. An associated certification is added at 652.237-73. The purpose of the certification is to determine a bidder/offeror's status as a United States person or qualified United States joint venture person in accordance with the requirements of the statute.
• Addition of Subpart 637.6 to reflect the Department's policy for using performance-based service contracts for all new service contracts. Contracting activities must prepare a written justification that must be approved by the Departmental Competition Advocate when deviating from this policy.
• Addition of Subpart 642.15 regarding the Contractor Performance System (CPS). The Department subscribes to the CPS maintained by the National Institutes of Health. Contracting officers must use the CPS to record their evaluation of a contractor's past performance for all contracts exceeding $100,000.
• Revision of the clause at 652.216-70, Ordering—Indefinite-Delivery Contract, to reflect a new form number for the Department's purchase order form. The form number OF-206 was changed to the DS-2076.
• Revision of the provision at 652.219-70, Department of State Subcontracting Goals, to add HUBZone small and service-disabled veteran-owned small businesses to the list of organizations that have established subcontracting goals.
• Revision of the clause at 652.236-70, Accident Prevention, to better clarify the situations under which the contracting officer must seek additional information in the contractor's written safety plan.
• Revision of the clause at 652.237-71, Identification/Building Pass, to provide more detailed information on what contractors must submit to receive a building pass to work on DOS facilities.
• Revision of the clause at 652.237-72, Observance of Legal Holidays and Administrative Leave, to reflect the Monday holiday law.
The Department of State certifies that this regulation will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The Unfunded Mandates Act of 1995 requires agencies to prepare several analytical statements before proposing any rule that may result in annual expenditures of $100 million of State, local, and Indian tribal governments or the private sector. Since this proposed rule will not result in expenditures of this magnitude, the Department certifies that such statements are not necessary.
Information collection requirements have been approved under the Paperwork Reduction Act of 1980 by OMB, and have been assigned OMB control number 1405-0050. The Department is currently seeking approval for the information collection
Government procurement.
Accordingly, title 48, chapter 6 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for 48 CFR Parts 601, 602, 603, 604, 605, 606, 609, 611, 612, 613, 616, 617, 619, 622, 623, 625, 626, 628, 630, 632, 636, 637, 642, 651, 652, and 653 continues to read as follows:
40 U.S.C. 486(c); 22 U.S.C. 2658.
2. Section 601.105-3 is revised to read as follows:
The DOSAR is available through the Department's Intranet system at
3. Section 601.106 is amended by removing from the last sentence “225,302 hours” and inserting “225,503 hours” in its place.
4. Section 601.603-1 is added to read as follows:
Details of the Department's acquisition career management program are described in 6 FAH-6, the Acquisition Career Management Program Handbook, which is available on the Intranet from the A/OPE Web site (
5. Section 601.603-3 is amended by revising paragraph (d) to read as follows:
(d)
(1) The Human Resources Officer;
(2) The Human Resources/Financial Management Officer; or,
(3) The Management Officer or an American Foreign Service Officer designated to perform human resource functions.
6. In section 601.603-70, paragraph (a) is revised and a sentence is added at the end of paragraph (b)(6) to read as follows:
(a)
(1)
(i) No authority is delegated to enter into cost-reimbursement, fixed-price incentive, or fixed-price redeterminable contracts. Design/build solicitations and contracts may only be entered into with the written approval of A/OPE and OBO. Proposed construction contracts exceeding $500,000 and any related architect-engineer contracts must have prior A/OPE approval.
(ii) When expressly authorized by a U.S. Government agency which does not have a contracting officer at the post, the officers named in paragraph (a)(1) introductory text of this section may enter into contracts for that agency. Use of this authority is subject to the statutory authority of that agency and any special contract terms or other requirements necessary for compliance with any conditions or limitations applicable to the funds of that agency. The agency's authorization shall cite the statute(s) and state any special contract terms or other requirements with which the acquisition so authorized must comply. In view of the contracting officer's responsibility for the legal, technical, and administrative sufficiency of contracts, questions regarding the propriety of contracting actions that the post is required to take pursuant to this authority may be referred to the Department for resolution with the headquarters of the agency concerned.
(2)
(3)
(4)
(5)
(6)
(7)
(i) RPSO Frankfurt in conjunction with Consulate General Frankfurt; and
(ii) RPSO Florida in conjunction with the Florida Regional Center.
(b) * * *
(6) * * * These authorities extend to any acquisition performed by any Department of State contracting activity on behalf of INL.
7. Section 602.101-70 is amended by adding, in alphabetical order, a definition of “Chief of Mission”; and, by revising the definition of “Despatch Agency”, as follows:
8. Section 603.104-5 is redesignated as section 603.104-4.
9. Section 603.104-10 is redesignated as section 603.104-7. New section 603.104-7 is amended in paragraph (d)(2)(ii)(B) by correcting the citation at the end of the paragraph to read “FAR 3.104-7(d)(2)(ii)(B).”
10. Section 603.204 is amended by revising paragraph (b) to read as set forth below, and by removing paragraph (c):
(b) Upon completion of the investigation and/or prosecution or with the consent of the U.S. Department of Justice, the Assistant Inspector General for Investigations shall provide to the Procurement Executive a report, together with all pertinent documentation, concerning the suspected violation. The Office of the Procurement Executive shall provide to the contractor a written notice by certified mail, return receipt requested, presenting the findings, and shall establish a schedule, including location, for an investigative hearing for the purposes described in FAR 3.204(b).
11. Section 603.601 is amended by adding the following sentence to the end of paragraph (a):
(a) * * * This policy also applies to individuals hired under personal services agreements and personal services contracts.
12. A new Subpart 603.8, consisting of section 603.804, is added to read as follows:
(b) The contracting officer shall forward a copy of all contractor disclosures furnished pursuant to the clause at FAR 52.203-12 to the Office of the Legal Adviser, Employment Law, Senior Ethics Counsel (L/EMP/Ethics).
13. Subpart 604.5 is revised to read as follows:
(b) The Assistant Secretary of State for Administration is the head of the agency for the purpose of FAR 4.502(b).
(1)(i)
(ii)
(A) Post as much of the solicitation as possible on the Internet; and,
(B) Make hard copies available for those parts of the solicitation that are not in an automated format.
(iii)
14. Section 605.202-70 is amended—
(a) By removing “CBD” in the first sentence of paragraph (a);
(b) By adding the words “in the Governmentwide point of entry (GPE)” after the word “notices” in the first sentence of paragraph (a);
(c) By removing “CBD” and inserting “GPE” in its place in the second sentence of paragraph (a);
(c) By removing the date “May 19, 2001” and inserting the date “March 12, 2004” in its place in the last sentence of paragraph (a);
(d) By removing “CBD” and inserting “GPE” in its place in paragraph (b); and,
(e) By revising paragraph (d) to read as follows:
(d)
15. Section 605.207-70 is amended by removing the word “synopsis” and inserting the word “notice” in its place.
16. Section 605.303 is amended by removing the word “Office” and inserting the word “Bureau” in its place in the first sentence of paragraph (a).
17. Section 606.302-6 is amended—
a. By removing the words “Commerce Business Daily” and inserting “GPE” in their place in paragraph (c)(1)(i);
b. By removing the words “CBD synopsis” and inserting “GPE notice” in their place in paragraph (c)(1)(ii); and,
c. By removing the words “Commerce Business Daily” and inserting “GPE” in their place in paragraph (c)(2).
18. Section 606.370 is amended by removing the word “Administrative” and inserting the word “Management” in its place in the third sentence of paragraph (b).
19. Section 606.501 is amended by inserting the following sentence after the first sentence in paragraph (b):
(b) * * *
20. Section 606.501-70 is amended by removing the word “Administrative” and inserting the word “Management” in its place.
21. A new section 609.404-70 is added to read as follows:
Contracting officers shall not award to any of the entities listed on the Specially Designated Nationals (SDN) List, available on the Department of Treasury's Office of Foreign Assets Control Web site at
22. Section 609.405 is amended—
(a) By removing paragraphs (d) and (d)(1)(i);
(b) By adding a new paragraph (d)(3) to read as indicated below; and, (c) By removing paragraphs (d)(4)(i) and (d)(4)(ii).
(d)(3) The Procurement Executive is the agency head's designee for the purposes of FAR 9.405(d)(3).
23. Section 609.406-3 is amended by revising the last two sentences of paragraph (a)(1) to read as follows:
(a)(1) * * * The Office of the Inspector General shall investigate the matter, as appropriate, and provide a copy of its investigation report to the Procurement Executive for consideration of debarment action, if and when appropriate. The contracting officer shall provide to the Procurement Executive and the Office of the Inspector General a copy of his or her intended actions in response to the Office of the Inspector General report.
24. A new Subpart 611.6 is added to read as follows:
On September 18, 2001, the Department of Commerce (DOC) authorized the Department of State to use the Defense Priorities and Allocations System (DPAS). This authority expires on October 1, 2006. The Department of Defense has approved the Department's Embassy Security Protection Program (DOSESPP) as a national defense program eligible for the priorities support under the DPAS.
(c)(1) Authority to use the DPAS is limited to the following circumstances:
(i) The contract or order must be placed with a U.S. firm; and, (ii) The contract or order must be in support of the DOSESPP, which consists of work involving the security of overseas posts. The DOSESPP includes a wide range of elements of both physical and technical security, such as:
(A) New Embassy/Consulate Compound (NEC/NCC) Program. This program involves the construction of new secure Embassies, Consulates, and related facilities, as well as renovations of newly acquired buildings when used as alternatives to the construction of new secure buildings.
(B) Physical security upgrade. This includes installation of forced entry/ballistic resistant (FE/BR) windows and doors, walls/fences, active anti-ram barriers, bollards (concrete and steel barriers), and related items.
(C) Forced entry/ballistic resistant (FE/BR) components. This includes doors, windows, and related facilities and items that can provide the necessary time to protect Government personnel from attack.
(D) Armored vehicles. This includes passenger vehicles with appropriate armoring.
(E) Entry control and building surveillance equipment. This includes walk-through metal detectors, X-ray equipment, surveillance cameras, explosive detection equipment, and other features to enhance the protection of Government personnel and facilities.
(2) DOC has assigned the following priority rating to DOSESPP contracts or orders: DO-H8.
(f) Department of State contracting officers are authorized to sign DO-H8 rated contracts or orders. It is the responsibility of the requirements office to determine which contracts or orders should be rated. All contracts with U.S. firms under the DOSESPP will not necessarily need to be assigned a priority rating.
(g) The contracting officer should place a DO-H8 rating on any contract or order if there is any doubt as to whether a contractor doing work for Embassy security protection will be able to deliver on time. If an unrated contract or order is not completed on time, the contracting officer may modify the contract or order to add the rating; however, the rating shall only be effective for the newly established delivery date, not the original delivery date.
(1) DOC can provide special assistance to implement the DPAS program in specific cases. For example, the Department may request a higher priority rating, or request that DOC issue a written directive to a contractor that is not complying with the DPAS regulations. In addition, although the DPAS program normally applies only to U.S. firms, if the Department has a prime contract with a foreign firm that will be awarding subcontracts with U.S. firms, the Department may request from DOC authorization to place a rating on the prime contract.
(2) Contracting officers or requirements offices who wish to request special assistance from DOC must complete DOC Form BXA-999,
25. A new Part 612, consisting of Subpart 612.3 and section 612.302, is added to subchapter B as follows:
(c) The head of the contracting activity shall approve any request for a waiver to tailor a clause or otherwise include any additional terms or conditions in a solicitation or contract in a manner that is inconsistent with customary commercial practice.
26. Section 613.303-5 is amended by adding a new paragraph (b) to read as follows:
(b) Individual purchases under BPAs for commercial items may exceed the simplified acquisition threshold; however, the higher threshold must be consistent with the requirements of FAR 13.303-5(b)(1) and (2).
27. Section 616.505 is amended by correcting the paragraph designation of “(b)(4)” to read “(b)(5)”.
28. Section 617.204 is amended by adding the following sentence to the end of paragraph (e):
(e) * * * The Procurement Executive may delegate this approval authority to individuals within the Office of the Procurement Executive.
29. Section 617.504-70 is amended by adding the words “and Bureau Executive Directors” after the words “deputy assistant secretaries” in paragraph (a) and by removing the parenthetical “(illustrated in part 653)” in the first sentence of paragraph (b).
30. Section 619.201 is revised to read as follows:
(a) The Operations Director, Office of Small and Disadvantaged Business Utilization (A/SDBU), is responsible for performing all functions and duties prescribed in FAR 19.201(c) and (d).
(b) In addition to the requirements of FAR 19.201(b), each head of the contracting activity, or designee, is responsible for establishing in coordination with the A/SDBU Operations Director annual goals for the DOS small business program.
(c) The Assistant Secretary of State for Administration is the agency head for the purposes of FAR 19.201(c).
(d) Pursuant to FAR 19.201(d), each Small and Disadvantaged Business Utilization Specialist (SDBUS) is responsible for—
(1) Maintaining a program to locate capable small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business sources to fulfill DOS acquisition requirements;
(2) Coordinating inquiries and requests for advice from small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business concerns on DOS contracting and subcontracting opportunities and other acquisition matters;
(3) Advising contracting activities on new or revised small business policies, regulations, procedures, and other related information;
(4) Assuring that small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business concerns are provided adequate specifications or drawings by initiating, in writing, with appropriate technical and contracting personnel to ensure that all necessary specifications or drawings for current and future acquisitions, as appropriate, are available;
(5) Reviewing all proposed acquisitions in excess of the simplified acquisition threshold, including commercial items using the simplified acquisition procedures of FAR Subpart 13.5, and task and delivery orders under multiple award contracts exceeding $2 million, to assure that small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business concerns will be afforded an equitable opportunity to compete and, as appropriate, initiating recommendations for small business, 8(a), or HUBZone set-asides. This includes proposed contract modifications for new or additional requirements that do not fall within the original scope of the contract and which exceed the simplified acquisition limitation. This does not include the exercising of contract options;
(6) Assuring that contract financing available under existing regulations is offered when appropriate and that requests by small business concerns for such financing are not treated as a handicap in the award of contracts;
(7) Providing assistance to the contracting officer in making determinations concerning responsibility of prospective contractors whenever small business concerns are involved;
(8) Participating in the evaluation of a prime contractor's small, small disadvantaged, woman-owned small, HUBZone small, veteran-owned small, and service-disabled veteran-owned small business subcontracting plans;
(9) Assuring that the participation of small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business concerns is accurately reported;
(10) Attending, as appropriate, debriefings to unsuccessful small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business concerns to assist those firms in understanding requirements for responsiveness and responsibility so that the firm may be able to qualify for future awards;
(11) Making available to SBA copies of solicitations when so requested;
(12) When a bid or offer from a small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business has been rejected for non-responsiveness or non-responsibility, upon request, aid, counsel, and assist that firm in understanding requirements for responsiveness and responsibility so that the firm may be able to qualify for future awards;
(13) Participating in Government-industry conferences to assist small business concerns, including Business Opportunity/Federal Acquisition Conferences, Minority Business Enterprise Acquisition Seminars and Business Opportunity Committee meetings;
(14) Maintaining a list of supplies and services that have been placed as repetitive small business set-asides;
(15) Participating in the development, implementation, and review of automated source systems to assure that the interests of small business concerns are included;
(16) Advising potential sources how they can obtain information about competitive acquisitions;
(17) Providing small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business, and service-disabled veteran-owned small business concerns information regarding assistance available from Federal agencies such as the Small
(18) Participating in interagency programs relating to small business matters as authorized by the A/SDBU Operations Director.
(f)(1) The Procurement Executive is the agency designee for the purposes of FAR 19.201(f)(1). The written determination shall be forwarded to the Procurement Executive through the A/SDBU Operations Director.
31. A new section 619.202, and subsection 619.202-70 are added to read as follows:
(a)
(b)
(c)
(d)
(2) A firm's status as a protégé under a DOS contract shall not have an effect on the firm's ability to seek other prime contracts or subcontracts.
(e)
(2) Before awarding a contract that requires a subcontracting plan, the existence of a mentor-protégé arrangement, and performance, if any, under an existing arrangement, may be considered by the contracting officer in:
(i) Evaluating the quality of a proposed subcontracting plan under FAR 19.704-5; and,
(ii) Assessing the prime contractor's compliance with the subcontracting plans submitted in previous contracts as a factor in determining contractor responsibility under FAR 19.705-5(a)(1).
(3) A non-monetary award may be presented annually (or as often as appropriate) to the mentoring firm providing the most effective developmental support of a protégé. The Mentor-Protégé Program Manager will recommend an award winner to the Operations Director, A/SDBU.
(f)
(1) The increase in the number and dollar value of contracts awarded to protégé firms under DOS contracts from the date the protégé enters the program;
(2) The increase in the number and dollar value of contracts and subcontracts awarded to the protégé under other Federal agencies and commercial contracts; and,
(3) The developmental assistance provided by the mentor firm and the resulting increase in the technical, managerial, financial or other capabilities of the protégé firm, as reported by the protégé.
(g)
(1) May be either a large or small business;
(2) Must be eligible for award of U.S. Government contracts;
(3) Must be able to provide developmental assistance that will enhance the ability of protégés to perform as subcontractors; and,
(4) Will be encouraged to enter into arrangements with protégés and firms with whom they have established business relationships.
(h)
(i) A SB, HUBZone, SDB, WOSB, VOSB, or SDVOSB as those terms are defined in FAR 2.101;
(ii) Small in the NAICS code for the services or supplies to be provided by the protégé to the mentor; and,
(iii) Eligible for award of U.S. Government contracts.
(2) Except for SDB and HUBZone firms, a protégé firm may self-certify to a mentor firm that it meets the requirements set forth in paragraph (h)(1) of this subsection. Mentors may rely in good faith on written representations by potential protégés that they meet the specified eligibility requirements. SDB status eligibility and documentation requirements are determined by FAR 19.304. HUBZone status eligibility and documentation requirements are determined by FAR 19.1303.
(3) Protégés may have multiple mentors. Protégés participating in mentor-protégé programs in addition to DOS's program should maintain a system for preparing separate reports of mentoring activity for each agency's program.
(i)
(2) Mentors may have multiple protégés.
(3) The selection of protégé firms by mentor firms may not be protested, except that any protest regarding the size or eligibility status of an entity selected by a mentor shall be handled in accordance with FAR and SBA regulations.
(j)
(2) A proposed mentor shall submit the application form and associated information to A/SDBU.
(k)
(2) Upon completion of the review, A/SDBU will advise the mentor if its application is acceptable. The mentor may then implement the developmental assistance program in accordance with the approved agreement.
(3) The agreement defines the relationship between the mentor and protégé firms only. The agreement itself does not create any privity of contract between the mentor or protégé and the DOS.
(l)
(1) Management guidance relating to:
(i) Financial management;
(ii) Organizational management;
(iii) Overall business management/planning;
(iv) Business development; and,
(v) Technical assistance.
(2) Loans;
(3) Rent-free use of facilities and/or equipment;
(4) Property;
(5) Temporary assignment of personnel to protégé for purpose of training; and
(6) Any other types of permissible, mutually beneficial assistance.
(m)
(2) Mentor and protégé firms shall submit to A/SDBU annual reports on program progress of the mentor-protégé agreements. Large business mentors may submit these reports as part of their SB, HUBZone, SDB, WOSB, VOSB, and SDVOSB plan submission in accordance with the due date on the SF-295. DOS shall consider the following in evaluating these reports:
(i) Specific actions taken by the contractor, during the evaluation period, to increase the participation of protégés as suppliers to the U.S. Government and to commercial entities;
(ii) Specific actions taken by the mentor, during the evaluation period, to develop the technical and corporate administrative expertise of a protégé as defined in the agreement;
(iii) To what extent the protégé has met the developmental objectives in the agreement; and,
(iv) To what extent the mentor firm's participation in the Mentor-Protégé Program resulted in the protégé receiving contract(s) and subcontract(s) from private firms and agencies other than the DOS.
(3) The DOS A/SDBU shall submit the annual reports to the cognizant contracting officer regarding participating prime contractor(s) performance in the program.
(4) Mentor and protégé firms shall submit an evaluation to the A/SDBU at the conclusion of the mutually agreed upon program period, the conclusion of the contract, or the voluntary withdrawal by either party from the program, whichever comes first.
(n)
(2) DOS may rescind approval of an existing Mentor-Protégé agreement if it determines that such an action is in the Department's best interest. The recission shall be in writing and sent to the mentor and protégé firms after approval by the A/SDBU Operations Director. Recission of an agreement does not change the terms of the subcontract between the mentor and the protégé or the prime contractor's obligations under its subcontracting plan.
(o)
(2) The contracting officer shall insert the clause at 652.219-73, Mentor Requirements and Evaluation, in all contracts where the prime contractor has signed a Mentor-Protégé Agreement with the Department of State.
32. Subpart 619.7 is amended by revising the Subpart heading to read as follows:
33. Section 619.705-1 is revised to read as follows:
It is the Department's policy to incorporate its current fiscal year goals as negotiated with the SBA into all pertinent Department solicitations, in addition to the standard subcontract clauses. Incorporation of the goals does not require that large prime contractors must subcontract, but does require that to the extent they plan to subcontract, specific goals be established for doing business with small, small disadvantaged, women-owned small, HUBZone small, veteran-owned small, and service-disabled veteran-owned small business firms. Where funds are available, an incentive clause such as that found in FAR 52.219-10, Incentive Subcontracting Program, is encouraged.
34. Section 619.705-3 is revised to read as follows:
To further promote the use of small, disadvantaged, women-owned small, HUBZone small, veteran-owned small, and service-disabled veteran-owned small business firms by large prime contractors, contracting officers are encouraged to consider the adequacy of the subcontracting plans, and/or past performance in achieving negotiated subcontract goals, as part of the overall evaluation of the technical proposals.
35. Section 619.705-4 is revised to read as follows:
A/SDBU shall review subcontracting plans to determine if small business, small disadvantaged, women-owned small, HUBZone small, veteran-owned small, and service-disabled veteran-owned small business concerns are afforded the maximum practicable opportunity to participate as subcontractors. A/SDBU shall recommend to the contracting officer changes needed to subcontracting plans found to be deficient.
36. Section 619.705-6-70 is amended by revising the first sentence in paragraph (b) to read as follows:
(b) Contracting officers shall collect subcontracting data from contractors required to establish subcontracting plans in support of small, small disadvantaged, women-owned small, HUBZone small, veteran-owned small, and service-disabled veteran-owned small business concerns.
37. Section 619.708-70 is amended by removing the words “and Small Disadvantaged Business”.
38. Section 619.801 is removed.
39. Section 619.805-2 is amended by adding a new paragraph (a)(2) to read as follows:
(a) * * *
(2) In accordance with a waiver approved by SBA, contract actions for services exceeding $3 million and supplies exceeding $5 million that supplement the security of U.S. diplomatic posts and protect the lives of Department personnel may be awarded non-competitively. Contracting officers do not need to compete 8(a) acquisitions as stated above when those acquisitions exceed the 8(a) competition thresholds. This waiver is in effect for the duration of the national state of emergency as declared by the President of the United States. If a contracting officer has a question as to whether a particular action falls under this waiver, the contracting officer should contact A/SDBU.
40. Subpart 622.13 is amended by revising the Subpart heading to read as follows:
41. Section 622.1303 is redesignated as section 622.1305. Newly designated 622.1305 is amended by revising the citation “FAR 22.1303” at the end of the sentence to read “FAR 22.1305.”
42. Section 622.1308 is redesignated as section 622.1310. Newly designated 622.1310 is amended by revising the citation “FAR 22.1308 (a) (2) and (c)” at the end of the sentence to read “FAR 22.1310(a)(1)(ii) and (a)(2).”
43. A new Subpart 622.15, consisting of section 622.1503, is added to read as follows:
(e) The contracting officer shall refer to the DOS Inspector General for Investigation any instances where the contracting officer has reason to believe that forced or indentured child labor was used to mine, produce, or manufacture an end product furnished pursuant to a contract awarded subject to the certification required in FAR 22.1503(c).
44. Part 623 is amended by revising the heading to read as set forth above.
45. Subpart 623.1, consisting of sections 623.104 and 623.107, is removed and reserved.
46. Section 623.400 is amended by removing the words “made and/or performed” and inserting the word “awarded” in their place in the second sentence.
47. Section 623.404 is revised to read as follows:
(a) The Department's affirmative procurement program has been established by A/OPE. It is available on the A/OPE Internet and Intranet Web sites at
48. Section 625.102 is removed.
49. A new section 625.103 is added to read as follows:
(a) The authority to make the determination prescribed in FAR 25.103(a) is delegated, without power of redelegation, to the head of the contracting activity.
50. Section 625.105 is revised to read as follows:
(a)(1) The authority to make the determinations prescribed in FAR 25.105(a)(1) is delegated, without power of redelegation, to the head of the contracting activity.
51. Section 625.108 is removed.
52. Section 625.202 is revised to read as follows:
(a)(1) The authority to make the determination prescribed in FAR 25.202(a)(1) is delegated, without power of redelegation, to the head of the contracting activity.
53. Section 625.203 is removed.
54. Section 625.204 is revised to read as follows:
(b) The head of the contracting activity is the agency head for the purposes of FAR 25.204(b).
55. Subpart 625.3, consisting of sections 625.300, 625.300-70, 625.302, and 625.304 is removed and reserved.
56. Subpart 625.7, consisting of section 625.703, is removed.
57. Part 626, consisting of Subpart 626.2 and section 626.200-70, is removed.
58. Section 628.203 is amended in paragraph (g) by removing the words “Office of the Inspector General” and inserting the words “Assistant Inspector General for Investigations” in their place.
59. Subpart 628.70, consisting of section 628.7001, is removed.
60. A new Part 630 is added to read as follows:
(a) The Procurement Executive is the head of the agency for the purposes of FAR 30.201-5(a) and (b).
61. Section 632.006-2 is amended by removing the words “Assistant Inspector General for Investigations” and inserting the words “Procurement Executive” in their place.
62. Subpart 632.4 is amended by revising the Subpart heading to read as follows:
63. Section 632.903 is removed.
64. A new section 632.906 is added to read as follows:
(a)
65. Section 636.101-70 is revised to read as follows:
Contracts for overseas construction, including capital improvements, alterations, and major repairs, may be excepted where necessary from the provisions of the FAR (48 CFR Chapter 1) under the authority of section 3 of the Foreign Service Buildings Act of 1926, as amended (22 U.S.C. 294). The Director/Chief Operating Officer of the Bureau of Overseas Buildings Operations is authorized to approve such exceptions.
66. Sections 636.104, 636.104-70 and 636.104-71, are added to read as follows:
(a)
(1) American-owned firms; or
(2) Firms from countries which permit or agree to permit substantially equal access to American firms for comparable diplomatic and consular building projects.
(b)
(1) Host-country firms where required by international agreement; or
(2) By the laws of the host country; or
(3) Where determined by the Secretary of State to be necessary in the interest of bilateral relations or necessary to carry out the construction project.
(c)
(a)
(1) Diplomatic construction or design projects abroad exceeding $10 million; or,
(2) Diplomatic construction projects abroad at any dollar amount that involve technical security, unless the project involves low-level technology.
(b)
(c)
67. Section 636.202 is added to read as follows:
(d) The Director/Chief Operating Officer of the Bureau of Overseas Building Operations is the head of the agency for the purposes of FAR 36.202(d)(3) and (4).
68. Section 636.513 is amended by adding the following sentence to the end of paragraph (a):
(a) * * * The contracting officer shall confer with OBO/OM/SHEM if there are any questions on any factors listed in paragraph (4) of the clause, or if the contracting officer has any questions regarding construction safety issues.
69. Section 636.570 is added to read as follows:
(a) The contracting officer shall insert the provision at 652.236-71, Foreign Service Buildings Act, As Amended, in all contracts exceeding $5,000,000 for the construction, alteration, or repair of buildings and grounds overseas, unless:
(1) An international agreement with or laws of the host country government permits or limits the participation to host-country firms; or,
(2) The Secretary of State determines that it is necessary to the interest of bilateral relations or to carry out the project to either permit or limit the participation to host-country firms; or,
(3) The provision at DOSAR 652.236-72 applies.
(b) The contracting officer shall insert the provision at 652.236-72, Statement of Qualifications for the Omnibus Diplomatic Security and Antiterrorism Act, in all diplomatic construction or design solicitations exceeding $10 million; or, diplomatic construction projects abroad at any dollar amount that involve technical security, unless the project involves low-level technology, as determined by the Assistant Secretary of Diplomatic Security.
70. Section 636.602-4 is removed.
71. Section 637.102, and section 637.102-70 are added to read as follows:
(a)
(b)
72. Section 637.104-70 is amended by removing the words “Office of Foreign Buildings” and inserting the words “Bureau of Overseas Buildings Operations” in their place, and by removing the words “and the Moscow Embassy Buildings Control Office” in paragraph (f).
73. Section 637.110 is amended by adding a new paragraph (d) to read as follows:
(d) The contracting officer shall insert the provision at 652.237-73, Statement of Qualifications for Preference as a U.S. Person, in all overseas local guard solicitations.
74. A new Subpart 637.6, consisting of section 637.601, is added to read as follows:
It is the Department's policy that all new service contracts be performance-based, with clearly defined deliverables and performance standards. Any deviations from this policy shall be fully justified in writing and approved by the Departmental Competition Advocate.
75. Section 642.271 is redesignated as section 642.272. A new section 642.271 is added to read as follows:
(a)
76. Subpart 642.15, consisting of sections 642.1503 and 642.1503-70, is added to read as follows:
(a) The Department of State subscribes to the Contractor Performance System (CPS) maintained by the National Institutes of Health. CPS is an Internet-based tool allowing contracting officers to input past performance information and view past performance information input by other contracting officers in other locations and agencies.
(b) All DOS contracting officers with access to the Internet shall use CPS to evaluate contractor's past performance for all contracts exceeding $100,000, including options. Contracting officers shall also use the CPS to evaluate the past performance of offerors on all competitive negotiated acquisitions exceeding $100,000, including options, unless the contracting officer documents in the contract file why past performance is not an appropriate evaluation factor. The CPS may also be used for evaluating acquisitions not exceeding $100,000 to conform to the general principle of considering past performance in all acquisitions.
(c) Form DS-1771,
(1) When the CPS is temporarily unavailable. When the CPS becomes available, data from any DS-1771 created in the interim shall be promptly entered into the CPS; or
(2) At overseas locations where access to the Internet is not practicable.
(d) Heads of contracting activities shall send a list of the names, work addresses, and phone numbers of all acquisition personnel whom they wish to have access to the CPS to A/LM/AQM.
77. Section 651.701 is amended by removing the last sentence of paragraph (c).
78. Section 652.216-70 is amended by revising the clause date and by revising paragraph (b) to read as follows:
(b) The DS-2076,
79. Section 652.219-70 is revised to read as follows:
As prescribed in 619.708-70, insert a provision substantially the same as follows:
(a) The offeror shall provide a Small, Small Disadvantaged, Woman-Owned Small, HUBZone Small, and Service-Disabled Veteran-Owned Small Enterprise Subcontracting Plan that details its approach to selecting and using Small, Small Disadvantaged, Woman-Owned Small, HUBZone Small, and Service-Disabled Veteran-Owned Small Business Enterprises.
(b) For the fiscal year [insert appropriate fiscal year], the Department's subcontracting goals are as follows:
80. Section 652.219-72 is added to read as follows:
As prescribed in 619.202-70(o)(1), insert the following provision:
(a) Large and small businesses are encouraged to participate in the Department of State Mentor-Protégé Program. Mentor firms provide eligible small business protégés with developmental assistance to enhance their business capabilities and ability to obtain Federal contracts.
(b) Mentor firms are large prime contractors or eligible small businesses capable of providing developmental assistance. Protégé firms are small businesses, as defined in 13 CFR parts 121, 124, and 126.
(c) Developmental assistance is technical, managerial, financial, and other mutually beneficial assistance that aids protégés. Firms interested in participating in the program are encouraged to contact the Department of State OSDBU for further information.
81. Section 652.219-73 is added to read as follows:
As prescribed in 619.202-70(o)(2), insert the following clause:
(a) Mentor and protégé firms shall submit an evaluation to the Department of State's OSDBU at the conclusion of the mutually agreed upon program period, the conclusion of the contract, or the voluntary withdrawal by either party from the program, whichever occurs first. At the conclusion of each year in the mentor-protégé program, the prime contractor and protégé will formally brief the Department of State Mentor-Protégé Program Manager regarding program accomplishments under their mentor-protégé agreement.
(b) A mentor or protégé shall notify the OSDBU and the contracting officer, in writing, at least 30 calendar days in advance of the effective date of the firm's withdrawal from the program. A mentor firm shall notify the OSDBU and the contracting officer upon receipt of a protégé's notice of withdrawal from the program.
82. Section 652.226-70 is removed.
83. Section 652.228-70 is removed and reserved.
84. Section 652.236-70 is amended—
a. By revising the date of the clause;
b. By revising paragraph (a)(4) to read as set forth below; and
c. By revising paragraph (d)(1) to read as set forth below:
(a) * * *
(4) For overseas construction projects, the contracting officer shall specify in writing additional requirements regarding safety if the work involves:
(i) Scaffolding;
(ii) Work at heights above two (2) meters;
(iii) Trenching or other excavation greater than one (1) meter in depth;
(iv) Earth moving equipment;
(v) Temporary wiring, use of portable electric tools, or other recognized electrical hazards. Temporary wiring and portable electric tools require the use of a ground fault circuit interrupter (GFCI) in the affected circuits; other electrical hazards may also require the use of a GFCI;
(vi) Work in confined spaces (limited exits, potential for oxygen less than 19.5 percent or combustible atmosphere, potential for solid or liquid engulfment, or other hazards considered to be immediately dangerous to life or health such as water tanks, transformer vaults, sewers, cisterns, etc.);
(vii) Hazardous materials—a material with a physical or health hazard including but not limited to flammable, explosive, corrosive, toxic, reactive or unstable, or any operations which create any kind of contamination inside an occupied building such as dust from demolition activities, paints, solvents, etc.; or
(viii) Hazardous noise levels.
(d) * * *
(1) Submit a written plan to the contracting officer for implementing this clause. The plan shall include specific management or technical procedures for effectively controlling hazards associated with the project; and
85. Section 652.236-71 is added to read as follows:
As prescribed in 636.570(a), insert the following provision:
(a) This solicitation is subject to Section 11 of the Foreign Service Buildings Act of 1926, as amended (22 U.S.C. 302). This statute limits competition under this solicitation to:
(1) American-owned firms, as described in paragraph (b) of this provision; and
(2) Firms from countries that permit or agree to permit substantially equal access to American firms for comparable diplomatic and consular building projects.
(b) To qualify as an American-owned firm for purposes of this solicitation, the bidder/offeror must demonstrate evidence of:
(1) Performance of similar construction work in the United States; and
(2) Either—
(i) Ownership in excess of 50% by U.S. citizens or permanent residents; or
(ii) Incorporation in the United States for more than three (3) years and employment of U.S. citizens or permanent residents in more than half of the company's permanent full-time professional and managerial positions in the United States.
(c) For purposes of determining competitive status, offers submitted by American-owned firms shall be reduced by ten (10) percent, provided that two responsible bidders/offerors submit a bid/offer.
(d)
(2) Corporate location or ownership.
(i) The bidder/offeror certifies that it ☐ is ☐ is not owned in excess of fifty (50) percent by United States citizens or permanent residents.
(ii) The bidder/offeror certifies that it ☐ has ☐ has not been incorporated in the United States for more than three years and that it ☐ employs ☐ does not employ United States citizens or permanent residents in more than half of its permanent full-time professional and managerial positions in the United States.
(e) By signing this bid/offer, the bidder/offeror certifies to the best of its knowledge, all of the representations and certifications provided in this provision are accurate, current and complete.
86. Section 652.236-72 is added to read as follows:
As prescribed in 636.570(b), insert the following provision:
(a) This solicitation is subject to Section 402 and Section 406(c) of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (P.L. 99-399; 22 U.S.C. 4852). The Act limits certain construction projects abroad to United States persons or United States joint venture persons, and excludes organizations that have business arrangements with Libya. This Statement of Qualifications shall be used to determine if a bidder/offeror meets the definition of a “United States person” or a “United States joint venture person” and whether they have any business arrangements with Libya that may disqualify them from participating in this solicitation.
(b)
(c)
(d)
Name and address of U.S. person organization providing this information:
The Statement of Qualifications shall provide information correctly applicable to the U.S. person whose qualifications are being certified, and shall not include information pertaining to corporate affiliates or subsidiaries. Organizations that wish to use the experience or financial resources of any other legally dependent organization or individual, including parent companies, subsidiaries, or other related organizations, must do so by way of a joint venture. A prospective bidder/offeror may be an individual organization or firm, a formal joint venture in which the co-venturers have reduced their arrangement to writing, or a
1.
Definitions for purposes of Section 402 determinations of eligibility—
2.
Definitions for purposes of Section 402 determinations of eligibility—
(i) Jurisdiction: _____ (
3.
(i) for more than 5 (five) years before the issuance date of the invitation for bids or request for proposals with respect to a construction project under subsection (a)(1); and,
(ii) for more than 2 (two) years before the issuance date of the invitation for bids or request for proposals with respect to a construction or design project abroad that involves technical security under subsection (a)(2).”
Definitions for purposes of Section 402 determinations of eligibility—
(i) On what date was the organization seeking eligibility incorporated or legally organized? ____
(ii) If this date is less than the required number of years before the issuance date, on the basis of what documentation does the organization seeking eligibility claim that it has been in business for the requisite period of time?_____ (Identify, and forward copies as an Attachment to this Statement. This material may include such items as certificates of incorporation, partnership agreements, resolutions of boards of directors,
4.
Definitions for purposes of Section 402 determination of eligibility—
If the prospective bidder/offeror's participation was as a partner or co-venturer, indicate the percentage of the project performed by the prospective offeror: _____%
5.
Definitions of purposes of Section 402 determination of eligibility—
6.
Definitions for purposes of Section 402 determinations of eligibility—
(i) Principal management positions in the United States:
(ii) For each individual reporting directly to the above-named Chief Operating Officer, list position, name, and citizenship:
(iii) Individual(s) expected to have primary management oversight responsibility for contract if it is awarded:
Definitions for purposes of Section 402 determinations of eligibility—
8.
Definitions for purposes of Section 402 determinations of eligibility—
9.
Definitions for purposes of section 406 eligibility—
Based on the foregoing, I hereby certify on behalf of this organization that it ☐ is ☐ is not doing business with Libya as those terms are used in section 406(c) of the Omnibus Diplomatic Security and Antiterrorism Act of 1986.
(e)
87. Section 652.237-71 is revised to read as follows:
As prescribed in 637.110(b), insert the following clause.
(a)
(1) The contractor shall obtain a Department of State building pass for all employees performing under this contract who require frequent and continuing access to Department of State facilities. The Bureau of Diplomatic Security, Office of Domestic Facilities Protection, shall issue passes. They shall be used for the purpose of facility access only, and shall not be used for any other purpose.
(2) The contractor shall submit a Visitor Authorization Request (VAR) Letter to the Bureau of Diplomatic Security, Information Security Programs Division, Industrial Security Branch (DS/ISP/INB) on its cleared employees containing the following information:
(i) Contractor employee's full name, social security number, and date of birth;
(ii) Contractor's company name;
(iii) Security clearance level;
(iv) Date the clearance was granted;
(v) Name of the contractor's Facility Security Officer;
(vi) Contracting Officer's Representative (COR); and
(vii) Contract number.
(3) DS/ISP/INB shall process and approve the VAR letter, if appropriate. The approved VAR letter shall be forwarded to the contractor for their records.
(4) The contractor employee shall hand-carry the following documentation to the Building Pass Office, Department of State, 520 23rd Street, NW., Courtyard of Columbia Plaza, Washington, DC:
(i) A Department of State sponsorship letter from the COR, addressing the following:
(A) The purpose for which the pass is being requested;
(B) The employee's valid security clearance level (reflected on the VAR);
(C) Contract number and period of performance;
(D) Type of access (24/7, normal business hours, escort authority or no escort authority granted); and
(E) Expiration date of building pass (1 year or 3 years);
(ii) Letter on company letterhead to accompany the application, containing the following information:
(A) The purpose for which the pass is being requested;
(B) Verification of employment;
(C) The employee's valid security clearance level; and
(D) Contract number and period of performance;
(iii) The DS-1838,
(b)
(1) The contractor shall obtain a Department of State building pass for all employees performing under this contract who require frequent and continuing access to Department of State facilities. The Bureau of Diplomatic Security, Office of Domestic Facilities Protection, shall issue passes. They shall be used for the purpose of facility access only, and shall not be used for any other purpose.
(2) The contractor shall submit the following paperwork, in original, to the Bureau of Diplomatic Security, Information Security Programs Division, Industrial Security Branch (DS/ISP/INB):
(i) SF-85P,
(ii) SF-85P/S,
(iii) DOS Credit Release, which may be obtained from DS/ISP/INB via mail or facsimile.
(3) DS/ISP/INB shall conduct a preliminary background check. If the background check is favorable, DS/ISP/INB will forward a letter to the company Facility Security Officer (FSO) notifying them that the individual may proceed to the Building Pass Office to continue the badging process. DS/ISP/INB will forward a copy of this letter to the Building Pass Office.
(4) When a contractor employee is approved to receive a building pass, he/she shall hand-carry the following documentation to the Contractor Building Pass Office, Department of State, 520 23rd Street, NW., courtyard of Columbia Plaza, Washington, DC. :
(i) A Department of State sponsorship letter from the COR, addressing the following:
(A) The purpose for which the pass is being requested;
(B) Whether or not the employee has a valid security clearance;
(C) Contract number and period of performance;
(D) Type of access (24/7, normal business hours, escort authority or no escort authority granted); and
(E) Expiration date of building pass (1 year or 3 years);
(ii) DS Form 1838,
(iii) Letter on company letterhead to accompany the application, containing the following information:
(A) The purpose for which the pass is being requested;
(B) Verification of employment;
(C) Whether or not the applicant has a valid security clearance; and,
(D) Contract number and period of performance;
(iv) Original SF-85P or a copy of the SF-85P, with an original signature and current date;
(v) Original SF-85P/S or a copy of the SF-85P/S, with an original signature and current date;
(vi) Copy of the DOS Credit Release, with an original signature and current date; and,
(vii) Original proof of U.S. citizenship, such as a birth certificate or valid U.S. passport. Non-U.S. citizens must submit a valid photo Immigration and Naturalization Service Employment Authorization Document (INS EAD).
(5) Applicants shall be fingerprinted at the Building Pass Office and the process for a building pass shall be initiated. The approval process shall take at least 48 hours. Applicants shall not return to the Building Pass Office until they receive notification from DS/ISP/INB that the process is complete. Once DS/ISP/INB receives notification from the Building Pass Office that a building pass can be issued, DS/ISP/INB shall notify the FSO and the COR that the applicant has been approved for initial contract performance.
(c)
(d) All contractor employees, both domestic and overseas, shall wear the passes in plain sight at all times while in Department of State buildings. All contractor employees shall show their passes, where appropriate, when entering these buildings and upon request of uniformed guards or any other authorized personnel.
(e) All passes shall be returned to the COR upon separation of the employee, or expiration or termination of the contract. Final payment under this contract shall not be made until all passes are returned to the COR.
88. Section 652.237-72 is amended by revising the date of the clause and by removing the words “the preceding Friday is observed; when any such day falls on a Sunday” and by inserting the words “or Sunday” in their place in the first sentence of paragraph (b).
89. Section 652.237-73 is added to read as follows:
As prescribed in 637.110(d), insert the following provision:
(a) This solicitation is subject to section 136 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C. 4864). The Act encourages the participation of United States persons and qualified United States joint venture persons in the provision of local guard services overseas, and provides for a preference for eligible offers.
(b)
(c)
(d)
Name and address of U.S. person organization providing this information:
The Statement of Qualifications shall provide information correctly applicable to the U.S. person whose qualifications are being certified, and shall not include information pertaining to corporate affiliates or subsidiaries. Organizations that wish to use the experience or financial resources of another organization or individual, including parent companies, subsidiaries, or local national or offshore organizations, must do so by way of a joint venture. The contract resulting from this solicitation shall not allow subcontracting. A prospective offeror may be a sole proprietorship, a formal joint venture in which the co-venturers have reduced their arrangement to writing, or a de facto joint venture with no written agreement. To be considered a “qualified joint venture person,” the joint venture must have at least one firm or organization that itself meets all the requirements of a U.S. joint venture person listed in Section 136. By signing this proposal, the U.S. person co-venturer agrees to be individually responsible for performance of the contract, notwithstanding the terms of any joint venture agreement.
1. Section 136(d)(1): “The term ‘United States person’ means a person which—(A) is incorporated or legally organized under the laws of the United States, including the laws of any State, locality, or the District of Columbia.”
Definitions for purposes of Section 136 determinations of eligibility—
2.
Definitions for purposes of Section 136 determinations of eligibility—
“Principal place of business” means the geographic location of the main office or seat of management of the prospective offeror. For purposes of this Statement, a prospective offeror shall identify only one principal place of business, and such location shall include at least the offices of the chief operating officer and headquarters staff. The named location must be a United States jurisdiction in which the prospective offeror may bring suit and be sued and in which service of process shall be accepted.
(i) Jurisdiction: _____
(ii) Type of return (
3.
Definitions for purposes of Section 136 determinations of eligibility—
(i) On what date was the organization seeking eligibility incorporated or legally organized? _____
(ii) If this date is less than two years before the issuance date, on the basis of what documentation does the organization seeking eligibility claim that it has been in business for the requisite period of time? _____ (Identify, and forward copies as an Attachment to this Statement).
4.
Definitions for purposes of Section 136 determination of eligibility—
5.
Definitions of purposes of Section 136 determination of eligibility—
(i) The fiscal year ending during the calendar year that includes the date of this solicitation.
(ii) The fiscal year ending in the calendar year immediately prior to the calendar year that includes the date of this solicitation.
(iii) The fiscal year ending in the calendar year two years before the calendar year that includes the date of this solicitation.
(iv) The fiscal year ending in the calendar year three years before the calendar year that includes the date of this solicitation.
(v) The fiscal year ending in the calendar year four years before the calendar year that includes the date of this solicitation.
An entity will be deemed to have met this requirement if the total cumulative business volume for the three years presented exceeds the contract price at time of award under this solicitation for the full term for which prices are solicited, including any option periods.
6.
Definitions for purposes of Section 136 determinations of eligibility—
(i) Principal management positions in the United States
(ii) For each additional corporate officer having principal responsibility for the day-to-day operations of the corporation, list position, name, and citizenship.
(iii) Individual(s) in the United States expected to have primary management oversight responsibility for contract if it is awarded:
Question 6(b): Number of permanent, full-time, currently encumbered personnel positions that are located in the United States (good faith estimates acceptable): ________
7.
Definitions for purposes of Section 136 determinations of eligibility—
8.
Definitions for purposes of Section 136 determinations of eligibility—
(e)
90. Section 652.242-70 is amended by removing “642.271” and inserting “642.272(a)” in its place in the clause prescription.
91. Section 652.242-73 is amended by removing “642.271(b)” and inserting “642.272(b)” in its place in the clause prescription and in Alternate 1.
92. Section 653.101-70 is amended by adding a sentence at the end reading as follows: “The State Department forms are available through the Department's intranet Web site at
93. Section 653.219-71 is added to read as follows:
As prescribed in 619.102-70(i), DS-4053 is prescribed for use in applying for an agreement under the Department of State Mentor-Protege Program.
94. Subpart 653.3, consisting of sections 653.300 and 653.303, is removed.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
Notice is hereby given that the USDA Forest Service and the Okanogan Public Utility District No. 1 (PUD) will jointly prepare an Environmental Impact Statement (EIS) that will evaluate alternatives to provide reliable electric power to the Methow Valley and improve electric distribution to customers in the lower Methow Valley. The project is located in Okanogan County, Washington. Although the proposed action does not involve Federal lands, two of the preliminary alternatives identified for this project involve a “hot” rebuild of the existing Loup-Loup electric transmission line. A “hot” rebuild would involve replacing the existing high-voltage transmission line and its poles while maintaining power in the existing lines. Approximately 4.5 miles of the 27 mile Loup-Loup transmission line is located on the Okanogan National Forest, approximately 12 miles west of the town of Okanogan. The proposed “hot” rebuild alternatives would require additional clearing of vegetation in the existing right-of-way (ROW) on National Forest System (NFS) lands. The proposed project will comply with direction in the 1989 Okanogan National Forest Land and Resource Management Plan (Forest Plan), as amended. The Forest Plan provides the overall guidance for management of NFS lands included in this proposal. In addition, the Loup-Loup line also traverses approximately one mile of Bureau of Land Management lands. The agencies invite written comments on the scope of this project. In addition, the agencies give notice of this analysis so that interested and affected individuals are aware of how they may participate and contribute to the final decision.
Comments concerning the scope of the analysis must be received by December 15, 2003. A public information and scoping meeting is proposed to be held in November to provide information about the project to the public and to allow people to comment on the project.
Submit written comments and suggestions concerning the scope of the analysis to Keith Rowland, Project Coordinator, Okanogan Valley Office, 1240 Second Avenue South, Okanogan, Washington 98840 [Phone: (509) 826-3067; E-mail:
Direct questions about the proposed action and EIS to Keith Rowland, Project Coordinator, Okanogan Valley Office, 1240 Second Avenue South, Okanogan, Washington 98840 [Phone: (509) 826-3067; E-mail:
The PUD is also a party to a general transfer agreement (GTA) with the Bonneville Power Administration (BPA) for providing transmission service to the Okanogan County Electric Cooperative (Co-op). The Co-op provides service to the upper Methow Valley including the towns of Winthrop and Mazama. BPA has notified the PUD that the reliability of the existing transmission system is below standard.
The alternatives currently under consideration are:
• The No-action alternative under which there would be no new powerline built and non “hot” rebuild of the existing Loup Loup line.
• The proposed Twisp/Pateros transmission line that would connect existing substations in Twisp and Pateros and involve construction of a new substation located along Highway 153 between Carlton and Methow in the Gold Creek area, as well as distribution improvements.
• A “hot” rebuild of the existing Loup-Loup transmission line that would include approximately 15 miles of new transmission line from Pateros to Gold Creek, as well as a new substation in the Gold Creek area. This new transmission line and substation are assumed to involve the same alignment and substation proposed for the Twisp/Pateros transmission line and substation.
• A “hot” rebuild of the existing Loup-Loup transmission line that would include an upgrade of distribution between Twisp and Pateros, but not a substation or the 15 miles of new line to Gold Creek.
• A new transmission line that would overbuild or follow the existing distribution line near the Methow River along the valley floor, including a new substation.
• A new transmission line along the valley floor that would be aligned to reduce the number of Methow River crossings associated with a route that overbuilds or follows the existing distribution line. This alternative would also include construction of a new substation.
• Identifying major issues to be analyzed in depth.
• Identifying issues that have been addressed by a relevant previous environmental analysis including the
• Identifying potential environmental effects of the alternatives identified to date.
• Identifying potential alternatives that meet the Purpose and Need of the project.
• Notifying interested members of the public of opportunities to participate through meetings, personal contacts, or written comment. Keeping the public informed through the media and/or written material (
A number of issues were identified in the public comment received on the
This notice of intent initiates the scoping process, which guides development of the EIS. The Forest Service is seeking public and agency comment on the proposed action to identify major issues to be analyzed in depth and assistance in identifying potential alternatives to be evaluated. Comments received to this notice, including the names and addresses of those who comment, will be considered part of the public record on this proposed action, and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that, under FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality. Where the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted, without name and address, within a specified number of days.
A draft EIS will be prepared for comment. Copies will be distributed to interested and affected agencies, organizations, and members of the public for their review and comment. The comment period on the draft EIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of a draft EIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the participating agencies in identifying and considering issues and concerns on the proposed action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
In the final EIS, the participating agencies are required to respond to comments and responses received during the comment period that pertain to the environmental consequences discussed in the draft EIS and applicable laws, regulations, and policies considered in making a decision regarding the proposal. The Forest Supervisor for the Okanogan and Wenatchee National Forest will be the Federal responsible official for this EIS and its Record of Decision. Should the selected alternative involve National Forest System lands, the Federal responsible official will document the decision and reasons for the decision in the Record Decision. That decision will be subject to Forest Service Appeal Regulations (36 CFR part 215).
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The National Marine Fisheries Service (NMFS) must be able to ensure that the total weight, species composition, and catch location for each delivery are reported accurately. This is accomplished through a catch-monitoring system that: allows for independent verification of catch weight, species composition and haul location data; ensures that all catch is weighed accurately; and provides a record of the weight of each delivery that may be audited by NMFS. Requirements include approval of scale types for use, inspection requests, scale tests, an inshore processor catch monitoring and control plan, and printed output from scales.
OMB Desk Officer: David Rostker, (202) 395-3897.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Materials Processing Equipment Technical Advisory Committee (MPETAC) will meet on December 4, 2003 at 9 a.m. in Room 6087B of the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials processing equipment and related technology.
1. Opening remarks and introductions.
2. Approval of minutes from previous meeting.
3. Presentation of papers and comments by the public.
4. Status on List Review.
5. Comments on machine tool license.
6. Review of MPETAC proposal on 5-axis large machine tools.
7. Review of MPETAC proposal on jig grinder machine tools.
The meeting will be open to the public and a limited number of seats will be available. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials two weeks prior to the meeting date to the following address: Ms. Lee Ann Carpenter, Advisory Committees MS: 1099D, Bureau of Industry and Security, U.S. Department of Commerce, Washington, DC 20230.
For more information contact Lee Ann Carpenter at (202) 482-2583.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Rescission of Antidumping Duty Administrative Review.
November 13, 2003.
Michele Mire or Howard Smith, 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) 482-4711 and (202) 482-5193, respectively.
On July 2, 2003, the Department of Commerce (the Department) published a notice of opportunity to request an administrative review of the antidumping duty order on industrial nitrocellulose from the United Kingdom covering the period July 1, 2002 through June 30, 2003 (68 FR 39511, 39512).
On August 19, 2003, pursuant to a request by the petitioner, Green Tree Chemical Technologies, Inc. (Green Tree), the Department initiated an administrative review of Imperial Chemical Industries PLC (ICI) and Troon Investments Limited (TIL), which are subject to the antidumping duty order on industrial nitrocellulose from the United Kingdom, for the period July 1, 2002 through June 30, 2003.
Section 351.213(d)(1) of the Department's regulations provides that a party that requests an administrative review may withdraw the request within 90 days after the date of publication of the notice of initiation of the requested administrative review. Since the notice of initiation of this administrative review was published on August 22, 2003, and Green Tree, the party requesting this administrative review, withdrew its request for review within 90 days after the date of publication of the notice of initiation, the Department is rescinding the administrative review of the antidumping duty order on industrial nitrocellulose from the United Kingdom for the period July 1, 2002 through June 30, 2003, in accordance with section 351.213(d)(1) of the Department's regulations.
This notice is in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and section 351.213(d)(4) of the Department's regulations.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before January 12, 2004.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Charles L. Cooper, Financial Services Division, Office of Constituency Services, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910 at 301-713-2396, ext. 213, or at
The respondents will be commercial fishing industry individuals, partnerships, and corporations that want to enter into Capital Construction Fund agreements with the Secretary of Commerce. Such agreements allow deferral of Federal taxation on fishing vessel income deposited into a fund for the respondent for use in the acquisition, construction, or reconstruction of a fishing vessel. Deferred taxes are recaptured by reducing an agreement vessel's basis for depreciation by the amount withdrawn from the fund for its acquisition, construction, or reconstruction. The information collected from agreement holders is used to determine their eligibility to participate in the Capital Construction Fund Program pursuant to 50 CFR part 259.
At the completion of the construction/reconstruction, a certificate to that effect must be submitted.
The information will be collected on forms: the Fishing Vessel Capital Construction Fund Application, the Interim Capital Construction Fund Agreement, and the Certificate of Construction/Reconstruction.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before January 12, 2004.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Trisha Culver at 562-980-4239 or at
Owners of vessels that fish for tuna in the eastern Pacific Ocean (bounded by the coast of the Americas, 40° N. lat., 40° S. lat., and 150° W. long.) were required to submit information about their fishing vessels in 2000 so that the United States could provide information for a vessel register being compiled under the terms of an Inter-American Tropical Tuna Commission (IATTC) recommendation approved by the Department of State under the Tuna Conventions Act. The National Marine Fisheries Service used existing sources of information to obtain most of the information needed, but vessel owners were required to provide some information as well as a picture of the vessel with its registration number showing. The vessel register is needed to support uniform monitoring of compliance with IATTC conservation and management recommendations that are implemented by member governments, including the United States. Once the initial information was provided, the only reporting requirement was to report changes in vessel characteristics, ownership or other information on the form. It is estimated that no more than 30 vessel owners would be subject to this requirement in any year. In addition, it is estimated that 20 reports will be needed annually for new vessels to be placed on the register.
Paper forms and pictures are submitted.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Receipt of application for modification
Notice is hereby given that J. David Whitaker, South Carolina Department of Natural Resources, P.O. Box 12559, Charleston, South Carolina 29422-2559, has requested a modification to scientific research Permit No. 1245.
Written or telefaxed comments must be received on or before December 15, 2003.
The modification request and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376; and
Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727) 570-5301; fax (727) 570-5320.
Written comments or requests for a public hearing on this request should be submitted to the Chief, Permits,
Comments may also be submitted by facsimile at (301) 713-0376, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Please note that comments will not be accepted by e-mail or other electronic media.
Jennifer Jefferies or Carrie Hubard, (301) 713-2289.
The subject modification to Permit No. 1245, issued on May 19, 2000 (65 FR 36666) is requested under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Permit No. 1245 authorizes the permit holder to capture, handle, flipper and PIT tag, blood and tissue sample, perform ultrasound and release 350 loggerhead (
Under the provisions of Section 401, Pub. L. 95-202 and DoD Directive 1000.20, the Department of Defense Civilian/Military Service Review Board has accepted an application on behalf of a group known as: “The U.S. Civilian Employees of CAT, Inc., Who Were Flight Crew Personnel (U.S. Pilots, Co-Pilots, Navigators, Flight Mechanics, and Air Freight Specialists) and Aviation Ground Support Personnel (U.S. Maintenance Supervisors, Operations Managers, and Flight Information Center Personnel) and Conducted Paramilitary Operations in Korea, French Indochina, Tibet and Indonesia From 1950 Through 1959; and U.S. Civilian Employees of Air America Who Were Flight Crew Personnel and Ground Support Personnel, as Described, and Conducted Paramilitary Operations in Laos from 1961 Through 1974, When the War in Laos Ended; and U.S. Civilian Employees of Air America Who Were Flight Crew Personnel and Ground Support Personnel, as Described, and Conducted Paramilitary Operations in Vietnam From 1964 Through 1975, When Saigon Was Evacuated and Air America Flight Operations Ceased.”
Persons with information or documentation pertinent to the determination of whether the service of this group should be considered active military service to the Armed Forces of the United States are encouraged to submit such information or documentation within 60 days to the DoD Civilian/Military Service Review Board, 1535 Command Drive, EE-Wing, 3rd Floor, Andrews AFB, MD 20762-7002. Copies of documents or other materials submitted cannot be returned.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice
The U.S. Corps of Engineers (COE), Wilmington District, Wilmington Regulatory Field Office has received a request for Department of the Army authorization, pursuant to section 404 of the Clean Water Act and section 10 of the Rivers and Harbor Act, from the Town of Emerald Isle for the relocation of Bogue Inlet Channel to protect residential homes and town infrastructures, and to place the dredged material on approximately 5.0 miles of beach for nourishment. The project is being proposed to move the main ebb channel in Bogue Inlet to a more central location between the west end of Bogue Banks and the east end of Bear Island (Hammocks Beach State Park). The main ebb channel through Bogue Inlet presently occupies a position juxtaposed to the west end of the Town of Emerald Isle and is causing severe erosion that threatens development in the subdivision known as The Pointe.
The relocation of the main ebb channel to a central location would restore the channel to a position it occupied in the late 1970s and eliminate the erosive impact of tidal currents on the east shoulder of the inlet. A portion of the material removed to relocate the main ebb channel would be used to close the existing channel with the balance of the material used to nourish the shoreline on the west end of the Town of Emerald Isle.
The channel through Bogue Inlet has been maintained by the COE for commercial and recreational boating interest since 1981. The COE is authorized to maintain the channel to a depth of 8 feet mean low water (mlw) over a width of 150 feet. Any changes in the location of the ebb tide delta channel would be consistent with this maintenance criteria.
The public hearing will be held at the Emerald Isle Parks and Recreation Community Center, at 7500 Emerald Isle Drive, in Emerald Isle, on December 8, 2003 at 6:30 p.m. Written comments on
Copies of comments and questions regarding the Draft EIS may be addressed to: U.S. Corps of Engineers, Wilmington District, Regulatory Division. ATTN: File Number 2001-00632, Post Office Box 1890, Wilmington, NC 28402-1890.
Questions about the proposed action and DEIS can be directed to Mr. Mickey Sugg, Wilmington Regulatory Field Office, telephone: (910) 251-4811.
1.
Secondary features of the proposed project includes using a portion of the dredged material to close the existing ebb channel with the balance of the material used to nourish approximately 24,000 linear feet (5.0 miles) of beach along the west end of the Town of Emerald Isle. In this regard, the Town of Emerald Isle presently has permits to nourish 51,100 (9.68 miles) of ocean shoreline using offshore borrow areas. Approximately 5.8 miles of this shoreline was nourished between January and March 2003. The Emerald Isle beach nourishment project is part of an island-wide project sponsored by Carteret County. The County project covers approximately 16.8 miles of ocean shoreline and begins at the east town limits of the Town of Pine Knoll Shores and ends at a point 8,000 feet (1.5 miles) east of Bogue Inlet.
2.
The material to be removed has a mean diameter of 0.30 mm, compared to 0.22mm native beach material, and contains 1.25% silt and minimal shell content.
Apart from the channel dimensions, the new channel must be position so that it does not cause adverse impacts on the adjacent shorelines or result in unacceptable loss of estuarine habitat. The selection of a channel location was based on detailed geomorphic analysis of the inlet and adjacent shorelines, conducted by Dr. William J. Cleary, University of North Carolina at Wilmington. The geomorphic analysis will utilize an assortment of aerial photographs of the inlet covering the period from 1938 to 2001. However the primary emphasis will be on changes in the inlet and the adjacent shorelines between 1973 and 2001. The geomorphic analysis consists of an evaluation of the following: (a) Location of the channel midpoint relative to the Pointe, (b) the orientation of the inlet's ebb tide delta channel, (c) the configuration of the ebb tide delta
Geomorphic analysis indicates that the cumulative shoreline changes on each island were averaged over 3,500 feet of shoreline immediately adjacent to the inlet. When the percent of the ebb tide delta on the Bogue Banks side is small, as is was between 1984 and 2001, the bar channel was located close to Bogue Banks and the portion of the delta on the Bogue Banks side was providing some degree of wave sheltering for the west end of the island. This particular ebb tide delta configuration resulted in a considerable amount of accretion along the 3,500-foot shoreline immediately east of the inlet while Bear Island experienced an almost mirror image response on its ocean shoreline, i.e. erosion. Even though the present ebb tide delta configuration is favorable for the extreme west end of Emerald Isle, the eastward migration of the inlet channel that led to the existing inlet configuration also caused the inlet shoreline of Bogue Banks (the Pointe shoreline) to erode. Not only has the Bogue Banks inlet shoreline eroded in response to the eastward movement of the channel, so has the Bear Island ocean and inlet shorelines. Based on these and numerous other comparisons, the preliminary results of the geomorphic analysis indicates that a centrally located channel, approximating the position and orientation of the channel in 1978, may be beneficial to the inlet shoreline on Bogue Banks (the Pointe shoreline) and the east end of Bear Island.
3.
The applicant's preferred alternative is to relocate the channel to a central location and to utilize the dredged material to nourish approximately 5.0 miles of beach.
4.
The COE has initiated consultation with the U.S. Fish and Wildlife Service under the Endangered Species Act and the Fish and Wildlife Coordination Act, and with the National Marine Fisheries Service under the Magnuson-Stevens Act and Endangered Species Act. Additionally, the EIS has assessed the potential water quality impacts pursuant to Section 401 of the Clean Water Act, and is coordinating with the North Carolina Division of Coastal Management (DCM) to determine the projects consistency with the Coastal Zone Management Act. The COE is coordinating closely with DCM in the development of the EIS to ensure the process complies with State Environmental Policy Act (SEPA) requirements, as well as the NEPA requirements. The Draft EIS has been designed to consolidate both NEPA and SEPA processes to eliminate duplications.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
In accordance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA), the U.S. Army Corps of Engineers (Corps), Sacramento District, is preparing a Draft Feasibility Report/Environmental Impact Statement/Environmental Impact Report (Feasibility Report/EIS/EIR) to evaluate the opportunities to reduce flood damages, restore wetland and riparian habitat, and support recreation adjacent to Grayson and Murderer's Creeks watershed, Contra Costa County, California. A reconnaissance study was funded under the Energy and Water Development Appropriations Bill of 2002. The Corps completed the resulting study in October 2002. The report found a Federal interest in reducing flood damages, restoring the ecosystem, and improving recreational opportunities in Contra Costa County. The basic study authority for the Walnut Creek watershed was provided under a House Resolution adopted on June 19, 1963.
The feasibility study will consist of two phases. Phase I will start with a public workshop designed to solicit input from the public and interested agencies on the nature and extent of issues to be addressed in the Draft Feasibility Report/EIS/EIR. It will conclude with a conference to present and discuss the detailed evaluation of existing and future conditions, including the comprehensive mapping of the flood plains, flood damages, and the identification of problems and opportunities associated with each watershed. Preliminary alternatives will be developed, evaluated, and screened. Important cultural and environmental resources in the study area along with the associated effects and mitigation requirements for each preliminary alternative will be considered during the evaluation. Federal interest in at least one preliminary alternative will be established.
Phase II will consist of further development of the preliminary alternatives including detailed designs, costs, and benefits. The project benefits associated with each final alternative plan will be evaluated. The Draft Feasibility Report/EIS/EIR will be completed in conjunction with additional public meetings. Upon the review and incorporation of the public feedback, the Final Feasibility Report/EIS/EIR will be published. The final report will be forwarded through the Corps' Headquarters to the Assistant Secretary of the Army (Civil Works) for transmission to the Office of Management and Budget.
A meeting is scheduled for Tuesday, November 18, 2003, at 7 p.m. at the Pleasant Hill Community Center, 320 Civic Drive, Pleasant Hill, California.
Send written comments and suggestions concerning this study to Ms. Melisa Helton, U.S. Army Corps of Engineers, Sacramento District, Attn: Planning Division (CESPK-PD-R), 1325 J Street, Sacramento, California 95814. Requests to be placed on the mailing list should also be sent to this address.
Ms. Melisa Helton, E-mail at
1.
2.
Flooding in the 1950's and 1960's spurred Contra Costa County to initiate additional flood control studies with the Corps of Engineers on Grayson and Murderer's Creeks. In both a 1973 and a 1992 Feasibility Report, no Federal interest was found due to insufficient economic benefits. As a result of flooding during the 1990's, local municipalities renewed efforts to resolve these flooding problems. The 1997 flood, an estimated 18-year event, caused damage to about 100 homes in the City of Pleasant Hill. In addition, the Federal Emergency Management Agency (FEMA) is currently revising the floodplain maps to include 700 homes within the 100-year floodplain.
3.
4.
Take notice that on October 30, 2003, ANR Pipeline Company (ANR), tendered for filing its Negotiated Rate Tariff Filing.
ANR's filing requests that the Commission approve two negotiated rate agreements between ANR and Enbridge Gas Distribution Inc. ANR requests that the Commission grant such approval effective November 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, Canyon Creek Compression Company (Canyon) tendered for filing to become part of its FERC Gas Tariff, Third Revised Volume No. 1, Tenth Revised Sheet No. 6 and First Revised Sheet No. 6A, to be effective December 1, 2003.
Canyon states that the purpose of this filing is to make a periodic adjustment in Canyon's rates under its cost-of-service tracking mechanism. This filing represents the second tracking filing under Section 37 of the General Terms and Conditions of Canyon's Tariff.
Canyon states that copies of the filing are being mailed to its customers and 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 Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing and approval negotiated rate agreements between CEGT and Tenaska Gas Storage, LLC, and Dynegy Marketing and Trade. CEGT has entered into agreements to provide park and loan service to both shippers under Rate Schedule PHS.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets to be effective November 1, 2003:
CEGT states that the purpose of this filing is to reflect the termination or expiration of certain negotiated rate transactions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, Columbia Gas Transmission Corporation (Columbia) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1 (Tariff), the following tariff sheets, with a proposed effective date of November 30, 2003:
Columbia states it is proposing to add the following sentence: “Transporter may separate the components of a previously combined Service Agreement under this Section into separate Service Agreements if Transporter determines that separation is necessary to ensure that the rates, terms, and conditions applicable to each component are distinctly maintained.” This proposed change, along with the tariff changes previously approved by the Commission in Docket No. RP03-579, will enable Columbia to provide shippers a source of flexibility while at the same time ensuring that existing shippers will not be adversely impacted by this change.
Columbia states that copies of its filing have been mailed to all firm customers, interruptible customers and affected 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 § 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 October 31, 2003, Distrigas of Massachusetts LLC (DOMAC) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheet, to become December 1, 2003:
DOMAC states that the purpose of this filing is to record semiannual changes in DOMAC's index of customers.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, Enbridge Pipelines (KPC) tendered for filing an Excess Interruptible Revenue Refund Report.
KPC states that the report is made pursuant to section 24.5 of the General Terms and Conditions of its FERC Gas Tariff, First Revised Volume No. 1. KPC has requested a waiver of the crediting provisions of section 24.5 in order to credit the amount otherwise refundable against the current balance of receivable from Missouri Gas Energy. In addition, KPC states that its tariff allows KPC to retain twenty percent of Kansas Gas Service's allocable share of any credits resulting from application of section 24.5 of its tariff.
KPC states that copies of its transmittal letter and appendices have been mailed to all affected customers and 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 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 November 3, 2003, High Island Offshore System, L.L.C. (HIOS), tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets listed in appendix A to the filing, with an effective date of January 1, 2004.
HIOS states that the purpose of its filing is to establish and implement a Gas Liquids Bank (NGL Bank) as a part of its tariff. HIOS further proposes that participation in the NGL Bank would be a condition of receiving service on HIOS. HIOS also states that the purpose of the NGL Bank is: (1) To mitigate inequities in gas processing economics that may occur on HIOS as a result of its commingling of gas streams that contain different liquefiable hydrocarbon compositions; and (2) to provide a new service to meet the needs of producers developing gas supply sources rich in liquefiable hydrocarbons.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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
On October 30, 2001, ALLETE, Inc., d/b/a Minnesota Power, licensee for the Winton Project No. 469, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 469 is located on the Kawishiwi River in St. Louis and Lake Counties, Minnesota.
The license for Project No. 469 was issued for a period ending October 31, 2003. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in Section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 469 is issued to Minnesota Power for a period effective November 1, 2003 through October 31, 2004, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before November 1, 2004, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under Section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Minnesota Power is authorized to continue operation of the Winton Project No. 469 until such time as the Commission acts on its application for subsequent license.
Take notice that on October 31, 2003, National Fuel Gas Supply Corporation (National) tendered for filing has part of its FERC Gas Tariff, Fourth Revised Volume No. 1, Fifty-Eighth Revised Sheet No. 9, with an effective date of November 1, 2003.
National states that Article II, sections 1 and 2 of the settlement provide that National will recalculate the maximum Interruptible Gathering (IG) rate semi-annually and monthly. Further, section 2, of Article II provides that the IG rate will be the recalculated monthly rate, commencing on the first day of the following month, if the result is an IG rate more than 2 cents above or below the IG rate as calculated under section 1 of Article II. National states that the recalculation produced as IG rate of $0.43 per dth. In addition, Article II, Section 1 states that any overruns of the Firm Gathering service provided by National shall be priced at the maximum IG rate.
National states that copies of this filing have been served upon all customers on the service list and 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 § 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 October 30, 2003, OkTex Pipeline Company (OkTex), tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets, with an effective date of July 1, 2003:
OkTex states that the filing is being made in compliance with the Commission's directives in Docket No. RP03-560-001.
OkTex states that the tariff sheets reflect the changes to OkTex's tariff that result from the North American Standards Board's (NAESB) consensus standards that were adopted by the Commission in its March 12, 2003, Order No. 587-R in Docket No. RM96-1-024 and the Recommendations in R02002 and R02002-2 of the NAESB Wholesale Gas Quadrant (WGQ). OkTex states that it will implement the NAESB consensus standards for July 1, 2003, business, and that the revised tariff sheets therefore reflect an effective date of July 1, 2003.
OkTex states that copies of the filing have been mailed to all affected customers and state regulatory commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. 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
On October 19, 2001, Pacific Gas and Electric Company, licensee for the Pit 3, 4, and 5 Project No. 233, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 233 is located on the Pit River in Shasta County, California.
The license for Project No. 233 was issued for a period ending October 31, 2003. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 233 is issued to Pacific Gas and Electric Company for a period effective November 1, 2003 through October 31, 2004, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before November 1, 2004, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Pacific Gas and Electric Company is authorized to continue operation of the Pit 3, 4, and 5 Project No. 233 until such time as the Commission acts on its application for subsequent license.
Take notice that on October 31, 2003, PG&E Gas Transmission, Northwest Corporation (GTN) tendered for filing to be part of its FERC Gas Tariff, Second Revised Volume No. 1-A, the following tariff sheets, with an effective date of November 1, 2003:
GTN states that these sheets are being filed to update GTN's reporting of negotiated rate transactions that it has entered into. GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested 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 Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, Southern LNG Inc. (SLNG) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following revised sheets, with an effective date of December 1, 2003:
SLNG states that the revised sheets are being filed in accordance with Section 24.2 of SLNG's Tariff to reflect changes in the electric power cost adjustment (EPCA) in SLNG's rates. SLNG proposes to lower the EPCA rate from $0.0352/Dth to $0.0305/Dth.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, Southern Natural Gas Company (Southern) tendered for filing as part of its FERC Gas Tariff, Seventh Revised Volume No. 1, the following revised tariff sheets to become effective December 1, 2003:
Southern states that the goal of the new quality standard is to maximize the availability and utilization of the Southern system without jeopardizing its operational integrity. The new quality standard achieved this goal through the implementation of several new procedures.
Southern has requested to place the new quality standard and related changes into effect on December 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 31, 2003, Trunkline Gas Company, LLC (Trunkline) tendered for filing its Annual Interruptible Storage Revenue Credit Surcharge Adjustment in accordance with Section 24 of the General Terms and Conditions of its FERC Gas Tariff, Third Revised Volume No.1.
Trunkline states that the purpose of this filing is to comply with section 24 of the General Terms and Conditions of its FERC Gas Tariff, Third Revised Volume No. 1 which requires that at least 30 days prior to the effective date of adjustment, Trunkline shall make a filing with the Commission to reflect the adjustment, if any, required to Trunkline's Base Transportation Rates to reflect the result of the Interruptible Storage Revenue Credit Surcharge Adjustment.
Trunkline further states that no adjustment is required to the Base Transportation Rates because the Surcharge Adjustment is less than one cent per dekatherm.
Trunkline states that copies of this filing are being served 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 Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. 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 October 30, 2003, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Third Revised Sheet No. 724, with an effective date of November 1, 2003.
Williston Basin states that it is submitting its non-conforming and/or negotiated Rate Schedule FT-1 service agreements associated with its Grasslands Pipeline Project in Docket Nos. CP02-37-000, et al.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be
Take notice that on October 31, 2003, Columbia Gulf Transmission Company (Columbia Gulf) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, with an effective date of November 30, 2003:
Columbia Gulf states it is making the filing to allow it to mutually agree with shippers, on a not unduly discriminatory basis, to combine multiple service agreements under the same rate schedule with varying terms of service for different contract demand quantities into a single service agreement for purposes of increased administrative ease in nominating daily service requirements on the pipeline. Columbia Gulf's proposed revisions are entirely voluntary on the shipper's part and will not expand or restrict any other shipper's existing firm service rights or obligations under any other provisions of Columbia Gulf's Tariff.
Columbia Gulf states that copies of this filing have been mailed to all firm customers, interruptible customers and affected 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 § 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
Notice is hereby given that a new docket prefix “MO” has been established to identify Issuances related to Market Oversight activities.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on October 29, 2003, the Deputy Secretary of the Department of Energy, by Rate Order No. WAPA-108, did confirm and approve on an interim basis, to be effective on December 31, 2003, the Western Area Power Administration's (Western) extension of the existing firm point-to-point transmission rate of $17.23/kilowattyear for the AC Intertie 500-kV transmission system, the firm point-to-point transmission service rate of $12.00/kilowattyear for the AC Intertie 230/345-kV transmission system, and the nonfirm point-to-point transmission service rate of 2.00 mills/kilowatthour for the AC Intertie 230/345/500-kV transmission system, effective December 31, 2003, and ending December 31, 2006.
The Deputy Secretary of the Department of Energy states that the rates for the AC Intertie Project will be in effect pending the Federal Energy Regulatory Commission's (Commission) approval of the extension of these or of substitute rates on a final basis.
Take notice that on October 29, 2003, Mountain View Power Partners III, LLC (Mountain View) filed with the Federal Energy Regulatory Commission (Commission) an application for Commission determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Mountain View states that it is a limited liability company organized under the laws of the State of Delaware and is a wholly owned subsidiary of PPM Energy, Inc. (PPM), an Oregon corporation. Mountain View states that PPM is a wholly owned subsidiary of PacifiCorp Holdings, Inc. (PHI), a Delaware corporation with general
Mountain View states that it is in the business of developing, and will construct, own, and operate an approximately 22.44-megawatt wind-powered electric generation facility in Riverside County, California (the Project). Mountain View states that the Project will be an eligible facility pursuant to Section 32(a)(2) of the Public Utility Holding Company Act of 1935, and as such, Mountain View will be engaged directly and exclusively in the business of owning and/or operating one or more eligible facilities and selling electric energy from the Project at wholesale at market-based rates.
Mountain View states that it has served a copy of this filing on the Securities and Exchange Commission, and on the California Public Utilities Commission, the Oregon Public Utility Commission, the Washington Utilities and Transportation Commission, the Utah Public Service Commission, the Idaho Public Utilities Commission, and the Wyoming Public Service Commission as “affected state commissions” under 18 CFR 365.2(b)(3).
Take notice that on October 29, 2003, Goldendale Energy Center, LLC (Goldendale) filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
Goldendale states that it is a Delaware limited liability company, and proposes to own and operate a nominal 248 megawatt combined-cycle power generation plant to be located in Goldendale, Washington, and sell the output at wholesale. Goldendale further states that copies of the application were served upon the U.S. Securities and Exchange Commission and Washington Utilities and Transportation Commission.
Take notice that on November 3, 2003, Texas-New Mexico Power Company (TNMP) filed a complaint under Section 206 of the Federal Power Act against El Paso Electric Company (EPE), seeking a Commission order directing EPE to allow TNMP to exercise its rollover rights under a pre-Order No. 888, bundled power sales agreement between TNMP and EPE. TNMP requests that the Commission act on its complaint under the fast-track processing procedures of Rule 206(h) of the Commission's Rules of Practice and Procedure, 18 CFR 385.206(h).
TNMP states that the complaint was served on El Paso Electric Company and the New Mexico Public Regulatory Commission.
Take notice that on October 28, 2003, Indianapolis Power & Light Company (Indianapolis Power), pursuant to the Commission's Order in Docket No. ER00-1026-000, tendered for filing its triennial market power update.
Indianapolis Power states that copies of the filing were served upon the parties designated on the official service list.
Take notice that on October 30, 2003, New York State Electric & Gas Corporation (NYSEG) tendered for filing pursuant to the Commission's April 28, 2003 Order in Docket No. ER03-587-000, FERC Rate Schedule 33 between NYSEG and Orange and Rockland Utilities, Inc. consistent with the requirements of Order No. 614.
Take notice that on October 30, 2003, New York State Electric & Gas Corporation (NYSEG) tendered for filing pursuant to the Commission's Order issued April 28, 2003 in Docket No. ER03-587-000, FERC Rate Schedule 35 between NYSEG and Consolidated Edison Company of New York, Inc. consistent with the requirements of Order No. 614.
Take notice that on October 30, 2003, New York State Electric & Gas Corporation (NYSEG), tendered for filing pursuant to FERC's April 28, 2003 Order in Docket No. ER03-587-000, FERC Rate Schedule 28 between NYSEG and NMPC consistent with the requirements of Order No. 614.
Take notice that on October 29, 2003, in compliance with the Commission's October 2, 2003 Order in Docket No. ER03-704-000 (Yankee Atomic Electric Company, 105 FERC ¶61,007 (2003), Yankee Atomic Electric Company submitted a revised Power Contract—Yankee Atomic Electric Company, Rate Schedule FERC No. 3.
Take notice that on October 29, 2003, Entergy Services, Inc., (Entergy) on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc., (collectively, the Entergy Operating Companies) filed a compliance filing incorporating revisions to the creditworthiness provisions of Entergy's Open Access Transmission Tariff as required by the Federal Energy Regulatory Commission's September 29, 2003 order, Entergy Services, Inc., 104 FERC ¶61,329, issued in Docket No. ER03-1140-000.
Take notice that on October 29, 2003, the New England Power Pool (NEPOOL) Participants Committee and ISO New England Inc. (ISO-NE), submitted for filing responses to certain data requests from the Commission. The responses amend the filing made on July 31, 2003 by NEPOOL and ISO-NE in Docket No. ER03-1141-000.
The NEPOOL Participants Committee states that copies of these materials were sent to the NEPOOL Participants, Non-Participant Transmission Customers and the New England state governors and regulatory commissions.
Take notice that on October 30, 2003, Midwest Energy, Inc. (Midwest) submitted for filing corrected FERC Rate Schedule No. 19, a Transmission Service Agreement between Midwest and the Kansas Electric Power Cooperative, Inc. (KEPCo) in compliance with the Commission's Order issued September 24, 2003 in Docket No. ER03-1172-000.
Midwest states that a copy of this filing was served upon the Kansas Corporation Commission and KEPCo.
Take notice that on October 28, 2003, Palama, LLC (Palama) filed an amendment to its application for market-based rates filed on September 4, 2003. Palama states that the amendment supplies additional information requested in an October 22, 2003 deficiency letter by the Commission including a properly designated Palama market-base rate schedule.
Take notice that on October 29, 2003, Williams Power Company, Inc. (WPC) submitted for filing an amendment to the Notice of Succession, filed September 12, 2003 in Docket No. ER03-1331-000.
Take notice that on October 28, 2003, Craven County Wood Energy limited Partnership (Craven) submitted supplemental materials in connection with its September 25, 2003 filing of an amendment to a Rate Schedule in Docket No. ER03-1379-000.
Take notice that on October 28, 2003, Nicor Energy, L.L.C. (Nicor) pursuant to § 35.15, 18 CFR 35.15, of the Commission's Regulations, filed with the Federal Energy Regulatory Commission an Amended Notice of Cancellation of Nicor's Market-Based FERC Electric Rate Tariff and all rate schedules and/or service agreements thereunder effective October 1, 2003.
Take notice that on October 30, 2003, Idaho Power Company (Idaho Power) submitted an amendment to its October 24, 2003 filing in Docket No. ER04-75-000.
Take notice that on October 28, 2003, Vermont Electric Cooperative, Inc. (VEC) tendered for filing its Initial Rate Filing and Request for Certain Waivers. VEC's filing includes a Power Transmission Contract between VEC and Central Vermont Public Service Corporation (CVPS) dated March 16, 1981, designated as FERC Rate Schedule No. 1.
CVPS, the Vermont Public Service Board, and the Vermont Department of Public Service were mailed copies of the filing.
Take notice that on October 28, 2003, PSI Energy, Inc. (PSI) tendered for filing under Section 205 of the Federal Power Act, an amendment to an interconnection agreement between Hoosier Energy Rural Electric Cooperative, Inc., Southern Indiana Gas and Electric Company and PSI.
PSI Energy, Inc. states that copies of this filing have been served on Hoosier Energy Rural Electric Cooperative, Inc., Southern Indiana Gas and Electric Company, and the Indiana Utility Regulatory Commission.
Take notice that on October 28, 2003, the New York Independent System Operator, Inc. (NYISO) submitted proposed revisions to it Open Access Transmission Tariff to addressing the method by which it charges third party suppliers of Station Power for Ancillary Services. The NYISO has requested that its filing be permitted to become effective on March 22, 2003.
The NYISO states that it has served a copy of this filing upon all parties that have executed service agreements under the NYISO's OATT and Services Tariff.
Take notice that on October 29, 2003, Xcel Energy Services Inc. (XES), on behalf of Northern States Power Company (NSP), submitted for filing a Generation Interconnection Agreement between NSP and Moraine Wind, LLC.
NSP requests the agreement to be accepted for filing effective November 4, 2002, and requests waiver of the Commission's notice requirements in order for the Agreements to be accepted for filing on the date requested.
Take notice that on October 29, 2003, Xcel Energy Services, Inc. (XES), on behalf of Northern States Power Company (NSP) submitted for filing a Generation Interconnection Agreement between NSP and Chanarambie Power Partners, LLC.
NSP requests the agreement be accepted for filing effective December 17, 2002, and requests waiver of the Commission's notice requirements in order for the Agreement to be accepted for filing on the date requested.
Take notice that on October 28, 2003, Mountain View Power Partners III, LLC (Mountain View III) filed with the Federal Energy Regulatory Commission (Commission) pursuant to Section 205 of the Federal Power Act an Application for an Order Accepting Initial Rate Schedule, which would allow Mountain View III to engage in the sale of electric energy and capacity at market-based rates. Mountain View III states it is engaged in the business of developing, and will construct, own, and operate, a 22.44-megawatt wind-powered generation facility located in Riverside County, California. Mountain View III states that it seeks certain waivers, blanket approvals, and authorizations under the Commission's regulations. Mountain View III also seeks expedited review and a waiver of the 60-day notice requirement under 18 CFR 35.3.
Take notice that on October 29, 2003, Central Vermont Public Service Corporation (Central Vermont) tendered
Central Vermont respectfully requests that the Commission allow the Revised Pages to become effective January 1, 2004, the date that the disposition of facilities is to be consummated.
Central Vermont states that copies of the filing were served upon Central Vermont's OATT customers, PSNH, CVEC, the Vermont Public Service Board, and the New Hampshire Public Utilities Commission.
Take notice, that on October 29, 2003, Southern California Edison Company (SCE) tendered for filing the Interconnection Facilities Agreement (Interconnection Agreement) between SCE and the City of Corona, California (Corona). SCE states that the Interconnection Agreement specifies the terms and conditions, pursuant to which SCE will design, construct, install, and own the Interconnection Facilities necessary to interconnect Corona's distribution system serving Corona's Wholesale Distribution Load at Corona Pointe and Corona Crossroads to SCE's Distribution System. SCE requests that the Interconnection Agreement become effective on October 15, 2003.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California, and Corona.
Take notice that on October 29, 2003, Watt Works LLC (Watt) tendered for filing a Notice of Cancellation of its Market-based Rate Authority granted in Docket No. ER97-2592-000.
Take notice that, on October 29, 2003, Northern/AES Energy, LLC (Northern) filed a Notice of Cancellation of its FERC Electric Tariff, Rate Schedule FERC No. 1 accepted under Docket No. ER93-445-000. Northern requests that this Notice of Cancellation be effective as of October 29, 2003.
Take notice that on October 30, 2003, Union Electric Development Corporation (UEDC) tendered for filing a Notice of Cancellation of its Market-based Rate Authority granted under Docket No. ER97-3663-000. UEDC request an effective date of September 17, 2003.
Take notice that on October 29, 2003, DC Tie, Inc. tendered for filing a Notice of Cancellation of its Market-based rate tariff originally granted under Docket No. ER91-435-000. DC Tie, Inc is requesting an effective date of October 28, 2003.
Take notice that on October 30, 2003, Deseret Generation & Transmission Co-operative, Inc. (Deseret) tendered for filing an amendment to First Revised Service Agreement No. 2 under Deseret's FERC Electric Tariff, Original Volume 1. Deseret states that the amendment includes an Agreement for Large Industrial Incentive Rate between Deseret and one of its members, Dixie-Escalante Rural Electric Association, Inc., implementing Deseret Rate Schedule DRAE-Wells. Deseret requests an effective date of November 1, 2003.
Deseret states that copies of this filing have been served upon Deseret's member cooperatives.
Take notice that on October 30, 2003, American Transmission Company LLC (ATCLLC) and the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) tendered for filing changes to Attachment O of the Midwest ISO(s Open Access Transmission Tariff, to modify the rate formula for calculating rates for transmission service within the ATCLLC transmission system. ATCLLC and the Midwest ISO request an effective date of January 1, 2004.
The Midwest ISO seeks waiver of the Commission(s regulations,18 CFR 385.2010 with respect to service on all required parties. The Midwest ISO states that it has electronically served a copy of this filing upon all Midwest ISO members, members representatives of Transmission Owners and Non-Transmission owners, the Midwest ISO Advisory Committee participants, as well as all state Commissioners within the region. The Midwest ISO also states it has posted this filing on its Internet site at
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
On September 4, 2003, the Director, Division of Hydropower Administration and Compliance, issued an order granting the licensee for the Columbia Hydroelectric Project No. 1875 an extension of time to comply with the requirements of Articles 202, 401, 406, 407, 411, 412 and 413 of the project license.
Pursuant to section 313(a) of the Federal Power Act, 16 U.S.C. 8251(a), a request for rehearing may be filed only by a party to the proceeding. In order for Conservation Groups to be a party to the proceeding, it must have timely filed motion to intervene pursuant to Rule 214 of the Rules of Practice and Procedure, 18 CFR 385.214.
Conservation Groups' rehearing request would be rejected in any event. With regard to post-licensing proceedings, the Commission only entertains motions to intervene where the filing entails a material change in the plan of project development or in the terms of the license, or would adversely affect the rights of property holder in a manner not contemplated by the license, or involves an appeal by an agency or entity specifically given a consultation role.
This notice constitutes final agency action. Request for rehearing by the Commission of this rejection notice must be filed within 30 days of the date of issuance of this notice, pursuant to 18 CFR 385.713.
The following notice of meeting is published pursuant to section 3(A) of the Government in the Sunshine Act (Pub. L. No 94-409), 5 U.S.C 552B:
Federal Energy Regulatory Commission.
November 13, 2003, 10 a.m.
Room 2C, 888 First Street, NE., Washington, DC 20426.
Open.
Agenda.
Items listed on the agenda may be deleted without further notice.
Magalie R. Salas, Secretary, Telephone (202) 502-8400. For a recording listing items stricken from or added to the meeting, call (202) 502-8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all papers relevant to the items on the agenda; however, all public documents may be examined in the Reference and Information Center.
The following notice of meeting is published pursuant to Section 3(a) of the Government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C. 552b:
Chairman Wood and Commissioners Massey and Brownell voted to hold a closed meeting on November 13, 2003. The certification of the General Counsel explaining the action closing the meeting is available for public inspection in the Commission's Public reference Room at 888 First Street, NW., Washington, DC 20426.
The Chairman and the Commissioners, their assistants, the Commission's Secretary and her assistant, the General Counsel and members of her staff, and a stenographer are expected to attend the meeting. Other staff members from the Commission's program offices who will advise the Commissioners in the matters discussed will also be present.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before January 12, 2004.
Send your comments, referencing docket ID number OA-2003-0007, to EPA online using EDOCKET (our preferred method), or by mail to: EPA Docket Center, Environmental Protection Agency, Office of Environmental Information (OEI) Docket, Mail Code 28221T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Karen V. Brown, Office of Policy, Economics and Innovation, National Center for Environmental Innovation, Office of Business and Community Innovation, Small Business Division, 1808T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 566-2816; fax number: (202) 566-2848; e-mail address:
EPA has established a public docket for this ICR under Docket ID number OA-2003-0007, which is available for public viewing at the Office of Environmental Information (OEI) 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 OEI Docket is (202) 566-1752. 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, Confidential Business Information (CBI), or other information whose public 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 laced in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's
This collection of information is mandatory under section 507(a), (d), and (e) of the Clean Air Act as amended in 1990, Pub. L. 101-549, November 15, 1990. This Act directs EPA to monitor the SBTCPs and to provide a report to Congress. This responsibility has been delegated to the EPA SBO. Response to the collection is not required to obtain or retain a benefit. Information in the annual Report to Congress is aggregated and is not of a confidential nature. None of the information collected by this action results in or requests sensitive information of any nature from the states.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. The
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, e.g., permitting electronic submission of responses.
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 (EPA).
Notice.
EPA Region 6 is soliciting Initial Proposals (IP) from tribes, universities, non-profits, and other entities as defined by the Safe Drinking Water Act (SDWA) interested in applying for Federal assistance for Native American water system operation and management training, and technical assistance (circuit rider) projects to develop, expand, or carry out a program for training persons for methods and occupations involving the public health aspects of providing Safe Drinking Water as authorized by the Safe Drinking Water Act section 1442, 42 U.S.C. 300j-1 on Indian Lands in Louisiana, New Mexico, Oklahoma, and Texas. Region 6 EPA estimates an incremental funding process with as much as $750,000 available per year for three-year cooperative agreements. Multiple awards may be made for various purposes (i.e., regulatory compliance support, operator training and certification, source water assessment and protection), based on specific applicant qualifications. Awards may range from $10,000 to $500,000 based on complexity of project. Awards are expected to be incrementally funded at a similar level each year for the duration of the project period, pending availability of monies allocated to Region 6 for Tribal Direct Implementation of the SDWA including funds from the Underground Injection Control Program, Tribal Drinking Water Operator Training and Certification, and Tribal Public Water System Capacity Development. EPA Region 6 estimates that a total amount of EPA funds for the three-year project period to be as much as $2,250,000, with approximately $350,000 of those funds going toward Tribal Source Water Assessment and Protection, $350,000 going toward Tribal Drinking Water Operator Training and Certification, and the remainder going toward compliance assistance and capacity development activities.
EPA will consider all proposals received on or before 12 p.m. midnight Central Standard Time December 29, 2003. IPs received after the due date will not be considered for funding.
IPs should be mailed to: Yulonda Davis (6WQ-AT), U.S. Environmental Protection Agency, Region 6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas 75202-2733. Overnight Delivery may be sent to the same address.
Yulonda Davis, Project Officer, by telephone at 214-665-7154 or by e-mail at
EPA Region 6's Water Quality Protection Division is requesting proposals from tribes, universities, non-profits, and other entities as defined by the SDWA for administration of Public Water Supply Supervision (PWSS) program for Tribal Direct Implementation.
The purpose of the Native American water system operation, and management training and technical assistance projects are to provide hands-on technical assistance in the operational and managerial aspects of managing drinking water facilities. Project work occurs mainly in the field, using a “circuit rider” approach for assisting tribes with drinking water compliance issues and technical issues which may impact drinking water quality.
Other project work includes providing/coordinating local classroom training for tribal operators, tribal utility directors, and other tribal environmental staff, and tribal officials, that range in subject matter through such topics as operator certification exam preparation, disinfection procedures, regulatory requirements, optimization and performance based training.
Additional project work includes support for developing and implementing Tribal Source Water Assessment and Protection programs and activities. Support will be provided to tribal water system staff and tribal environmental staff regarding the EPA Region 6 Source Water Assessment and Protection Programs. Where Source Water Assessments have been completed, support will be provided to interested tribes in completing comprehensive Source Water Protection Programs and activities, following the EPA Region 6 Source Water Protection protocol.
Assistance will be provided predominantly in New Mexico, especially for on-site assistance. Assistance will also be provided, when requested, to tribal water systems in Texas, Oklahoma, and Louisiana, but minimal travel is expected to these locations.
An organization whose IP is selected for Federal assistance must complete an EPA Application for Assistance, including the Federal SF-424 form (Application for Federal Assistance, see 40 CFR 30.12 and 31.10). Organizations who have an existing agreement under this program are eligible to compete for new awards.
Funding is authorized under the provisions of the SDWA section 1442, 42 U.S.C. 300j-1.
The regulations governing the award and administration of Public Water Supply Supervision Cooperative Agreements are in 40 CFR part 30 (for institutions of higher learning, hospitals, and other nonprofit organizations), and 40 CFR part 31 (for States, local governments, and interstate agencies).
Applicants requested to submit a full application will be required to comply with Intergovernmental Review requirements (40 CRF part 29) and the Quality Assurance requirements (40 CFR 30.54 and 31.45) if projects involve environmentally related measurements or data generation.
Total funding available for award by Region 6 is dependent on EPA's appropriation for Fiscal Years 2004, 2005, and 2006. There are estimates of as much as $750,000 per year for three-year cooperative agreements. Awards may range from $10,000 to $500,000. There are no cost share requirements for approved projects.
IPs should be no more than three pages with a minimum font size of 10 pitch in Wordperfect/Word or equivalent. Failure to follow the format or to include all requested information could result in the IP not being considered for funding. Full application packages should not be submitted at this time. It is recommended that confidential information not be included in this IP. The following format should be used for all IPs:
EPA Region 6 will award PWSS cooperative agreements on a competitive basis and evaluate IPs based on the following criteria:
(1) Applicant's demonstrated organizational commitment to providing tribal communities with technical assistance and access to resources, with the objective of increasing tribes' capacity, implementing tribes' own solutions to problems, and providing services in a culturally appropriate manner.
(2) Applicant's specific commitment and experience in the delivery of training and technical/managerial assistance to tribal communities consistent with Safe Drinking Water Act regulation, policy, and Region 6 Guidance.
(3) Applicant's ability to provide assistance with drinking water regulatory compliance monitoring (sampling and analysis), water system optimization, source water assessment and protection, and operator training and certification.
(4) Applicant's ability to maintain continuity of currently provided services to tribal communities without interruption and to work closely with EPA in day-to-day project operation.
(5) Applicant's ability to provide regional/local presence and full technical assistance services in all coverage areas (predominantly New Mexico, Oklahoma, Eastern and Southern Texas, and Northeastern Louisiana).
(6) Applicant's organizational and subject matter expertise resources for the coordination and provision of workshop and classroom training events in drinking water operations and management. Additionally, applicant's ability to provide such training for CEUs where appropriate.
(7) Applicant's ability to produce training literature, training modules, and informational brochures, using both in-house and outside resources in the areas of drinking water, utility management, source water assessment and protection, and systems operations and maintenance.
(8) Applicant's working familiarity with SDWA regulations, with a focus on key monitoring, reporting and public notice requirements of the Total Coliform Rule.
(9) Relationship of the proposed work to the priorities identified in this notice, and how well the proposed work
(10) Applicant's ability to transfer assistance and technologies (computer programs, global positioning systems, pocket PCs, etc.) to tribes, and ability to assist tribes in integrating drinking water activities, especially source water protection, into other environmental programs.
The IPs will be evaluated by regional staff. Each IP will be evaluated against the criteria listed above.
Final selection of IPs will be made by the evaluation team of the Drinking Water Section and State/Tribal Programs Section, EPA Region 6. Selected organizations will be notified in writing and requested to submit full applications. Applications, including workplans, are subject to EPA review and approval.
It is expected that unsuccessful applicants will be notified in writing.
Eligible applicants for assistance agreements under section 1442 of the SDWA are tribes, universities, non-profits, and other entities as defined by the SDWA. IPs received for projects outside of Region 6 will not be considered.
Please mail three copies of the IP(s).
Procedures located in 40 CFR 30.63 and part 31, subpart F.
It is expected that all the awards under this program will be cooperative agreements.
A description of the Agency's substantial involvement in cooperative agreements will be included in the final agreement.
This is the estimated schedule of activities for submission, review of proposals and notification of selections: December 29, 2003—Proposals due to EPA. January 12, 2004—Initial proposals selected for funding will be requested to submit a formal application package. January 27, 2004—Application and workplan must be postmarked to EPA.
Deadline extensions, if any, will be posted on the Region 6 Water Quality Protection Division, Assistance Programs Branch web site and not in the
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket identification (ID) number OPP-2003-0346, must be received on or before December 15, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Denise Greenway, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8263; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or 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
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
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 copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by FFDCA section 408(d)(3). The summary of the petition was prepared by the petitioner and represents the view of the petitioner. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received a pesticide petition (6F4632) transferred from Abbott Laboratories and from Valent BioSciences Corporation, 870 Technology Way, Libertyville, IL 60048, proposing pursuant to section 408(d) of the FFDCA,21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing permanent tolerances for residues of the biochemical pesticide aminoethoxyvinylglycine hydrochloride (aviglycine HCl), formerly designated as aminoethoxyvinylglycine (AVG), in or on the food commodities apple and pear at 0.08 part per million (ppm). EPA issued a final rule, published in the
Pursuant to section 408(d)(2)(A)(i) of the FFDCA, as amended, Abbott Laboratories submitted a summary of information, data, and arguments in support of their pesticide petition, which was published in the
Aminoethoxyvinylglycine hydrochloride (aviglycine HCl), which was previously designated as aminoethoxyvinylglycine (AVG), is a plant growth regulator used in the harvest management of apples and pears. Applied once a season at 4 weeks prior to the anticipated beginning of the normal harvest period, it is used at the rate of 50 grams active ingredient per acre.
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Consideration of a common mechanism of toxicity is not necessary at this time because there is no indication that toxic effects of aviglycine HCl would be cumulative with those of any other chemical compounds. Aviglycine HCl has a novel mode of action compared to other currently registered active ingredients. Therefore, Valent BioSciences Corporation believes it is appropriate to consider only the potential risks of aviglycine HCl in an aggregate risk assessment.
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Lifespan, and multigenerational studies on mammals, and acute and subchronic studies on aquatic organisms and wildlife did not reveal any definite immune or endocrine effects. An immunotoxicity study in rats at 0, 1.25, 5, and 15 mg a.i./kg bwt/day presented a NOAEL of 5 mg a.i./kg bwt/day based on decreased primary antibody (igM) response to sheep red blood cells, decreased absolute and relative thymus weights, and decreased body weight, food consumption and food efficiency at the high dose level. The LOAEL is 15 mg a.i./kg bwt/day. Any endocrine related effects would have been detected in this definitive array of required tests. The probability of any such effect due to agricultural uses of aviglycine HCl is considered negligible.
Time limited tolerances have been established for the residues of aminoethoxyvinylglycine hydrochloride (aviglycine HCl, formerly aminoethoxyvinylglycine (AVG)) in or on the following food commodities:
Temporary tolerances have been established for the residues of aminoethoxyvinylglycine hydrochloride (aviglycine HCl, formerly aminoethoxyvinylglycine (AVG)) in or on the following food commodities:
There are no codex maximum residue limits for use of aminoethoxyvinylglycine hydrochloride on apples or pears, or on any other crop.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before December 12, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should
Direct all PRA comments to Kim A. Johnson, Office of Management and Budget, Room 10236 NEOB, Washington, DC 20503, (202) 395-7232, or via fax at 202-395-5167 or via Internet at
For additional information or copies of the information collections contact Judith B. Herman at (202) 418-0214 or via Internet at
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Non-Vessel Operating Common Carrier Ocean Transportation Intermediary Applicants:
Non-Vessel Operating Common Carrier and Ocean Freight Forwarder Transportation Intermediary Applicants:
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 December 5, 2003.
Board of Governors of the Federal Reserve System, November 6, 2003.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
The time shown above are for the full Committee meeting. Subcommittee breakout sessions are scheduled for late in the afternoon of the first day and in the morning prior to the full Committee meeting on the second day. Agendas for these breakout sessions will be posted on the NCVHS Web site (URL below) when available.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458-4EEO (4336) as soon as possible.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services announces the following advisory committee meeting.
The NCVHS Subcommittee on Privacy and Confidentiality monitors developments in health information privacy and confidentiality on behalf of the full Committee and makes recommendations to the full Committee so that it can advise the Secretary on implementation of the health information privacy provisions of HIPAA.
The regulation and further information about it can be found on the Web site of the Office for Civil Rights, at
The first day of the meeting will be conducted as a hearing, in which the Subcommittee will gather information about the impact of the regulation on public health reporting and on health care providers, health plans and consumers. The Subcommittee will invite representatives of affected groups to provide information about how the regulation has affected the level of privacy and confidentiality for protected health information, best practices for implementation of the regulation, and information that might help to identify and resolve barriers to compliance. The format will include one or more invited panels and time for questions and discussion. The Subcommittee will ask the invited witnesses for examples of the effect the regulation has had on individuals and on entities subject to the regulation. The first day will also include a time period during which members of the public may deliver brief (3 minutes or less) oral public comment about the implementation of the regulation. To be included on the agenda, please contact Marietta Squire (301) 458-4524, by e-mail at
The second day of the meeting will be conducted in two parts. The first part will be a hearing in which the Subcommittee will gather information about the effects of the regulation on organizations involved in health research activities. The Subcommittee will invite representatives of affected groups to provide information about how the regulation has affected the level of privacy and confidentiality for protected health information, best practices for implementation of the regulation, and information that might help to identify and resolve barriers to compliance. The second part will consist of Subcommittee discussion of the testimony it has heard and deliberations about possible recommendations to the Secretary.
Persons wishing to submit written testimony only (which should not exceed five double-spaced typewritten pages) should endeavor to submit it by that date. Unfilled slots for oral testimony will also be filled on the days of the meeting as time permits. Please consult Ms. Squire for further information about these arrangements.
Additional information about the hearing will be provided on the NCVHS Web site at
Information about the content of the hearing and matters to be considered may be obtained from Kathleen H. Fyffe, Lead Staff Person for the NCVHS Subcommittee on Privacy and Confidentiality, Office of the Assistant Secretary for planning and Evaluation, U.S. Department of Health and Human Services, 440D Humphrey Building, 200 Independence Avenue, SW., Washington DC 20201, telephone (202) 690-7152, e-mail
Information about the committee, including summaries of past meetings and a roster of committee members, is available on the Committee's Web site at
Notice is hereby given that I have delegated to the Commissioner of Food and Drugs the authority, vested in the Secretary of the Department of Health and Human Services, under section 353 of the Public Health Service Act (42 U.S.C. 263a), as amended, to implement CLIA's complexity categorization provisions, which includes, but is not limited to the following:
(a) Interpreting the CLIA provisions related to complexity categorization;
(b) Holding public workshops and meetings on CLIA complexity categorization; and,
(c) Developing and issuing implementing rules and guidance for CLIA complexity categorization.
The existing delegation of authority to the Administrator, Centers for Medicare & Medicaid, concerning CLIA is unaffected.
This delegation is effective upon date of signature. In addition, I ratify and affirm any actions taken by the Commissioner of Food and Drugs or his subordinates which involved the exercise of the authorities delegated herein prior to the effective date of this delegation.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI)
Specifically, PHS found that Dr. Smith falsified and fabricated data involving research into the physical interaction of prostaglandin endoperoxide synthase-2 (PGHS-2) with cell membranes, and the effects of arachidonate and nonsteroidal anti-inflammatory drugs (NSAIDs) on PGHS-2 structure.
Dr. Smith committed scientific misconduct by falsifying and fabricating data for the following tables and figures in his 2000 doctoral dissertation and in a paper in the
I.
II.
III.
IV. Dissertation Table 8 entitled “EPR determined inter-nitroxide distances for NSAID and arachidonate complexes of PGHS-2 MBD mutants;'
V. Dissertation Table 9 entitled “Relative changes in inter-nitroxide distances for NSAID and arachidonate complexes compared to the unliganded enzyme;'
VI. Dissertation Table 10 entitled “Kinetic properties and NSAID sensitivities of PGHS-2 active site mutants;”
VII. Dissertation Table 12 entitled “Relative PGHS-2 protein incorporation of PGHS-2 into lipsomes of varying composition;”
IX. Dissertation Table 13 entitled “EPR determined inter-nitroxide distances for detergent solubilized and lipsome reconstituted PGHS-2 mutants;” and
X. Dissertation Figure 27 entitled “Lipid and activity profile of sucrose gradient fractions.”
The research misconduct was significant for several reasons. First, the
Dr. Smith has entered into a Voluntary Exclusion Agreement (Agreement ) in which he has voluntarily agreed:
(1) to exclude himself from serving in any advisory capacity to PHS including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant for a period of three (3) years, beginning on October 27, 2003;
(2) to exclude himself voluntarily from any contracting or subcontracting with any agency of the United States Government and from eligibility or involvement in nonprocurement programs of the United States Government defined as “covered transactions” in the debarment regulations at 45 CFR part 76 for a period of three (3) years, beginning on October 27, 2003. During the three (3) year period of voluntary exclusion, PHS grant funds may be used to pay for page charges for any written work currently being prepared for submission and/or publication on which Dr. Smith is listed as an author only if (i) such written work is unrelated to the misconduct findings described in the Agreement, (ii) Dr. Smith is not listed as first author, and (iii) the publication does not state that Dr. Smith was supported by a PHS grant. Dr. Smith must certify that all data supporting such written work is true and accurate to the best of his knowledge; and
(3) to submit a letter within 30 days of notification of this action to
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (301) 443-5330.
Comments and suggestions about the information collection described above should be directed to the following e-mail address at the Office of Information and Regulatory Affairs, Office of Management and Budget, Paper Reduction Project:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing final recommendations to revise the permitted daily exposures (PDEs) for two solvents, n-methylpyrrolidone (NMP) and tetrahydrofuran (THF), according to the maintenance procedures for the guidance for industry entitled “Q3C Impurities: Residual Solvents.” The final recommendations were reached under the auspices of the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH).
Submit written or electronic comments on guidance documents at any time.
Submit written comments on the analyses and recommendations to revise the PDEs for NMP and THF to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonisation of regulatory requirements. FDA has participated in many meetings designed to enhance harmonisation and is committed to seeking scientifically based, harmonized technical procedures for pharmaceutical development. One of the goals of harmonisation is to identify and then reduce differences in technical requirements for drug development among regulatory agencies.
ICH was organized to provide an opportunity for tripartite harmonisation initiatives to be developed with input from both regulatory and industry representatives. FDA also seeks input from consumer representatives and others. ICH is concerned with harmonisation of technical requirements for the registration of pharmaceutical products among three regions: The European Union, Japan, and the United States. The six ICH sponsors are the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labour, and Welfare; the Japanese Pharmaceutical Manufacturers Association; the Centers for Drug Evaluation and Research and Biologics Evaluation and Research, FDA; and the Pharmaceutical Research and Manufacturers of America. The ICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation of Pharmaceutical Manufacturers Associations (IFPMA).
The ICH Steering Committee includes representatives from each of the ICH sponsors and the IFPMA, as well as observers from the World Health Organization, the Canadian Health Protection Branch, and the European Free Trade Area.
In the
In 1999, ICH instituted a Q3C maintenance agreement and formed a maintenance EWG (Q3C EWG). The agreement provided for the reconsideration of solvent PDEs and allowed for minor changes to the tables and list that include the existing PDEs. The agreement also provided that new solvents and PDEs could be added to the tables and list based on adequate toxicity data. In the
In the
After consideration of the comments received, the EWG's recommendations to revise the PDEs for NMP and THF were submitted to the ICH Steering Committee and agreement was reached by the three participating regulatory agencies in September 2002.
The Q3C EWG received new toxicity data for the solvent NMP in late 1999. In February 2002, FDA made available for comment the EWG's draft recommendation for the revision of the PDE for NMP (67 FR 6542 at 6543). At the September 2002 ICH meeting, the Steering Committee agreed to the EWG's recommendation to keep NMP in Class 2. A PDE of 5.3 milligrams per day (mg/day) and a concentration limit of 530 parts per million (ppm) are being declared for this solvent.
The Q3C EWG reviewed new toxicity data for the solvent THF. In February 2002, FDA made available for comment the EWG's draft recommendation for the revision of the PDE for THF (67 FR 6542 at 6543). At the September 2002 ICH meeting, the Steering Committee agreed to the EWG's recommendation to move THF from class 3 to class 2. A PDE of 7.2 mg/day and a concentration limit of 720 ppm are being declared for this solvent.
The analyses and recommendations for NMP and THF are available for review at
The revised PDEs for the two solvents contained in the revised guidance “Q3C: Tables and List” represent the agency's current thinking on this topic. They do not create or confer any rights for or on any person and do not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the Q3C documents at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry (#147) entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: Repeat-Dose (90-Day) Toxicity Testing” (VICH GL31). This guidance has been developed by the International Cooperation on Harmonization of Technical Requirements for Registration of Veterinary Medicinal Products (VICH). The objective of this guidance is to establish recommendations for an internationally harmonized 90-day repeat-dose testing.
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of this guidance to the Communications Staff (HFV-12), Center for Veterinary Medicine (CVM), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests.
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Louis T. Mulligan, Center for Veterinary Medicine (HFV-153), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6984, e-mail:
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote the international harmonization of regulatory requirements. FDA has participated in efforts to enhance harmonization and has expressed its commitment to seek scientifically based harmonized technical procedures for the development of pharmaceutical products. One of the goals of harmonization is to identify and then reduce differences in technical requirements for drug development among regulatory agencies in different countries.
FDA has actively participated in the International Conference on Harmonization of Technical Requirements for Approval of Pharmaceuticals for Human Use for several years to develop harmonized technical requirements for the approval of human pharmaceutical and biological products among the European Union, Japan, and the United States. The VICH is a parallel initiative for veterinary medicinal products. The VICH is concerned with developing harmonized technical requirements for the approval of veterinary medicinal products in the European Union, Japan, and the United States, and includes input from both regulatory and industry representatives.
The VICH Steering Committee is composed of member representatives from the European Commission; European Medicines Evaluation Agency; European Federation of Animal Health; Committee on Veterinary Medicinal Products; the U.S. FDA; the U.S. Department of Agriculture; the Animal Health Institute; the Japanese Veterinary Pharmaceutical Association; the Japanese Association of Veterinary Biologics; and the Japanese Ministry of Agriculture, Forestry, and Fisheries.
Four observers are eligible to participate in the VICH Steering Committee: One representative from the government of Australia/New Zealand, one representative from the industry in Australia/New Zealand, one representative from the government of Canada, and one representative from the industry of Canada. The VICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation for Animal Health (IFAH). An IFAH representative also participates in the VICH Steering Committee meetings.
In the
A variety of toxicological evaluations are performed to establish the safety of veterinary drug residues in human food. The objective of this guidance is to establish recommendations for an internationally harmonized 90-day repeat-dose testing.
This document, developed under the VICH process, has been revised to conform to FDA's good guidance practices regulation (21 CFR 10.115). For example, the document has been designated “guidance” rather than “guideline.” Because guidance documents are not binding unless specifically supported by statute or regulation, mandatory words such as “must,” “shall,” and “will” in the original VICH documents have been substituted with “should” or “it is recommended.”
This guidance document represents the agency's current thinking on establishing the safety of veterinary drug residues in human food. This guidance does not create or confer any rights for or on any person and will not operate to bind FDA or the public. An alternative method may be used as long as it satisfies the requirements of applicable statutes and regulations.
As with all of FDA's guidances, the public is encouraged to submit written or electronic comments pertinent to this guidance. FDA will periodically review the comments in the docket and where appropriate, will amend the guidance. The agency will notify the public of any such amendments through a notice in the
Interested persons may submit to the Division of Dockets Management (see
Persons with Internet access may obtain copies of the guidance document entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: Repeat-Dose (90-Day) Toxicity Testing” (VICH GL31), from the CVM home page at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability for comments of a draft guidance document for industry (#159) entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: General Approach to Establish a Microbiological ADI” (VICH GL-36). This draft guidance has been developed for veterinary use by the International Cooperation on Harmonization of Technical Requirements for Registration of Veterinary Medicinal Products (VICH).
Submit written or electronic comments on the draft guidance by December 15, 2003 to ensure their adequate consideration in preparation of the final document. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the draft guidance to the Communications Staff (HFV-12), Center for Veterinary Medicine (CVM), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit written comments on the draft guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Louis T. Mulligan, Center for Veterinary Medicine (HFV-153), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6984, e-mail:
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote the international harmonization of regulatory requirements. FDA has participated in efforts to enhance harmonization and has expressed its commitment to seek scientifically based harmonized technical procedures for the development of pharmaceutical products. One of the goals of harmonization is to identify and then reduce differences in technical requirements for drug development among regulatory agencies in different countries.
FDA has actively participated in the International Conference on Harmonization of Technical Requirements for Approval of Pharmaceuticals for Human Use for several years to develop harmonized technical requirements for the approval of human pharmaceutical and biological products among the European Union, Japan, and the United States. The VICH is a parallel initiative for veterinary medicinal products. The VICH is concerned with developing harmonized technical requirements for the approval of veterinary medicinal products in the European Union, Japan, and the United States, and includes input from both regulatory and industry representatives.
The VICH steering committee is composed of member representatives from the European Commission, European Medicines Evaluation Agency, European Federation of Animal Health, Committee on Veterinary Medicinal Products, the United States' FDA, the U.S. Department of Agriculture, the Animal Health Institute, the Japanese Veterinary Pharmaceutical Association, the Japanese Association of Veterinary Biologics, and the Japanese Ministry of Agriculture, Forestry and Fisheries.
Four observers are eligible to participate in the VICH steering committee: One representative from the Government of Australia/New Zealand, one representative from the industry in Australia/ New Zealand, one representative from the Government of Canada, and one representative from the industry of Canada. The VICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation for Animal Health (IFAH). An IFAH representative also participates in the VICH steering committee meetings.
The VICH steering committee held a meeting on May 8, 2003, and agreed that the draft guidance document entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: General Approach to Establish a Microbiological ADI” (VICH GL-36) should be made available for public comment. This draft VICH guidance provides guidance for assessing the human food safety of residues from veterinary antimicrobial drugs with regard to effects on the human intestinal flora. The objectives of this guidance are as follows: (1) To outline the recommended steps in determining the need for establishing a microbiological ADI; (2) to recommend test systems and methods for determining no-observable adverse effect concentrations (NOAECs) and no-observable adverse effect levels (NOAELs) for the endpoints of health concern; and (3) to recommend a procedure to derive a microbiological ADI. It is recognized that different tests may be useful. The experience gained with the recommended tests may result in future modifications to this guidance and its recommendations.
FDA and the VICH Safety Working Group will consider comments about the draft guidance document. Information collection is covered under Office of Management and Budget (OMB) control number 0910-0032.
This draft document, developed under the VICH process, has been revised to conform to FDA's good guidance practices regulation (21 CFR 10.115).
The draft VICH guidance (#159) is consistent with the agency's current thinking on the general approach to establish a microbiological ADI. This guidance does not create or confer any rights for or on any person and will not operate to bind FDA or the public. An alternative method may be used as long as it satisfies the requirements of applicable statutes and regulations.
This draft guidance document is being distributed for comment purposes only and is not intended for implementation at this time. Interested persons may submit written or electronic comments regarding this draft guidance document. Written comments should be submitted to the Division of Dockets Management (see
Electronic comments may also be submitted electronically on the Internet at
Copies of the draft guidance document entitled “Studies to evaluate the safety of residues of Veterinary Drugs in Human Food: General Approach to Establish a Microbiological ADI” (VICH GL-36) may be obtained on
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to OMB under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, call the HRSA Reports Clearance Officer on (301) 443-1129.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Consolidated Health Center Program is administered by the Health Resources and Services Administration's (HRSA) Bureau of Primary Health Care (BPHC). Grant funding opportunities are provided for Health Centers under the Presidential Initiative to Expand Health Centers. These funding opportunities use the following application forms: New Access Point Funding (NAP) form, Service Area Competition (SCA) form, Non-Competing Continuation (NCC) form and Competing Continuation (CC) forms, the Service Expansion (SE) form and the Expanded Medical Capacity (EMC) form for Consolidated Health Centers. These application forms are used by new and current Health Centers to apply for funding.
The five-year President's Initiative to Expand Health Centers will significantly impact 1,200 of the Nation's neediest communities by creating new health center sites. Additional emphasis will be given to improving and strengthening existing sites and expanding existing centers.
BPHC will assist in achieving the Initiative through the various funding opportunities under this Initiative. This year's funding increase supported the development of an additional 100 new access points and 88 significantly expanded access point. New access points will be established by Health Centers targeting the neediest communities using successful Center models. Expanded capacity will be targeted to communities where an existing Health Center's ability to provide care falls short of meeting the full need for services to uninsured and underserved populations. Funding will be provided to Health Centers to support the staff needed to serve a substantial increase in users.
Estimates of annualized reporting burden are as follows:
Send comments to Susan G. Queen, Ph.D., HRSA Reports Clearance Officer, Room 14-33, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301) 443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The Scholarships for Disadvantaged Students (SDS) Program has as its purpose the provision of funds to eligible schools to provide scholarships to full-time, financially needy students from disadvantaged backgrounds enrolled in health professions and nursing programs.
To qualify for participation in the SDS program, a school must be carrying out
The estimated response burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
This notice amends Part R of the Statement of Organization, Functions and Delegations of Authority of the Department of Health and Human Services (DHHS), Health Resources and Services Administration (HRSA) (60 FR 56605, as amended November 6, 1995; as last amended at 68 FR 8515-8517, February 21, 2003). This notice is to announce the re-titling of the Office of Special Programs to the Special Programs Bureau and to amend the functional statement to include functions relating to the National Hospital Bioterrorism Preparedness Program, the Smallpox Emergency Personnel Protection Act Program and the Trauma-Emergency Medical Services Systems Program. Specifically, this notice establishes the Division of Health Care Emergency Preparedness (RR5) and the Smallpox Vaccine Injury Compensation Program Office (RR6) in the newly titled Special Programs Bureau (RR) as follows:
Provides the overall leadership and direction for the procurement, allocation, and transplantation of human organs and bone marrow; programmatic, financial and architectural/engineering support for construction/renovation programs; operation of the Department's Vaccine Injury Compensation Program and the State Planning Grants Program. Specifically: (1) Administers the Organ Procurement and Transplantation Network and the Scientific Registry of Transplant Recipients to assure compliance with Federal regulations and policies; (2) administers the National Marrow Donor Program in matching volunteer unrelated marrow donors for transplants and studying the effectiveness of unrelated marrow donors for transplants and related treatment; (3) develops and maintains a national program of grants and contracts to organ procurement organizations and other entities to increase the availability of various organs to transplant candidates; (4) manages the national program for compliance with the Hill-Burton uncompensated care requirement and other assurances; (5) directs and administers the Section 242 hospital mortgage insurance program (through inter-agency agreement with HUD) and HHS direct and guaranteed construction loan repayment program; (6) directs and administers an earmarked grant program for the construction/renovation/equipping of health care and other facilities; (7) directs and administers the National Vaccine Injury Compensation Program; (8) directs and administers the Smallpox Emergency Personnel Protection Act Program; (9) directs and administers the State Planning Grants Program; (10) directs and administers the National Hospital Bioterrorism Preparedness Program; and (11) directs and administers the Trauma-Emergency Medical Services Systems Program.
The Division of Health Care Emergency Preparedness (DHCEP) facilitates the development of State, territorial and municipal terrorism preparedness programs under grants and/or cooperative agreements to improve the Nation's health care systems to respond to any terrorism or other public health emergency event. Specifically, the Division, together with other components of the Agency; (1) serves as the national focus for leadership in and coordination of Federal, State, local and non-governmental efforts to define the readiness needs for any terrorism or other public health emergency event and to assist in the development of programs that address the problems; (2) analyzes or coordinates analysis of regional or national issues and problems and recommends responses to those problems through research, training, or other actions, as indicated; (3) develops, interprets, and disseminates policies, regulations, standards, guidelines, new knowledge, and program information for the various programs and services relevant to terrorism and emergency preparedness; (4) provides technical assistance and professional consultation to field and headquarters staffs, to State and local health personnel, to other Federal agencies, and to voluntary and professional organizations on all aspects of terrorism preparedness planning efforts; (5) establishes and maintains cooperative working relationships with voluntary, professional, and other relevant entities and serves as a focal point for communications to improve terrorism preparedness; (6) coordinates within this Agency and with other Federal program efforts to extend and improve comprehensive, coordinated services and promote integrated, state-based systems of care for this program; (7) administers a program of cooperative agreements and contracts to provide comprehensive approaches to improve
The Smallpox Vaccine Injury Compensation Program Office (SVICPO) administers all statutory authorities related to the operation of the Smallpox Emergency Personnel Protection Act (SEPPA). Specifically the SVICPO: (1) Evaluates petitions for compensation filed under the SEPPA through medical review and assessment of compensability for all completed claims; (2) processes awards for compensation made under the SEPPA; (3) promulgates regulations to revise the Smallpox Vaccine Injury Table; (4) develops and maintains all automated information systems necessary for program implementation; (5) provides and disseminates program information; and, (6) maintains a working relationship with other Federal and private sector partners in the administration and operation of the SEPPA.
All delegations and redelegations of authorities to officers and employees of the Health Resources and Services Administration which were in effect immediately prior to the effective date of this action will be continued in effect in them or their successors, pending further redelegation, provided they are consistent with this action.
This document is effective upon the date of signature.
Customs and Border Protection, Department of Homeland Security.
Notice of the decision of the United States Court of Appeals for the Federal Circuit in the matter of
On August 1, 2003, the United States Court of Appeals for the Federal Circuit (CAFC) issued its decision in the matter of
CBP began liquidating suspended entries and classifying incoming entries of merchandise in accord with the decision in the matter of
For questions regarding operational issues, contact Janet Labuda, Textile Enforcement and Operations Division, Office of Field Operations, 202-927-0414; for legal questions, contact Rebecca Hollaway, Textiles Branch, Office of Regulations and Rulings, 202-572-8814.
On February 19, 2002, the Court of International Trade (CIT) issued a decision in
On August 1, 2003, the Court of Appeals for the Federal Circuit (CAFC) reversed the decision of the CIT. The
Under 19 CFR 175.31, CBP is not required to publish notice to the public of a decision of the CAFC reversing a cause of action before the CIT under the provisions of section 516, Tariff Act of 1930, as amended (19 CFR 1516). However, due to the length of the controversy of the classification of textile costumes and the significant interest in this issue, CBP believes notice to the public of the reversal of this decision of the CIT is warranted. CBP will take no action on entries subject to this case until the appeal period has run. See 19 CFR 176.31(b).
Federal Emergency Management Agency (FEMA), Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice of open meeting.
FEMA announces the following open meeting.
This meeting will be open to the public with limited seating available on a first-come, first-served basis. See the Response and Security Procedures below.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This is a request to reinstate the information collection requirements for the grants application and reporting for Alaska Native/Native Hawaiian colleges and universities. These competitive grants promote CDEG eligible activities to expand their role and effectiveness in helping their communities with neighborhood revitalization, housing, and economic development.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2528-0206) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This application indicates to HUD a nonprofit's ability to successfully sponsor a multifamily housing project, motivation for sponsorship, and contractual relationships that exist between the for-profit entity and the nonprofit. And additional certification requirement is intended to indicate the independence of the involved housing consultant.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0057) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
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 propsoal.
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
Victor L. Vacanti, Operating Accountant, Multifamily Claims Branch, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-3423 ext. 2808 (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.
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.
January 12, 2004.
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
Kimberly Sanford-Munson, Office of Asset Management, Policy and Participation Standards Division, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-3730 ext. 5122 (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
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, request for comments.
The U.S. Fish and Wildlife Service will submit the collection of information listed below to OMB for approval under the provisions of the Paperwork Reduction Act. An estimate of the information collection burden is included in this notice. If you wish to obtain copies of the proposed information collection requirement, related forms, or explanatory material, contact the Service Information Collection Clearance Officer at the address listed below.
We will accept comments until January 12, 2004.
Send your comments on the requirement to Anissa Craghead, Information Collection Clearance Officer, U.S. Fish and Wildlife Service, ms 222-ARLSQ, 4401 N. Fairfax Drive, Arlington, VA 22203; (703) 358-2269 (fax); or
To request a copy of the information collection request, explanatory information, or related forms, contact Anissa Craghead at (703) 358-2445, or electronically to
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are submitting a request to OMB to approve: (1) The revision of the collection of information for many of the migratory bird and eagle applications (3-200-6 through 3-200-18, and 3-200-67 through 3-200-70); report forms 3-202-1 through 3-202-9, and forms 3-186 and 3-186A currently approved under OMB control number 1018-0022; and (2) the addition of forms 3-200-10b.2, and 3-202-10 through 3-202-13.
All of these forms are used by the Regional Migratory Bird Permit Offices. We are requesting a 3-year term of approval for this information collection activity. Federal agencies 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 number for this collection of information is 1018-0022.
Revisions to the currently approved forms include modifications of the format and content of the application forms so that they will be easier to understand and easier for the applicant to complete. Five new forms have been added to the information collection. The Special Canada Goose Permit Annual Report (form 3-202-10) and Eagle Depredation Permit Annual Report (form 3-202-11) forms will simplify the information collection process on the public in terms of reporting requirements for those permits. The Special Purpose Possession (Education) Acquisition and Transfer Request (form 3-202-12) will facilitate Service approval for acquisitions and transfers of birds held for education. The Migratory Bird Donation to Public Institution form (form 3-202-13) will provide a standard form for use by museums and other public scientific and educational institutions to document donations of dead birds salvaged by the general public and deposited with institutions. A completed form 3-202-13 would not be submitted to the Service, except upon special request to the repository institution. The Request for Permission to Release Contact Information About Federally Permitted Migratory Bird Rehabilitators (form 3-200-10b.2) will enable us to ask holders of migratory bird rehabilitation permits for permission to make contact information available to the general public. The new forms are noted in the table below.
The information obtained from the applications and report forms will be used by the Service to determine eligibility of applicants for permits they are requesting according to criteria in various Federal wildlife conservation laws, international treaties, and regulations on the issuance, suspension, revocation, or denial of permits, monitor permit compliance, and track species taken from the wild.
The information collection requirements in this submission implement the regulatory requirements of the Endangered Species Act (16 U.S.C. 1539), the Migratory Bird Treaty Act (16 U.S.C. 704), the Lacey Act (18 U.S.C. 42-44), the Bald and Golden Eagle Protection Act (16 U.S.C. 668), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (27 UST 108), and are contained in Service regulations in Chapter I, Subchapter B of Title 50 Code of Federal Regulations (CFR). Generic permit application and record keeping requirements shared by our permit-
We invite comments concerning this information collection on: (1) Whether the collection of information is necessary for the proper performance of our functions, including whether the information will have practical utility; (2) the accuracy of our estimate of the burden of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and, (4) ways to minimize the burden of the collection of information on respondents. This information collection is part of a system of records covered by the Privacy Act (5 U.S.C. 552(a)).
Fish and Wildlife Service, Interior.
Notice of availability.
The U.S. Fish and Wildlife Service (Service) announces that the final Comprehensive Conservation Plan (CCP) and Environmental Assessment (EA) is available for Big Stone, Detroit Lakes, Fergus Falls, Litchfield, Morris, and Windom WMDs. The CCPs were prepared pursuant to the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997, and the National Environmental Policy Act of 1969, and we describe how the Service intends to manage these districts over the next 15 years.
Implementation of the CCPs will not begin sooner than 30 days following the publication of this
Copies of the CCPs are available on compact diskette or hard copy, and you may obtain a copy by writing the applicable WMD: Big Stone Wetland Management District, Rural Route 1, Box 25, Odessa, MN 56276-9706; Detroit Lakes Wetland Management District, 26624 North Tower Road, Detroit Lakes, MN 56501-7959; Fergus Falls Wetland Management District, 21932 State Highway 210, Fergus Falls, MN 56537-7627; Litchfield Wetland Management District, 22274-615th Avenue, Litchfield, MN 55355-2900; Morris Wetland Management District, 43875-230th Street, Morris, MN 56267-9735; or Windom Wetland Management District, 49663 County Road 17, Windom, MN 56101-3026. Copies of the CCP can also be accessed and downloaded at the following Web site address:
The National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee
The WMD Waterfowl Production Areas purposes are: “* * * as Waterfowl Production Areas” subject to “* * * all of the provisions of such Act [Migratory Bird Conservation Act] * * * except the inviolate sanctuary provisions * * *” and “ * * * for any other management purpose, for migratory birds.”
The Minnesota WMDs are part of a unique natural ecosystem and an equally unique legacy of human partnership. Six WMDs are located in western Minnesota: Big Stone WMD, Detroit Lakes WMD, Fergus Falls WMD, Litchfield WMD, Morris WMD, and Windom WMD. These WMDs used a joint process to prepare the CCPs, resulting in six separate CCPs.
Wetland Management Districts are unique collections of land that are not national wildlife refuges, but are managed as part of the National Wildlife Refuge System. A WMD is the Federal administrative unit that is charged with acquiring, overseeing and managing Waterfowl Production Areas (WPAs) and easements within a multi-county area. Waterfowl Production Areas are wetlands and surrounding upland grasslands purchased by the Service to
Wetland Management Districts exemplify how partnerships can succeed in preserving habitat. From the Duck Stamp Act of 1934 to the Wetland Loan Act of 1961 to the Small Wetland Acquisition Program of 1962, the Service, and hunters, environmentalists, and communities have worked together to preserve land and wildlife. Funding for acquisition of WPAs comes in large part from funds generated through the Duck Stamp Act, making duck hunters a key partner in preserving critical habitat within the prairie pothole region.
When the Service buys land for the WMDs, it is the result of negotiation with a willing seller as well as the State of Minnesota, the local county and the township. Working with counties, the Service has established a goal for acres of acquisition in each WMD, and each county within each WMD has agreed to that goal. Prior to final acquisition approval by the State of Minnesota (through the Land Exchange Board, which is headed by the Governor), each tract is discussed and reviewed in detail with the commissioners of the county where the tract is located. (There are 28 counties within the six-district planning area.) Township boards are also informed of these proposed acquisitions and invited to attend and participate in the meeting with the county commissioners. The meetings are open to the public.
Wetland Management Districts are managed differently than national wildlife refuges. Waterfowl Production Areas are assumed to be open to the public unless closed for a specific reason. In Minnesota, WPAs are open to the Service's Big Six priority public uses: hunting, fishing, wildlife observation and photography, and environmental education and interpretation.
Big Stone WMD—The WMD was established in 1996 to acquire and manage lands under the Small Wetlands Acquisition Program within Lincoln and Lyon counties. It currently includes 11 WPAs covering 2,343 acres of fee title lands, 15 habitat and/or wetland easements covering 1,547 acres.
Detroit Lakes WMD—The 5 county WMD currently manages 41,615 fee acres on 163 WPAs and 320 easements covering 13,300 acres.
Fergus Falls WMD—The 5 county WMD currently manages 215 WPAs totaling 43,417 acres and 1,136 easements covering 113,525 acres.
Litchfield WMD—The 7 county WMD was established in 1978 and today manages 148 WPAs covering more than 33,000 acres of fee title lands, 453 easements covering 36,154 acres.
Morris WMD—The 8 county WMD, originally established in 1964 as the Benson WMD, manages 246 WPAs totaling 51,208 acres in fee title ownership and 646 easements encompassing 23,182 acres.
Windom WMD—The 12 county WMD was established in 1990. It includes 59 WPAs covering 12,669 acres of fee title lands, 51 easements covering over 1,847 acres.
Three management alternatives were considered: (1) Acquire no additional land and maintain management on current land; (2) Increase land holdings to goal acres and maintain current management practices (current management); and (3) Increase land holdings to goal acres and expand management for waterfowl, other trust species and the public (preferred alternative).
The CCP represents the preferred alternative and describes a future in which the Service continues to acquire land to reach the goal acres agreed to by the State of Minnesota and each County within the District. The WMDs will strive to preserve and maintain diversity and increase the abundance of waterfowl and other key wildlife species in the Northern Tallgrass Prairie Ecosystem. They will restore wetlands and prairie as habitat for migratory waterfowl. Our intent will be to increase the block size of WPAs from an average of 210 acres to benefit waterfowl species as well as grassland birds. Working with the Minnesota Department of Natural Resources, we will reintroduce native species on WPAs. Coordinated, standardized, cost-effective and defensible methods will be implemented for gathering and analyzing habitat and population data. Limited continued use of food plots and feeder cribs to support resident wildlife, notably white-tailed deer and pheasants will be allowed. The WMDs will work with other WMDs in Minnesota as well as neighboring states (Iowa, Wisconsin, South Dakota and North Dakota) to develop more consistency in policies for habitat, public use and resource protection. It is our goal to promote a greater understanding and awareness of the WMDs' programs, goals and objectives within the public, partnerships, tribes and government agencies.
Bureau of Indian Affairs, Interior.
Notice.
This notice advises the public that the Bureau of Indian Affairs (BIA), with the cooperation of the Bonneville Power Administration (BPA) and the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), intends to file a draft Environmental Impact Statement (DEIS) with the U.S. Environmental Protection Agency for the proposed Wanapa Energy Center, Umatilla County, Oregon, and that the DEIS is now available for public review. The purpose of the proposed project is to help provide for the economic development of the CTUIR and for the power needs of the Pacific Northwest. This notice also announces public hearings for the public to provide comments on the DEIS.
Written comments on the DEIS must arrive by December 29, 2003. Public hearings on the DEIS will be held December 3 and December 4, 2003, starting at 7 p.m.
You may hand carry written comments to the Umatilla Agency, 46807 B Street, Mission, Oregon, or mail them to Philip Sanchez, Superintendent, Bureau of Indian Affairs, Umatilla Agency, P.O. Box 520, Pendleton, OR 97801.
The December 3, 2003, public meeting will be in Pendleton, Oregon. The December 4, 2003, public meeting will be in Hermiston, Oregon. Exact addresses for the hearings will be determined at a later date. These may be obtained from the
To obtain a copy of the DEIS, please write to Jerry Lauer, Natural Resource Officer, Division of Natural Resources Management, U.S. Department of the Interior, Bureau of Indian Affairs, Umatilla Agency, P.O. Box 520,
Jerry Lauer, (541) 278-3790.
The proposed action is to lease Indian trust land upon which Diamond Wanapa ILP, CTUIR, the Eugene, OR, Water and Electric Board, the City of Hermiston, and the Port of Umatilla propose to jointly build and operate the Wanapa Energy Center, an approximately 1200 megawatt (Mw), natural gas-fired electric power generation plant that would provide electrical energy to the BPA grid system. The Center's design features two similar blocks of combined cycle, each having a nominal capacity of 600 Mw. A block would consist of (1) two combustion turbines; (2) two heat recovery steam generators (HRSG) that can be fired by auxiliary duct burners; (3) 180 foot exhaust stacks; (4) one steam turbine in a 2 by 1 configuration; and (4) associated plant equipment. The proposed project also would include a switch yard, cooling towers, storage tanks, natural gas supply pipeline, water supply pipeline, electrical power transmission line, and other related facilities. The plant would be constructed in two phases, each consisting of two gas turbines, two HRSGs, two stacks, one steam turbine, one cooling tower, three generators, and supporting facilities. The maximum plant output would be approximately 1,485 Mw.
Natural gas would be the sole fuel used for the combustion turbines and duct burners. This would be provided through a new, 9.9 mile lateral pipeline that would extend from a source in the vicinity of Stanfield, Oregon, approximately 10 miles north to the proposed project site. A new 500 kV electrical transmission line would extend from the project site to the McNary Substation on the Columbia River.
Water demand for the facility is estimated to be from 3 million gallons per day (about 2,500 acre-feet per year) at 600 Mw production to 6 million gallons per day (about 5,000 acre-feet per year) at 1200 Mw production. Pre-allocated municipal water would be obtained under the City of Hermiston's and the Port of Umatilla's allocated water supply from the Columbia River. Currently, the proposed power plant's blow-down water discharge location is the Feed Canal, approximately 5 miles south of the project site. The Feed Canal empties into Cold Springs Reservoir, approximately 1 mile downstream of the proposed discharge point. The water discharge pipeline would follow and be located with the proposed natural gas pipeline lateral to the discharge point.
In addition to the proposed action and no action, alternatives analyzed through the DEIS include routing options for the gas supply pipeline and transmission line. They are as follows:
Alternative 2-GSP is about 53,700 feet (10.17 miles) long. From the proposed power plant, the line would follow the proposed route for approximately 1,000 feet, at which point it would proceed due west for approximately 2,000 feet. It would then proceed about 4 miles due south to the Northwest Gas ROW and follow the existing line southeastward approximately 5.6 miles to interconnect with source pipelines at the Stanfield Compressor Station.
Alternative 2-TLR would be a 19,400-foot (3.67-mile) long single-circuit line. It would run northwest from the project site until it neared and paralleled the bluffs above the Columbia River, then traverse southwest into the substation. This alternative would be located in an entirely new ROW. Alternative 3-TLR would be about a 20,900-foot (3.96-mile) long single-circuit line. The route would traverse west from the project site until it passed McNary Beach Access Road, proceed north to where the Alternative 2 route turns southwest, then follow the Alternative 2 route into the substation.
The public has participated throughout the development of this DEIS. The Notice of Intent to prepare an EIS was filed in the
Comments, including names and addresses of respondents, will be available for public review at the mailing address shown in the
This notice is published in accordance with section 1503.1 of the Council on Environmental Quality Regulations (40 CFR parts 1500 through 1508) implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
National Park Service.
Notice.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, Pub. L. 91-190, 83 Stat. 852, 853, codified as amended at 42 U.S.C. 4332(2)(C), the National Park Service announces the availability of the Record of Decision for the General Management Plan, Carl Sandburg Home National Historic Site, North Carolina. On September 19, 2003, the Acting Regional Director, Southeast Region approved the Record of Decision for the project. As soon as practicable, the National Park Service will begin to implement the Preferred Alternative contained in the Final Environmental Impact Statement issued on July 23, 2003. The following course of action will occur under the preferred alternative:
In the preferred alternative, the park serves as a national focal point for learning about Carl Sandburg. Access to more in-depth information about his life and work at Connemara would be provided through an extensive internet database and other high technology mass media formats. Visitors who come to the site in person would find extraordinary opportunities to participate in interpretive programs. The selected alternative provides high quality museum space where visitors can gain additional access to information and objects currently housed in the museum preservation facility. Providing a high quality interpretive venue is considered an essential component of the alternative. Additional interpretive venues would be created by rehabilitating one or more historic structures near the main house or barn for interpretive program areas, renovating the existing Front Lake visitor information station to improve its interpretive and visitor services function, and creating a visitor interpretive center outside the current authorized boundary of the park. A Congressionally legislated boundary expansion of up to 110 acres would provide critical views and boundary protection. The location of the proposed 110 acre boundary expansion is illustrated in Chapter Two of the GMP/FEIS. Authorization to acquire approximately 3 to 5 acres for a 5,000 sf visitor center, parking for approximately 60 cars, and associated landscaping is also recommended. Given the unpredictable availability of funding and property, an exact location for the visitor center and parking area cannot be identified at this time; however, any selected site would be located west of Highway 25 and south of Little River Road in the Village of Flat Rock. Any property considered for acquisition by the National Park Service would be purchased under a willing seller/willing buyer arrangement, without the exercise of eminent domain.
This course of action plus three other alternatives were analyzed in the Draft and Final Environmental Impact Statements. The full range of foreseeable environmental consequences was assessed, and appropriate mitigating measures were identified.
The Record of Decision includes a statement of the decision made, synopses of other alternatives considered, the basis for the decision, a description of the environmentally preferable alternative, a finding of no impairment to park resources and values, measures to minimize potential environmental consequences, and an overview of public involvement in the decision-making process.
The Record of Decision for the General Management Plan and Final Environmental Impact Statement for Carl Sandburg Home National Historic Site was signed by the Acting Regional Director for the National Park Service Southeast Region on September 19, 2003.
Copies of the Record of Decision are available from the Superintendent, Carl Sandburg Home National Historic Site, 1928 Little River Road, Flat Rock, North Carolina, 28731.
Superintendent, Carl Sandburg Home National Historic Site, 1928 Little River Road, Flat Rock, North Carolina, 28731. Telephone: 828-693-4178.
Copies of the Record of Decision may be obtained from the contact listed above or online at
National Park Service.
Notice.
The National Park Service will prepare an Environmental Impact Statement on the General Management Plan for Abraham Lincoln Birthplace National Historic Site. This notice is being published in accordance with 40 CFR 1506.6. The statement will assess potential environmental impacts associated with various types and levels of visitor use and resources management within the National Historic Site. This General Management Plan/Environmental Impact Statement is being prepared in response to the requirements of the National Parks and Recreation Act of 1978, Pub. L. 95-625, and in accord with Director's Order Number 2, the planning directive for National Park Service units.
The National Park Service will conduct public scoping meetings in the local area to receive input from interested parties on issues, concerns, and suggestions pertinent to the management of Abraham Lincoln Birthplace National Historic Site. Representatives of the National Park Service will be available to discuss issues, resource concerns, and the planning process at each of the public meetings. Suggestions and ideas for managing the cultural and natural resources and visitor experiences at the park are encouraged. Anonymous comments will not be considered. 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. However, individual respondents may request that we withhold their names and addresses from the public record, and we will honor such requests to the extent allowed by law. If you wish to withhold your name and/or address, you must state that request prominently at the beginning of your comment.
Locations, dates, and times of public scoping meetings will be published in local newspapers and may
Scoping suggestions should be submitted to the following address to ensure adequate consideration by the National Park Service: Superintendent, Abraham Lincoln Birthplace National Historic Site, 2995 Lincoln Farm Road, Hodgenville, Kentucky 42748, Telephone: 270-358-3137, e-mail:
Superintendent, Abraham Lincoln Birthplace National Historic Site, 2995 Lincoln Farm Road, Hodgenville, Kentucky 42748, Telephone: 270-358-3137, e-mail:
Abraham Lincoln Birthplace National Historic Site is located about 3 miles south of Hodgenville, Kentucky, on U.S. Highway 31E and Kentucky Highway 61. The park was authorized on June 11, 1940, and now consists of more than 340 acres. The park was established in 1933 when it was transferred from the War Department to the National Park Service. The site contains a cabin, symbolic of the one in which Lincoln was born, preserved in a memorial building at the site of his birth. The Master Plan was completed in 1964 and in the ensuing years much has changed. A boundary change occurred in 1998, which added a Boyhood Home Unit to the park. This area contains the site of the Lincoln farm along with the field and surrounding woodland area belonging to that farm. Also the site contains a historic tavern and replica cabin. A General Management Plan and Environmental Impact Statement would provide the park with better guidance and direction in regard to management of natural and cultural resources and providing a quality visitor experience.
The plan will provide direction to correct existing management deficiencies through the establishment of management prescriptions, carrying capacities and appropriate types and levels of development and recreational use for all areas of the park. Resource protection, visitor experiences and community relationships will be improved through completion and implementation of the General Management Plan.
Public documents associated with the planning effort, including all newsletters, will be posted on the Internet through the Park's Web site at
The Draft and Final General Management Plan and Environmental Impact Statement will be made available to all known interested parties and appropriate agencies. Full public participation by federal, state, and local agencies as well as other concerned organizations and private citizens is invited throughout the preparation process of this document.
The responsible official for this Environmental Impact Statement is Patricia A. Hooks, Acting Regional Director, Southeast Region, National Park Service, 100 Alabama Street SW., 1924 Building, Atlanta, Georgia 30303.
United States International Trade Commission.
Rescheduling of public hearing.
November 5, 2003.
The public hearing on this matter, scheduled for December 4, 2003, has been rescheduled to December 11, 2003. The public hearing will be held at the U.S. International Trade Commission building, 500 E Street SW., Washington, DC, beginning at 9:30 a.m. on December 11, 2003. All interested persons will have the right to appear, by counsel or in person, to present information and to be heard. Requests to appear at the public hearing should be filed with the Secretary, United States International Trade Commission, 500 E Street SE., Washington, DC 20436, no later than 5:15 p.m., November 26, 2003. Any prehearing briefs (original and 14 copies) should be filed not later than 5:15 p.m., December 1, 2003; the deadline for filing post-hearing briefs or statements is 5:15 p.m., December 24, 2003.
Industry-specific information may be obtained from Mr. Jonathan Coleman, project leader (202-205-3465) or Mr. Warren Payne, deputy project leader (202-205-3317) of the Office of Industries, U.S. International Trade Commission, Washington, DC 20436. For information on the legal aspects of this investigation contact Mr. William Gearhart of the Office of the General Counsel (202-205-3091). Hearing impaired individuals are advised that information on this matter can be obtained by contacting the TDD Terminal on (202-205-1107).
This investigation is being conducted at the request of the Senate Committee on Finance in its letter of May 14, 2003. The Commission plans to submit its report by May 14, 2004. Notices of institution of the investigation and an earlier scheduled hearing date were published in the
The Commission is particularly interested in receiving testimony with respect to the following:
(1) the end use applications of various milk protein products;
(2) the ability of different milk and non-milk proteins to substitute for each other in end use applications, considering both the functional and nutritional aspects that impact the substitutability of different proteins;
(3) the different production processes associated with various forms of milk protein and the impact of the production process on their nutritional and functional characteristics;
(4) the impact of U.S. government intervention on the profitability of commercial milk protein concentrate and casein production in the United States;
(5) the impact of imports of milk proteins on U.S. farm-level milk prices;
(6) the impact of foreign government intervention on the ability of imported milk proteins to compete in the U.S. market; and
(7) the global market for milk protein products, especially trade involving high-value or customized dairy products.
Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202-205-2000). General information concerning the Commission may also be obtained by accessing its Internet server (
Milk proteins, government intervention, tariffs, and imports.
By order of the Commission.
On the basis of the record
The Commission instituted this investigation effective November 20, 2002, following receipt of a petition filed with the Commission and Commerce by Washington Mills Company, Inc., North Grafton, MA.
The Commission transmitted its determination in this investigation to the Secretary of Commerce on November 10, 2003. The views of the Commission are contained in USITC Publication 3643 (November 2003), entitled
By order of the Commission.
On October 31, 2003, the Secretary of Labor signed the annual certifications under the Federal Unemployment Tax Act, 26 U.S.C. 3301
Dear Secretary Snow: Transmitted herewith are an original and one copy of the certifications of the states and their unemployment compensation laws for the 12-month period ending on October 31, 2003. One is required with respect to the normal federal unemployment tax credit by Section 3304 of the Internal Revenue Code of 1986 (IRC), and the other is required with respect to the additional tax credit by Section 3303 of the IRC. Both certifications list all 53 jurisdictions.
In accordance with the provisions of Section 3304(c) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(c)), I hereby certify the following named states to the Secretary of the Treasury for the 12-month period ending on October 31, 2003, in regard to the unemployment compensation laws of those states which heretofore have been approved under the Federal Unemployment Tax Act:
This certification is for the maximum normal credit allowable under Section 3302(a) of the Code.
In accordance with the provisions of paragraph (1) of Section 3303(b) of the Internal Revenue Code of 1986 (26 U.S.C. 3303(b)(1)), I hereby certify the unemployment compensation laws of the following named states, which heretofore have been certified pursuant to paragraph (3) of Section 3303(b) of the Code, to the Secretary of the Treasury for the 12-month period ending on October 31, 2003:
This certification is for the maximum additional credit allowable under Section 3302(b) of the Code.
The fall meetings of committees of the Labor Research Advisory Council will be held on December 8, 9, 10, and 19, 2003. All of the meetings will be held in the Conference Center, of the Postal Square Building (PSB), 2 Massachusetts Avenue, NE., Washington, DC.
The Labor Research Advisory Council and its committees advise the Bureau of Labor Statistics with respect to technical matters associated with the Bureau's programs. Membership consists of union research directors and staff members. The schedule and agenda of the meetings are as follows:
The meetings are open to the public. Persons planning to attend these meetings as observers may want to contact Wilhelmina Abner on 202-691-5970.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506 (c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the extension of the information collection related to the 30 CFR Sections 75.310, 312, 342, 351, 360, 361, 362, 363, 364, 370, 371, and 382.
Submit comments on or before January 12, 2004.
Send comments to Jane Tarr, Management Analyst, Administration and Management 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on computer disk, or via Internet e-mail to
Jane Tarr, Management Analyst, Records Management Group, U.S. Department of Labor, Mine Safety and Health Administration, Room 2171, 1100 Wilson Boulevard, Arlington, VA 22209-3939. Ms. Tarr can be reached at
An underground mine is a maze of tunnels that must be adequately ventilated with fresh air to provide a safe environment for miners. Methane is liberated from the strata, and noxious gases and dusts from blasting and other mining activities may be present. The explosive and noxious gases and dusts must be diluted, rendered harmless, and carried to the surface by the ventilating currents. Sufficient air must be provided to maintain the level of respirable dust at or below 2 milligrams per cubic meter of air and air quality must be maintained in accordance with MSHA standards. Mechanical ventilation equipment of sufficient capacity must operate at all times while miners are in the mine. Ground conditions are subject to frequent changes, thus sufficient tests and examinations are necessary to ensure the integrity of the ventilation system and to detect any changes that may require adjustments in the system. Records of tests and examinations are necessary to ensure that the ventilation system is being maintained and that changes which could adversely affect the integrity of the system or the safety of the miners are not occurring. These examination requirements of §§ 75.310, 75.312, 75.342, 75.351, 75.360 through 75.364, 75.370, 75.371, and 75.382 also incorporate examinations of other critical aspects of the underground work environment such as roof conditions and electrical equipment which have historically cased numerous fatalities if not properly maintained and operated.
MSHA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
A copy of the proposed information collection request can be obtained by contacting the employee listed in the For Further Information Contact section of this notice, or viewed on the Internet by accessing the MSHA home page
Records of tests and examinations are necessary to ensure that the ventilation system is being maintained and that changes which could adversely affect the integrity of the system or the safety of the miners are not occurring.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Science Foundation.
Notice.
The National Science Foundation (NSF) is announcing plans to seek approval of this information collection. In accordance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3501 et seq.), and as part of the continuing effort to reduce paperwork and respondent burden, NSF is inviting the general public and other Federal agencies to comment on this proposed information collection.
Written comments should be received by January 12, 2004 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments regarding the information collection and requests for copies of the proposed information collection request should be addressed to Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 295, Arlington, VA 22230, or by e-mail to
Suzanne H. Plimpton at (703) 292-7556, or e-mail to
In addition, NSF's Office of Legislative and Public Affairs uses the information from this data collection in preparing speeches and testimony for NSF executives. The information is also used in NSF's Annual Report and in various publications prepared by NSF's Division of Science Resources Statistics.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (the Commission) has published a draft plant-specific supplement to the Generic Environmental Impact Statement (GEIS), NUREG-1437, regarding the renewal of operating licenses DPR-29 and DPR-30 for an additional 20 years of operation at Quad Cities Nuclear Power Station (QCNPS).
The draft supplement to the GEIS is available for public inspection in the NRC's Public Document Room (PDR) located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or, electronically, from the Publicly Available Records (PARS) component of NRC's Agencywide Documents Access and Management System (ADAMS). ADAMS is accessible from the NRC Web site at
Any interested party may submit comments on the draft supplement to the GEIS for consideration by the NRC staff. To be certain of consideration, comments on the draft supplement to the GEIS and the proposed action must be received by January 27, 2004. Comments received after the due date will be considered if it is practical to do so, but the NRC staff is able to assure consideration only for comments received on or before this date. Written comments on the draft supplement to the GEIS should be sent to: Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D 59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Comments may be hand-delivered to the NRC at 11545 Rockville Pike, Rockville, Maryland, between 7:45 a.m. and 4:15 p.m. on Federal workdays. Electronic comments may be submitted to the NRC by e-mail at
The NRC staff will hold a public meeting to present an overview of the draft plant-specific supplement to the GEIS and to accept public comments on the document. The public meeting will be held on December 16, 2003, at The Mark of the Quad Cities, 1201 River Drive, Moline, Illinois. There will be two sessions to accommodate interested parties. The first session will commence at 1:30 p.m. and will continue until 4:30 p.m. The second session will commence at 7 p.m. and will continue until 10 p.m. Both meetings will be transcribed and will include: (1) a presentation of the contents of the draft plant-specific supplement to the GEIS, and (2) the opportunity for interested government agencies, organizations, and individuals to provide comments on the draft report. Additionally, the NRC staff will host informal discussions one hour prior to the start of each session at the same location. No comments on the draft supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meeting or in writing, as discussed below. Persons may pre-register to attend or present oral comments at the meeting by contacting Mr. Louis L. Wheeler by telephone at 1-800-368-5642, extension 1444, or by e-mail at
For further information, contact: Mr. Louis L. Wheeler, License Renewal and Environmental Impacts Program, Division of Regulatory Improvement Programs, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001. Mr. Wheeler may be contacted at the aforementioned telephone number or e-mail address.
For The Nuclear Regulatory Commission.
The ACRS Subcommittee on Thermal-Hydraulic Phenomena will hold a meeting on November 19 and 20, 2003, Room T-2B3, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Ralph Caruso (Telephone: 301-415-1813) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted during the meeting.
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:30 a.m. and 4:15 p.m. (e.t.). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda.
U.S. Nuclear Regulatory Commission.
Request for public comment.
Nearly 4 years have elapsed since the U.S. Nuclear Regulatory Commission (NRC) implemented its revised Reactor Oversight Process (ROP). The NRC is currently soliciting comments from members of the public, licensees, and interest groups related to the implementation of the ROP. This is a followup to the FRN issued in November 2002, which requested feedback on the third year of implementation.
The comment period expires on December 31, 2003. The NRC will consider comments received after this date if it is practical to do so, but is only able to ensure consideration of comments received on or before this date.
Comments may be e-mailed to
Documents created or received at the NRC after November 1, 1999, are available electronically through the NRC's Public Electronic Reading Room on the Internet at
Mr. Michael J. Maley, Office of Nuclear Reactor Regulation (Mail Stop OWFN 7A15), U.S. Nuclear Regulatory Commission, Washington DC 20555-0001. Mr. Maley can also be reached by telephone at 301-415-2919 or by e-mail at
The mission of the NRC is to regulate the civilian uses of nuclear materials in the United States to protect the health and safety of the public and the environment, and to promote the common defense and security by preventing the proliferation of nuclear material. This mission is accomplished through the following activities:
• License nuclear facilities and the possession, use, and disposal of nuclear materials.
• Develop and implement requirements governing licensed activities.
• Inspect and enforce licensee activities to ensure compliance with these requirements and the law.
While the NRC's responsibility is to monitor and regulate licensees' performance, the primary responsibility for safe operation and handling of nuclear materials rests with each licensee.
As the nuclear industry in the United States has matured for more than 26 years, the NRC and its licensees have learned much about how to safely operate nuclear facilities and handle nuclear materials. In April 2000, the NRC began to implement more effective and efficient inspection, assessment, and enforcement approaches, which apply insights from these years of regulatory oversight and nuclear facility operation. The NRC has also incorporated risk informed principles and techniques into its oversight activities. A risk informed approach to oversight enables the NRC to more appropriately apply its resources to oversight of operational areas that contribute most to safe operation at nuclear facilities.
After conducting a 6-month pilot program in 1999, assessing the results, and incorporating the lessons learned, the NRC began implementing the revised Reactor Oversight Process (ROP) at all 103 nuclear facilities (except D.C. Cook) on April 2, 2000. Inherent in the ROP are the following key NRC performance goals:
(1) Maintain safety by establishing and implementing a regulatory oversight process that ensures that plants are operated safely.
(2) Enhance public confidence by increasing the predictability, consistency, and objectivity of the oversight process; providing timely and understandable information; and providing opportunities for meaningful involvement by the public.
(3) Improve the effectiveness, efficiency, and realism of the oversight process by implementing a process of continuous improvement.
(4) Reduce unnecessary regulatory burden through the consistent application of the process and incorporation of lessons learned.
Key elements of the ROP include revised NRC inspection procedures, plant performance indicators, a significance determination process, and an assessment program that incorporates various risk-informed thresholds to help determine the level of NRC oversight and enforcement. Since process development began in 1998, the NRC has frequently communicated with the public by various means. These have included conducting public meetings in the vicinity of each licensed commercial nuclear power plant, issuing FRNs soliciting feedback on the process, publishing press releases about the new process, conducting multiple public workshops, placing pertinent background information in the NRC's Public Document Room, and establishing an NRC Web site containing easily accessible information about the new program and licensee performance.
The NRC continues to be interested in receiving feedback from members of the public, various public stakeholders, and industry groups on their insights regarding the fourth year of implementation of the ROP. In particular, the NRC is seeking responses to the questions listed below, which will provide important information that the NRC can use in ongoing program improvement. A summary of the feedback obtained will be provided to the Commission and included in the annual ROP self-assessment report.
(As appropriate, please provide specific examples and suggestions for improvement.)
(1) Does the Performance Indicator Program minimize the potential for licensees to take actions that adversely impact plant safety?
(2) Does appropriate overlap exist between the Performance Indicator Program and the Inspection Program?
(3) Do reporting conflicts exist, or is there unnecessary overlap between reporting requirements of the ROP and those associated with the Institute of Nuclear Power Operations (INPO), the
(4) Does NEI 99-02, “Regulatory Assessment Performance Indicator Guideline” provide clear guidance regarding Performance Indicators?
(5) Is the information in the inspection reports useful to you?
(6) Does the Significance Determination Process yield equivalent results for issues of similar significance in all ROP cornerstones?
(7) Does the NRC take appropriate actions to address performance issues for those licensees outside of the Licensee Response Column of the Action Matrix?
(8) Is the information contained in assessment reports relevant, useful, and written in plain English?
(As appropriate, please provide specific examples and suggestions for improvement.)
(9) Are the ROP oversight activities predictable (
(10) Is the ROP risk-informed, in that the NRC's actions are graduated on the basis of increased significance?
(11) Is the ROP understandable and are the processes, procedures and products clear and written in plain English?
(12) Does the ROP provide adequate assurance that plants are being operated and maintained safely?
(13) Does the ROP improve the efficiency, effectiveness, and realism of the regulatory process?
(14) Does the ROP enhance public confidence?
(15) Has the public been afforded adequate opportunity to participate in the ROP and to provide inputs and comments?
(16) Has the NRC been responsive to public inputs and comments on the ROP?
(17) Has the NRC implemented the ROP as defined by program documents?
(18) Does the ROP reduce unnecessary regulatory burden on licensees?
(19) Does the ROP result in unintended consequences?
(20) Would you benefit if the NRC conducted a ROP Public Workshop in the future?
(21) Please provide any additional information or comments on other program areas related to the Reactor Oversight Process.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Request for comment.
Notice is hereby given that the staff of the Nuclear Regulatory Commission (NRC) has prepared a model safety evaluation (SE) relating to changes to the completion time in Standard Technical Specifications (STS) 3.6.3 “Containment Isolation Valves (Atmospheric and Dual).” The proposed change to the Technical Specifications (TS) would extend to 7 days the completion time to isolate the affected penetration flow path when selected containment isolation valves (CIVs) are inoperable in either a penetration flow path with two CIVs or in a penetration flow path with one CIV in a closed system. This change is based on analyses provided in a generic topical report submitted by the former Combustion Engineering Owner's Group (CEOG; now incorporated into the Westinghouse Owners Group). The Owners Group participants in the Technical Specification Task Force (TSTF) proposed this change to the STS in Change Traveler TSTF-373, Revision 2. This notice also includes a model no significant hazards consideration (NSHC) determination relating to this matter.
The purpose of these models is to permit the NRC to efficiently process amendments to incorporate this change into plant-specific TS for Combustion Engineering (CE) pressurized water reactors (PWRs). Licensees of nuclear power reactors to which the models apply could request amendments conforming to the models. In such a request, a licensee should confirm the applicability of the SE and NSHC determination to its reactor. The NRC staff is requesting comments on the model SE and model NSHC determination before announcing their availability for referencing in license amendment applications.
The comment period expires on December 15, 2003. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Comments may be submitted either electronically or via U.S. mail.
Submit written comments to: Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mail Stop: T-6 D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Hand deliver comments to: 11545 Rockville Pike, Rockville, Maryland, between 7:45 a.m. and 4:15 p.m. on Federal workdays.
Copies of comments received may be examined at the NRC's Public Document Room, One White Flint North, Public File Area O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland.
Comments may be submitted by electronic mail to
William Reckley, Mail Stop: O-7D1, Division of Licensing Project Management, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1323.
Regulatory Issue Summary 2000-06, “Consolidated Line Item Improvement Process for Adopting Standard Technical Specification Changes for Power Reactors,” was issued on March 20, 2000. The Consolidated Line Item Improvement Process (CLIIP) is intended to improve the efficiency and transparency of NRC licensing processes. This is accomplished by processing proposed changes to the STS in a manner that supports subsequent license amendment applications. The CLIIP includes an opportunity for the public to comment on proposed changes to the STS following a preliminary assessment by the NRC staff and finding that the change will likely be offered for adoption by licensees. This notice is soliciting comment on a proposed change to the STS that changes the containment isolation valve (CIV) completion times for the CE STS, NUREG-1432, Revision 2. The CLIIP directs the NRC staff to evaluate any comments received for a proposed change to the STS and to either
This notice involves an increase in the allowed completion times to isolate the affected penetration flow path when selected CIVs are inoperable at CE PWRs. The CEOG proposed this change for incorporation into the STS as TSTF-373, Revision 2. This change is based on the staff approved generic analyses contained in the CEOG Document CE NPSD-1168-A, “Joint Applications Report for Containment Isolation Valve AOT Extension,” dated January 2001, accessible electronically from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet (ADAMS Accession Number ML010780257) at the NRC Web site
This proposed change to revise the TS completion times for selected CIVs is applicable to CE PWRs.
To efficiently process the incoming license amendment applications, the staff requests each licensee applying for the changes addressed by TSTF-373 using the CLIIP to address the plant-specific verifications identified in the model SE. Namely, each licensee should include in its application that it has verified that:
(a) The supporting information in CE NPSD-1168-A is applicable to their plant and the specific penetrations for which the licensee is requesting an extended completion time (
(b) They have evaluated and substantiated that external events will not affect the results of the analysis supporting the extended completion times.
(c) Any plant-specific analyses used to support the amendment request have used an acceptable probabilistic risk analyses (PRA) quality as described in RG 1.177.
(d) Plant-specific implementation of this change includes verification of the operability of the remaining CIV(s) in a penetration flow path before entering the extended completion time for corrective maintenance. Plant-specific implementation of this change includes verification that the affected penetration will remain physically intact or be isolated so as to not permit a release to the outside environment.
(e) They have verified that the additive nature of multiple failed CIVs and the possibility of entering multiple allowed outage times (AOTs) have been addressed as part of the analysis.
(f) Applications that propose changes for configurations not addressed by the groups described in CE NPSD-1168-A include a plant-specific analysis to justify the completion time extension. [Note that such proposals will require staff review of the specific penetrations and related justifications for the proposed extension in completion times.]
The CLIIP does not prevent licensees from requesting an alternative approach or proposing the changes without the requested verifications. Variations from the approach recommended in this notice may, however, require additional review by the NRC staff and may increase the time and resources needed for the review.
This notice requests comments from interested members of the public within 30 days of the date of publication in the
Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, Consolidated Line Item Improvement.
Technical Specification Task Force (TSTF) Change TSTF-373, “Increase CIV Completion Time in Accordance with CE-NPSD-1168”.
By application dated [ ], [Licensee] (the licensee) requested changes to the Technical Specifications (TS) for [facility]. The proposed changes would revise TS 3.6.3, “Containment Isolation Valves (Atmospheric and Dual),” by extending to 7 days the completion time to isolate the affected penetration flow path when selected containment isolation valves (CIVs) are inoperable in either a penetration flow path with two CIVs or in a penetration flow path with one CIV in a closed system.
The existing Limiting Condition for Operation (LCO) 3.6.3, requires that each CIV be operable. The operability of CIVs ensures that the containment is isolated during a design basis accident and is able to perform its function as a barrier to the release of radioactive material. If a CIV is inoperable in one or more penetrations, the current required action is to isolate the penetration or restore the inoperable CIV to operable status within 4 hours for penetrations with 2 CIVs and within 72 hours for penetrations with a single CIV and a closed system. The times specified for performing these actions were considered reasonable, given the time required to isolate the penetration and the relative importance of ensuring containment integrity during plant operation. In the case of a single CIV and a closed system, the specified completion time takes into consideration the ability of the closed system to act as a penetration boundary.
In June 1999, the Combustion Engineering (CE) Owners Group (CEOG) submitted the joint application report (JAR) CE NPSD-1168 which provided a risk-informed justification for extending the TS allowed outage time (AOT) (also referred to as completion time), for an inoperable CIV from the current 4 hours or 72 hours to 7 days. The staff used the guidance of Regulatory Guide (RG) 1.174, “An Approach for Using Probabilistic Risk Assessment in Risk-
The staff's SE associated with NPSD-1168 was issued prior to the changes associated with 10 CFR 50.65(a)(4), which became effective on November 28, 2002. With the implementation of 10 CFR 50.65(a)(4), licensees are required to assess and manage the risk that may result from proposed maintenance activities. The activities necessary for implementation of 10 CFR 50.65(a)(4) satisfy and supercede a number of the conditions in the staff SE for implementing the JAR.
The approval of TSTF-373, Revision 2, followed the staff's review of CE NPSD-1168 and specified the applicable conditions to be addressed in order to implement the 7-day completion time for an inoperable CIV. These conditions are as follows:
(a) The supporting information in CE NPSD-1168-A is applicable to their plant and the specific penetrations for which the licensee is requesting an extended completion time (
(b) They have evaluated and substantiated that external events will not affect the results of the analysis supporting the extended completion times.
(c) Any plant-specific analyses used to support the amendment request have used an acceptable probabilistic risk analyses (PRA) quality as described in RG 1.177.
(d) Plant specific implementation of this change includes verification of the operability of the remaining CIV(s) in a penetration flow path before entering the extended completion time for corrective maintenance. Plant specific implementation of this change includes verification that the affected penetration will remain physically intact or be isolated so as to not permit a release to the outside environment.
(e) They have verified that the additive nature of multiple failed CIVs and the possibility of entering multiple allowed outage times (AOTs) have been addressed as part of the analysis.
(f) Applications that propose changes for configurations not addressed by the groups described in CE NPSD-1168-A include a plant-specific analysis to justify the completion time extension. [Note that such proposals will require staff review of the specific penetrations and related justifications for the proposed extension in completion times.]
The proposed changes to TS 3.6.3 include:
1. The existing Condition A, with related required action and completion time, is replaced by new Conditions A and B. The new Condition A retains the required actions and completion times of existing Required Action A; however, the new Condition A is applicable to the containment sump supply valves to the ECCS and containment spray pumps, and those penetrations that do not meet the related criteria and analyses contained in CE NPSD-1168-A. The new Required Action B retains the required actions of existing Required Action A and the completion times for existing Required Action A.2. New Condition B is the same as existing Condition A, except that it does not apply to Conditions A, E, and F. In addition, the completion time for Required Action B.1 is 7 days.
2. Existing Required Action C is relabeled Required Action D and the completion time for Required Action C.1 (new D.1) is changed from “72 hours” to “72 hours for those penetrations that do not meet the 7-day criteria
3. Existing Required Actions B, D, E, and F and references to those Actions in the specification are relabeled C, E, F, and G respectively.
The CIV penetration configurations may be categorized into three groups. These groups are:
1. CIV penetration configurations that were not analyzed in the JAR and in the plant specific analysis;
2. CIV penetration configurations that fall within the 14 containment penetration configurations considered in the JAR; and
3. CIV penetration configurations that were not considered in the JAR but a plant specific analysis was provided to justify a 7 day completion time.
The CIVs for which no analysis was provided include the containment sump supply valves to the ECCS and containment spray pumps, valves associated with the Main Feedwater System, Main Steam Isolation Valves, and [list of plant specific valves]. For these CIVs, the completion times for an inoperable valve will not change. Thus, either the 4 hour completion time of Required Action A.1 or the 72 hour completion time for Required Action D.1 will apply, depending on whether the penetration has two valves or has a single CIV within a closed system.
For those CIV penetration configurations that fall within the 14 containment penetration configurations considered in the JAR, the licensee verified that the JAR results were applicable to [plant name]. [The analysis also evaluated the risk for those CIV penetration configurations that were not considered in the JAR. The risk measures used to assess the impact of the proposed changes for these configurations in this analysis are consistent with the measures defined in RGs 1.174 and 1.177. This analysis also took into consideration plant-specific external events to show how they would affect the results of the analysis supporting the extended completion times.]
In addition, the licensee verified that the additive nature of multiple failed CIVs, and the possibility of entering multiple AOTs, had been addressed as
The JAR and the plant-specific analysis assumed that the penetrations remain physically intact so that their integrity is maintained. In instances where corrective or preventive maintenance activities would be performed on penetrations and CIVs while in modes requiring these valves to be operable, the licensee has confirmed that these activities will be monitored to ensure that the integrity of the penetration is not compromised during the maintenance. The licensee has stated that the operability of the remaining CIV(s) in a penetration flow path will be verified before entering the extended completion time for corrective maintenance and that measures will be taken to ensure that each penetration will remain physically intact or be isolated so as to not permit a release to the outside environment. The staff has reviewed the licensee's statements regarding its measures to ensure penetration integrity is maintained and finds them acceptable.
Based on the low probability of an event occurring during the inoperability of a CIV and the ability to maintain the integrity of the CIV penetration, the staff finds the proposed changes are consistent with previous staff reviews of CE NPSD-1168-A and TSTF-373, and are acceptable.
In accordance with the Commission's regulations, the [State] State official was notified of the proposed issuance of the amendments. The State official had [choose one: (1) no comments, or (2) the following comments—with subsequent disposition by the staff].
The amendment changes a requirement with respect to the installation or use of a facility component located within the restricted area as defined in 10 CFR part 20. The NRC staff has determined that the amendments involve no significant increase in the amounts and no significant change in the types of any effluents that may be released offsite, and that there is no significant increase in individual or cumulative occupational radiation exposure. The Commission has previously issued a proposed finding that the amendments involve no significant hazards consideration, and there has been no public comment on such finding (XX FR XXXXX). Accordingly, the amendment meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Pursuant to 10 CFR 51.22(b) no environmental impact statement or environmental assessment need be prepared in connection with the issuance of the amendment.
The Commission has concluded, based on the considerations discussed above, that: (1) There is reasonable assurance that the health and safety of the public will not be endangered by the operation in the proposed manner, (2) such activities will be conducted in compliance with the Commission's regulations, and (3) the issuance of the amendment will not be inimical to the common defense and security or to the health and safety of the public.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed change revises the completion time (CT) for an inoperable containment isolation valve (CIV) within the scope of the Combustion Engineering (CE) Owner's Group (CEOG) Joint Application Report CE-NPSD-1168-A from 4 hours or 72 hours to 7 days. CIVs are not accident initiators in any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased.
CIVs, individually and in combination, control the extent of leakage from the containment following an accident. The proposed CT extension applies to the reduction in redundancy in the containment isolation function by the CIVs for a limited period of time but does not alter the ability of the plant to meet the overall containment leakage requirements. In order to evaluate the proposed CT extension, a probabilistic risk assessment evaluation was performed in the CEOG Joint Application Report CE-NPSD-1168-A. The risk assessment concluded that, based on the use of bounding risk parameters for the CE designed plants, the proposed increase in the CIV CT from 4 hours to 7 days does not alter the ability of the plant to meet the overall containment leakage requirements. It also concluded that the proposed change does not result in an unacceptable incremental conditional core damage probability or incremental conditional large early release probability according to the guidelines of Regulatory Guide (RG) 1.177. As a result, there would be no significant increase in the consequences of an accident previously evaluated. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated. The change revises the allowed outage time for an inoperable CIV within the scope of the CEOG Joint Application Report CE-NPSD-1168-A from 4 hours or 72 hours to 7 days. CIVs, individually and in combination, control the extent of leakage from the containment following an accident. The proposed CT extension applies to the reduction in redundancy in the containment isolation function by the CIVs for a limited period of time but does not alter the ability of the plant to meet the overall containment leakage requirements. The proposed change does not change the design, configuration, or method of operation of the plant. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change does not involve a significant reduction in a margin of safety. The proposed change revises the CT for an inoperable CIV within the scope of the CEOG Joint Application Report CE-NPSD-1168-A from 4 hours or 72 hours to 7 days. CIVs, individually and in combination, control the extent of leakage from the containment following an accident. The proposed CT extension applies to the reduction in redundancy in the containment isolation function by the CIVs for a limited period of time but does not alter the ability of the plant to meet the overall containment leakage requirements. In order to evaluate the proposed CT extension, a probabilistic risk assessment evaluation was performed in CEOG Joint Application Report CE-NPSD-1168-A. The risk assessment concluded that, based on the use of bounding risk parameters for CE-designed plants, the proposed increase in the CIV CT from 4 hours or 72 hours to 7 days does not alter the ability of the plant to meet the overall containment leakage requirements. It also concluded that the proposed change does not result in an unacceptable incremental conditional core damage probability or incremental conditional large early release probability according to the guidelines of RG 1.177. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, the proposed change presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and accordingly, a finding of “no significant hazards consideration” is justified.
For The Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to make changes to its Fee Schedule to amend certain application fees. The text of the proposed rule change to the fee schedule is available at the Office of the Secretary, the CBOE, and at the Commission.
In its filing with the Commission, the CBOE 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 CBOE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The CBOE proposes to make the following amendments to its Fee Schedule concerning its application fees, as described below.
First, the application fee for a new joint account is currently $250 per person (with a minimum of $500). The Exchange states that this fee has not increased for many years,
Second, the Exchange currently charges $250 whenever a member organization requests an addition of a member to a joint account. The Exchange proposes a change to eliminate this fee for participant additions to joint accounts whose members are part of the same broker-dealer. The Exchange states that the vast majority of additions to joint accounts are currently for joint accounts whose members are part of the same broker-dealer. Recent revisions in the joint application account form have significantly reduced the time and effort that the Exchange staff must expend in processing such changes. In cases where the members of a joint account are not part of the same broker-dealer, the $250 fee would continue to be imposed for each addition to the joint account.
Finally, the Exchange proposes to establish a $10,000 cap on application fees that are incurred due to a member organization's change in its organizational structure (
The Exchange believes that these changes would help continue to fairly allocate its costs for processing changes in joint accounts while also passing along to members the savings from increased efficiencies that the Exchange has recently achieved in this area.
The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule 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 CBOE. All submissions should refer to File No. SR-CBOE-2003-52 and should be submitted by December 4, 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, (the “Act” or “Exchange Act”)
The Exchange is amending and restating the Constitution of the Exchange. The changes to the Constitution will significantly reform the governance and management architecture of the Exchange.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend and restate its Constitution to significantly change and enhance its governance structure. The amended and restated Constitution, marked to show changes from the Exchange's existing Constitution, is included in Exhibit A hereto.
The objectives of the new governance architecture are to
(1) Place responsibility for governance, compensation and internal controls, as well as for supervision of regulation, in the hands of a Board of Directors that is independent both from NYSE management and from the members, member organizations and listed companies.
(2) Separately preserve the existing engagement of the broker-dealer community and listed company community with the NYSE by creating a Board of Executives that will also include the executives of major public and private “buy-side” entities as well as lessor members of the Exchange.
Thus, the proposed rule change calls for a Board of Directors that is completely independent except for the CEO. Requiring independence from owner-constituents goes beyond what we expect of public companies, and it aligns the Exchange's Board with the interests of investors. It is the additional Board of Executives that is intended to ensure ongoing engagement with all of our constituents. Moreover, the Regulatory unit reports directly—and not through the CEO—to our independent Board of Directors, yet retains sufficient proximity to the marketplace to assure the market sensitivity that the Exchange believes is fundamental to effective regulation of the capital markets.
The Exchange notes that its current investigation of specialist trading practices, and the Commission's parallel investigation regarding our surveillance for and enforcement of the affected rules, have caused commentators to call for changes that would end broker dealer self-regulation through exchanges as well as radically alter the auction market. The Exchange also notes that, while the preliminary findings of the internal review of its compensation practices and the preliminary findings of the Commission's inspection and investigation of our specialist regulation have informed our new architecture, neither of these processes are complete and, therefore, the Exchange cannot be
The Exchange believes that its new architecture empowers a Board of Directors with the independence to address issues objectively and the constituent input to address them intelligently. The Exchange believes that directors who have the degree of independence and experience that our governance architecture promises—as evidenced by the quality of our nominees—will assure that the Exchange's regulatory function is both independent and robust. Thus, the Exchange believes its architecture guarantees the independence of our regulatory function both from members and member organizations and from inappropriate linkage with our marketplace function, while assuring the function's sensitivity to the market.
Nevertheless, the Exchange notes that this proposed rule change does not ask the Commission to approve either the continuation of self-regulation in the United States or the continuation of the role of the specialist on the Exchange. Both issues should be addressed in the context of how well the new Board implements both the architecture and the programmatic changes that the Exchange has undertaken in response to the Commission (as well as other programmatic changes that the Board can be expected to initiate), all of which the Commission is carefully monitoring through the ongoing engagement of its market regulation, inspection and enforcement staffs with these matters.
Thus, while the Exchange does seek the Commission's approval of what it regards as a greatly improved architecture for self-regulation through the Exchange, and while the Exchange continues to believe that its specialist/auction market delivers high quality executions at low cost to investors, it does not at this time seek the Commission's premature decisions on this work-in-progress. Nor does the Exchange seek from the Commission at this time any action on the question of the separation of the trading rights from equity ownership, and thereby on the question of who should elect the Exchange Board over the longer term, which has far too many ramifications to be the subject of proposal by an interim chairman. That issue, and the other issues described in the proxy statement that go beyond board and management architecture, must be taken up by an unconflicted Board in a way that takes into account the many public policy and practical issues that such a separation implies.
All the Exchange seeks at this time is the Commission's approval of a transitional structure that allows it to move from the current situation to one in which a Board of independent, distinguished and experienced men and women can take on the formidable challenges facing the Exchange.
A complete explanation of the purposes and details of the new architecture, and the reasons why the Exchange is desirous of making these changes, is contained in the proxy statement and related materials which have been furnished to the Exchange's membership in connection with the upcoming membership vote on the proposal. All of these materials are contained in Exhibit B hereto. Also contained in the proxy statement are the names of the eight persons whom the members are being asked to vote to elect as the new Board of Directors of the Exchange.
Clarifying changes to certain Constitutional provisions which will be added by Board action promptly following member approval of the amended and restated Constitution and election of the new Board are described in a supplementary letter contained in Exhibit C hereto. Upon approval by the Board, the additional changes to the Constitution will be filed with the Commission for approval.
The basis under the Act for this proposed rule change is the requirement under section 6(b)(1)
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.
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 the proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
The amended and restated Constitution is subject to the approval of the members of the Exchange, and a vote is currently scheduled for November 18, 2003. The Exchange hereby consents to an extension of the period of time specified in section 19(b)(2) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements
For the Commission, by the Division of Market Regulation, pursuant to the delegated authority.
Sec. 1.
Sec. 2.
(a) To furnish exchange rooms for the convenient transaction of their business by its members; to furnish other facilities for its members, allied members and member organizations; to maintain high standards of commercial honor and integrity among its members, allied members and member organizations; and to promote and inculcate just and equitable principles of trade and business;
(b) to conduct and carry on the functions of a “board of trade” within the meaning of that term in the New York Not-for-Profit Corporation Law;
(c) to conduct and carry on the functions of an “exchange” within the meaning of that term in the Act; and
(d) to conduct and carry on any and all activities incidental to the foregoing which may lawfully be conducted and carried on by a corporation of its type formed under the New York Not-for-Profit Corporation Law.
Sec. 3.
(a) The term “Act” means the Securities Exchange Act of 1934 and the rules and regulations thereunder, as from time to time amended.
(b) The term “Exchange” means the New York Stock Exchange, Inc.
(c) The term “allied member” means:
(i) a general partner in a member firm, or an employee who controls a member firm, who is not a member of the Exchange and who has become an allied member as provided in the rules of the Exchange, or
(ii) an employee of a member corporation who is not a member of the Exchange, who has become an allied member as provided in the rules of the Exchange, and who is either:
—a principal executive officer of such corporation, or
—a person who controls such corporation.
(d) The term “approved person” means a person who is not a member or an allied member of the Exchange or an employee of a member organization, who has become an approved person as provided in the rules of the Exchange and who is either:
(i) a person who controls a member or member organization, or
(ii) a person engaged in a securities or kindred business who is controlled by or under common control with a member or member organization.
(e) The term “electronic access member” means one of the members who has the right to maintain electronic or telephonic access to the floor facilities of a member or member organization, the Designated Order Turnaround System of the Exchange and such other automated trading systems of the Exchange as the Board may determine.
(f) The term “lessee member” means a member who has become a member by leasing the membership of a regular member.
(g) The term “lessor member” means regular member who has leased his or her membership.
(h) The term “member” means a natural person who is a member of the Exchange. A member may be associated as a member with no more than one member organization.
(i) The term “member corporation” means a corporation
(j) The term “member firm” means a partnership, registered as a broker or dealer in securities under, unless exempted by, the Act, approved by the Board as a member firm, at least one of whose general partners or employees is a member of the Exchange, or which has the status of a member firm by virtue of permission given to it pursuant to the rules of the Exchange.
(k) The term “member organization” includes “member firm” and “member corporation.”
(l) The term “membership” refers to the members of the Exchange.
(m) The term “physical access member” means one of the members who is not a regular member but has the right to enter physically upon the trading floor and to have facilities thereon for the execution of orders.
(n) The term “regular member” means one of the members who upon liquidation, dissolution or winding up of the affairs of the Exchange, has distributive rights in its assets.
(o) The term “Board” means the Board of Directors of the Exchange.
(p) The term “entire Board” means the total number of directors [which]
[(q) The term “industry director” means a director of the Exchange who is
(i) a member or allied member of the Exchange who is
—the chief executive officer, or a principal executive officer, and a director of a member corporation; or
—the general partner of a member firm who has primary executive responsibilities; or
(ii) a member of the Exchange who is not a holder of voting stock in any member corporation or a partner in any member firm; or
(iii) the chief executive officer, or a principal executive officer, and a director of a person which controls and has as its principal subsidiary a member corporation.]
[(r) The term “public director” means a director of the exchange who is a representative of the public, except that no person who is or is affiliated with a broker or dealer in securities shall be a public director. For the purposes of this definition, a person shall be considered to be affiliated with a broker or dealer in securities if such person is a partner, officer, employee or director of such
Other terms used in this Constitution may be defined by rules adopted by the affirmative vote of a majority of the entire Board.
Sec. 1.
(a) 1366 regular members, each of whom shall, upon liquidation, dissolution, or winding up of the affairs of the Exchange, have distributive rights in its assets; and
(b) such number of physical access members, not to exceed twenty-four (24), each of whom shall have paid an annual membership fee, which shall entitle such member, during the period for which such fee has been paid and while such member remains in good standing, to enter physically upon the trading floor and to have facilities thereon for the execution of orders; and
(c) such number of electronic access members as the Board may from time to time determine, each of whom shall have paid an annual membership fee, which shall entitle such member, during the period for which such fee has been paid and while such member remains in good standing, to maintain electronic or telephonic access to (i) the floor facilities of a member or member organization, and (ii) the Designated Order Turnaround System of the Exchange, and (iii) such other automated trading systems of the Exchange as the Board may from time to time determine.
None of the members described in subsections (b) or (c) of this Section shall have any interest in or any right to share in any distribution of the assets of the Exchange in the event of any liquidation, dissolution, or winding up of the affairs of the Exchange.
Sec. 2.
Sec. 3.
Sec. 4.
(a) in the event that the new member shall have purchased such membership through a membership auction facility furnished by the Exchange, then the fee shall be the lesser of $7,500 or such amount as shall be equal to ten percent of the purchase price paid for the membership;
(b) in the event that:
(i) a regular member (hereinafter referred to as “outgoing member”) whose membership shall be transferred to a new member shall have had a contractual obligation to transfer the membership to such person as may be designated by the member organization of which the outgoing member then shall be a partner or an officer or employee, and
(ii) said contractual obligation shall have been entered into at the same time as the outgoing member shall have acquired said membership, and
(iii) the Exchange at the time said contractual obligation shall have been entered into shall have in writing approved or consented to the entering into of said obligation, and
(iv) the membership of the outgoing member shall in satisfaction of such obligation be transferred to the new member pursuant to such a designation, and the new member shall have substantially the same relationship to and financial interest in the member organization as the outgoing member had, and
(v) the new member shall have a contractual obligation to the same member organization to transfer the membership of the new member to such person as may be designated by the member organization, which obligation shall be upon substantially the same terms and conditions of said contractual obligation of the outgoing member to the member organization,
(c) in the event that the membership of a new member shall have been acquired in a manner other than as contemplated in either subsection (a) or subsection (b) of this Section, then the fee shall be the lesser of $7,500 or such amount as shall be equal to ten percent of the purchase price at which the most recent contracted sale of a membership occurred through the auction facility prior to the date on which notice of the transfer shall have been posted.
Notwithstanding the foregoing provisions of this Section, the Board may by rule eliminate the fee payable by a new member or reduce such fee below the minimum otherwise provided in this Section. The Board may also by rule require the payment of a fee upon the commencement or termination, or both, of any lease of membership referred to in Section 2 of this Article.
Sec. 5.
Sec. 6.
Sec. 7.
A majority of the entire Board may withdraw such privilege for any cause or without cause.
Sec. 8.
An options trading right holder who has acquired an options trading right by transfer may lease or transfer such right to any person approved by the Exchange.
A regular member or lessor member who has leased or transferred the options trading right relating to his or her membership shall not, during the term of such lease or after such transfer, exercise such right. If a regular member transfers the options trading right relating to his or her membership and thereafter transfers such membership unaccompanied by an options trading right, the transferee shall not, as a result of such transfer, acquire an options trading right. A regular member who has transferred the options trading right relating to his or her membership, or who has acquired by transfer such a membership which does not include an options trading right, may, if approved by the Exchange, acquire an options trading right and may thereafter lease or transfer such right, either together with or apart from his or her membership.
Except as expressly provided in the lease agreement between a lessor member and a lessee member, the options trading right relating to such membership shall remain with the lessor member.
The Board may, by the affirmative vote of a majority of the entire Board, adopt, amend and repeal such rules as it may deem necessary or proper relating to options trading right holders, the approval and disapproval thereof, the transfer or lease of options trading rights, the regulation of the activities and business associations of, and the conduct of business by, options trading right holders and brokers and dealers with which they are associated as partners, officers or employees, the imposition of charges with respect to, and the discipline of, options trading right holders and such brokers and dealers, and such other similar matters as the Board shall deem appropriate.
[Sec. 9. Temporary Options Trading Rights. The Board may at any time and from time to time and subject to such rules as the Board may from time to time adopt, issue options trading rights to any one or more or all persons that are members in good standing of any national securities exchange registered with the Securities and Exchange Commission or contract market designated as such by the Commodity Futures Trading Commission, which exchange or market is located in the United States of America; provided, however, that no such options trading right so issued to any person that is a member of the New York Futures Exchange, Inc. shall continue to confer any right beyond the third anniversary of the commencement of trading on the Exchange of any Exchange option and no other such options trading right so issued to any other person shall continue to confer any right beyond the first anniversary of such commencement. Any person to which any one or more options trading rights are issued pursuant to this Section shall be included within the term “options trading right holders” but no such options trading right so issued may be leased or transferred by the person to which issued. Notwithstanding the foregoing, any person to which any option trading right is issued pursuant to this Section, other than a natural person, may designate as the nominee of such person a natural person who is approved by the Exchange to exercise the right conferred by such option trading right and may change such designation from time to time, subject to the approval of the Exchange.]
Sec. 10. Transfer and Lease of Regular Membership. A transfer of membership of a regular member and the lease (which shall not be considered a transfer) of such a membership may be made upon the approval of the transfer or lease by the Board. The membership of a physical access member, electronic access member or lessee member shall not be transferable. The Board may, by the affirmative vote of a majority of the entire Board, adopt, amend and repeal such rules as it may deem necessary or proper relating to the posting of notice of the proposed transfer or lease of a membership, the right of a member to make contracts on the Exchange after such posting, the procedures to be followed with respect to such transfer or lease, the status of open Exchange Contracts of a member who transfers or leases his or her membership and of his or her member organization, and other similar matters.
Sec. 11. Distribution of Transfer Proceeds. Upon any transfer of a membership, whether made by a member or his or her legal representative or by the Board, the proceeds thereof shall be applied by the Exchange to the following purposes and in the following order of priority, viz:
First. The payment of such sums as the Board shall determine are or may become due to the Exchange from the member whose membership is transferred or from a member organization with which such member is associated as a member.
Second. The payment of such sums as the Board shall determine are due by such member or such member organization to other members or member organizations as a result of losses arising directly from the closing out under this Constitution and rules adopted pursuant hereto (or, to the extent made applicable by such rules,
There shall not be allowed as entitled to priority in payment under this subsection any claim otherwise allowable under the foregoing paragraph, with respect to which the claimant, in the opinion of the Board, did not take promptly all other proper steps under this Constitution, the rules adopted pursuant hereto and practice of the Exchange to protect his or her rights and to enforce such claim when due.
No claim asserted under this subsection shall be considered by the Board nor shall any member or member organization asserting such a claim have any rights thereunder, unless a written statement of such claim shall have been filed with the Secretary of the Exchange prior to the transfer of the membership of the member against whom claim is being made.
If the proceeds of the transfer of a membership are insufficient to pay in full all claims allowed under this subsection, payment shall be made pro rata upon all such allowed claims.
Third. After provisions for the payment of sums payable under subsections First and Second hereof, there may, in the discretion of the Board, be deducted from the remaining proceeds, if any, and paid to the Exchange the amount of any unusual expenses incurred by the Exchange in connection with litigation involving the disposition of such proceeds, including counsel fees and disbursements and the cost of producing records pursuant to a court order or other legal process.
No payment of such surplus under the provisions of this subsection shall be made to a member organization or former member organization with which such member is or had previously been associated as a member if such member organization, in the opinion of the Board, did not take promptly all proper steps to protect and enforce its rights, or if the Board, in its sole discretion, shall determine that an unreasonable time has elapsed between the date when he or she ceased to be such a member in such member organization and the date of the transfer.
Except as otherwise specifically provided for by this Constitution, no recognition or effect shall be given by the Exchange to any agreement or to any instrument entered into or executed by a member or his or her legal representatives which purports to transfer or assign such member's interest in his or her membership, or in the proceeds or any part thereof, or which purports to create any lien or other right with respect thereto, or which purports in any manner to provide for the disposition of such proceeds to a creditor of such member; nor shall payment of such proceeds be made by the Exchange to any agent or attorney-in-fact of a member except as may be permitted by the rules adopted by the Board in those cases in which such agent or attorney-in-fact (a) is acting solely for and on behalf of such member and is neither directly nor indirectly acting in his or her own behalf or in behalf of any third person or (b) is a partner of the member firm or an officer in a member corporation with which such member is associated as a member.
If the amount of any sum payable under the provisions of this Section cannot for any reason be immediately ascertained and determined, the Board may, out of the proceeds of the membership, reserve and retain such amount as it may deem appropriate, pending determination of the amount so payable.
Sec. 12.
Sec. 13.
(1) the member organization continues in business, and
(2) the deceased member shall have agreed in a writing filed with the Exchange that such continuing member organization, if permitted by the Board to have the status of a member organization, shall be entitled to have the use of his or her membership from the date of his or her death until the termination of such status of such continuing organization or until a member of the Exchange becomes associated with such organization as a member and that, subject to this Constitution and the rules of the Exchange, the proceeds of his or her membership shall be an asset of the continuing member organization during such period, and
(3) such continuing member organization shall be permitted by the Board to have the status of a member organization,
Sec. 14.
Sec. 1.
[(a) A class of twelve directors to serve for a term of two years, six of
[(b) A class of four members of the Nominating Committee to serve for a term of two years, two of whom shall be persons who would, were they directors, satisfy the definition of public director, and two of whom shall be persons who would, were they directors, satisfy the definition of industry director,]
[(c) Two trustees of the Gratuity Fund who shall be regular members (and not lessor members), to serve for a term of three years,
(d) Qualified persons to fill any vacancies in the Board, the Nominating Committee, or the trustees of the Gratuity Fund.]
(c) qualified persons to fill any vacancies among the trustees of the Gratuity Fund.
The annual meeting shall be held in the Board room of the Exchange or at such other place as may be fixed in advance by the Board. At the annual meeting, the Board shall present a report for the preceding fiscal year as prescribed by law.
Sec. 2.
Sec. 3.
For the purpose of determining the results of an election in which there are more nominees than there are offices to be filled in a class of directors, the Nominating Committee, prior to the time when the names of nominees are reported to the Exchange, shall advise the Secretary of the Exchange which of the nominees named by it for such class are:
(a) qualified to serve as public directors, and of these:
(i) which are associated with corporations that are not financial institutions and are the issuers of securities that are admitted to dealings upon the Exchange, and
(ii) which are associated with financial institutions that are significant investors in equity securities; or
(b) qualified to serve as industry directors, and of these:
(i) which are associated with member organizations that engage in a business involving substantial direct contact with securities customers,
(ii) which are registered as specialists and spend a substantial part of their time on the floor of the Exchange,
(iii) which is associated with a member organization that has its principal place of business in the metropolitan area of New York City, is not national in nature and is not engaged in activities as a specialist,
(iv) which spends a majority of his or her time on the floor of the Exchange, has as a substantial part of his or her business the execution of transactions on the floor of the Exchange for other than his or her own account or for the account of his or her member organization, but is not registered as a specialist, and
(v) which of those described in (i) above reside and have their principal places of business outside the metropolitan area of New York City.
The Board, prior to such time, shall determine which of the nominees named by petition for any class of directors fall within one or more of the categories specified above.] In the case of a tie vote, the names of the nominees involved shall be referred to the Board
Sec. 4.
Sec. 5.
Sec. 6.
Sec. 7.
Sec. 8.
Sec. 9.
(i) any sale, lease, exchange or other disposition of all, or substantially all, the assets of the Exchange,
(ii) any merger or consolidation in which the Exchange is to participate as a constituent corporation within the meaning of the New York Not-For-Profit Corporation Law, and
(iii) any dissolution or final liquidation of the Exchange.
(b) Each physical access member in good standing shall be entitled to one vote, and each electronic access member in good standing who became such prior to [the effective date referred to in subsection (c)]
(i) any sale, lease, exchange or other disposition of all, or substantially all, the assets of the Exchange,
(ii) any merger or consolidation in which the Exchange is to participate as a constituent corporation within the meaning of the New York Not-For-Profit Corporation Law,
(iii) any dissolution or final liquidation of the Exchange,
(iv) any proposal to amend any of the rights and privileges or limitations thereon pertaining to such a member, or
(v) any election or amendment concerning the Gratuity Fund or the trustees of the Gratuity Fund.
(c) An electronic access member who becomes such on or after [the effective date]
(d) Whenever any corporate action, other than the election of a person to a position or office, is to be taken by vote of the members, it shall, except as otherwise required by law or by th[is]
Sec. 10.
Sec. 1.
The Board may prescribe and impose penalties for the violation of rules adopted pursuant to this Constitution and for neglect or refusal to comply with orders, directions or decisions of the Board or for any offense against the Exchange, the penalty for which is not specifically prescribed by this Constitution.
Each person elected to the Board
[Sec. 2. Composition of Board. The Board shall consist of twenty-four directors elected by the members of the Exchange, a Chairman of the Board, the Executive Vice Chairman, if there be one, and the President, if there be one. The directors elected by the members shall consist of twelve public directors and twelve industry directors. Directors elected by the members of the Exchange shall be divided into two classes of twelve each (sometimes referred to as class A and class B) whose terms of office shall expire in alternate years. Each class shall consist of six public directors and six industry directors.
(a) the public directors shall include the following:
(i) at least one of the public directors shall be associated with a corporation that is not a financial institution and is the issuer of securities that are admitted to dealings upon the Exchange, and
(ii) at least one of the public directors shall be associated with a financial institution that is a significant investor in equity securities.
(b) the industry directors shall include the following:
(i) two of the industry directors in class A and three of the industry directors in class B shall be associated with member organizations that engage in a business involving substantial direct contact with securities customers and shall reside and have their principal places of business within the metropolitan area of New York City, and
(ii) one of the industry directors of each class shall be associated with a
(iii) one of the industry directors in class A and two of the industry directors in class B shall be registered as specialists and shall spend a substantial part of their time on the floor of the Exchange, and
(iv) one of the industry directors in class A shall be associated with a member organization that has its principal place of business in the metropolitan area of New York City, is not national in nature and is not engaged in activities as a specialist, and
(v) one of the industry directors in class A shall spend a majority of his or her time on the floor of the Exchange, shall have as a substantial part of his or her business the execution of transactions on the floor of the Exchange for other than his or her own account or for the account of his or her member organization, but shall not be registered as a specialist.
No person who has been elected a director by the membership to three consecutive terms shall be eligible for election as a director except after an interval of at least two years. Each person who is not a member of the Exchange and is elected to the Board shall, by the acceptance of the position of director, be deemed to have agreed to uphold this Constitution.]
[Sec. 3.
[Sec. 5.]
[Sec. 6.
[Sec. 7.
Sec. 8.
Sec. 9.
Sec. 10.]
Sec. [11.]
Sec. [12.]
Sec. [13.]
(3)
Sec. 14.
Sec. 15.
Sec. 1.
(a) Four persons who would, were they directors, satisfy the definition of public director; and
(b) Four persons who would, were they directors, satisfy the definition of industry director.
The members of the Nominating Committee shall be divided into two classes of four each whose terms of office shall expire in alternate years. Each class shall consist of two persons described in (a) above, and two persons described in (b) above.
On the first Monday after the annual election of the Exchange, or as soon thereafter as may be practicable, the members of the Nominating Committee, by the affirmative vote of a majority of such members, shall elect a chairman who shall be a member of the Nominating Committee and who shall serve until the next annual meeting of the Nominating Committee and until his or her successor is elected and takes office. The chairman of the Nominating Committee shall not succeed himself or herself as chairman and the office of chairman shall alternate from year to year between a member of the Nominating Committee described in (a) above and a member of the Nominating Committee described in (b) above.
No director shall be eligible to serve on the Nominating Committee. No member of the Nominating Committee who has served the full term for which he or she was elected by the membership shall be eligible for reelection to the Nominating Committee in the year during which such term expires. No member of the Nominating Committee who has been elected to fill a vacancy in the Nominating Committee shall be eligible for reelection to the Nominating Committee in the year during which the term of the member being replaced expires. Any vacancy in the Nominating Committee shall be filled by the remaining members thereof, who shall elect a person qualified to fill the vacancy who shall serve until the next annual election of the Exchange and until his or her successor is elected and takes office. The Board shall have no control over or power with respect to the Nominating Committee. Nothing in this Section is to be construed to prevent the Nominating Committee from soliciting the views of the Chairman or other members of the Board.
Sec. 2. Public Meetings. The Nominating Committee shall hold one or more meetings, to which all members and allied members shall be invited for the purpose of suggesting nominees for the offices and positions to be filled at the annual election of the Exchange. The Nominating Committee shall report to the Secretary of the Exchange, not later than the second Monday in March, nominees for such offices and positions. Each nominee shall be a person who, in the opinion of the Nominating Committee, is eligible for election to the office or position for which he or she is nominated. The Secretary of the Exchange shall, on receipt of the report of the Nominating Committee, notify the members of the Exchange of the names of such nominees. The Chairman of the Board shall serve in a consultative role to the Nominating Committee. In that capacity the Chairman of the Board shall meet with the Nominating Committee prior to March 1 of each year to report on the needs of the Board and to provide any other information relevant to the work of the Nominating Committee.
Sec. 3. Nominees by Petition. Members of the Exchange may propose by petition nominees for the offices or positions to be filled at the elections prescribed by this Constitution. Any such nominee must be endorsed by not less than forty members and no member shall endorse more than one nominee, provided, however, that one hundred members may, by petition, propose an entire ticket or any portion thereof. The petitions shall be filed with the Secretary of the Exchange in sealed envelopes within two weeks after the date fixed for the report of the Nominating Committee. The Nominating Committee and the Secretary of the Exchange shall open such envelopes and shall report to the Board the names of the persons nominated by petition who, if found eligible for election by the Board, shall be deemed nominees for such offices or positions.
Sec. 4. Names of Nominees. The names of all nominees shall be arranged on the ballot in alphabetical order for each class of office or position and shall be reported to the Exchange promptly after the Board shall have passed upon the eligibility of the persons nominated by petition. The names of the persons nominated by the Nominating Committee shall be identified by an appropriate legend or symbol.
Sec. 5. Death, etc., of Nominee. In case of the death, withdrawal, disqualification or failure to qualify, at any time in advance of the annual election, of any nominee for one of the offices or positions to be filled at such annual election, the election of a person to fill such office or position shall not be held at the annual meeting of the members of the Exchange, but this shall not delay the election of persons to fill all other offices or positions. The Board, by the affirmative vote of a majority of the entire Board, thereupon may declare such office or position vacant and if the election for such office or position was not contested may elect a person to fill the vacancy to hold office until the annual election of the Exchange in the succeeding year. Prior to filling such vacancy, the Board shall request the Nominating Committee to submit to the Board the name of the person recommended by the Nominating Committee to fill such vacancy. If such election was contested, the Board shall direct that such office or position be filled by vote of the members of the Exchange entitled to vote thereon at a special meeting of the members. If such special meeting shall be directed, the Board shall call the meeting and determine the procedure for nominations and voting by proxy at the meeting.
Sec. 6. Selection of Nominees. The Nominating Committee in seeking nominees for all offices and positions shall propose persons who, in the opinion of the Nominating Committee, are committed to serving the interests of the public and strengthening the Exchange as a public securities market.
In selecting nominees who are to be members of the Nominating Committee, the Nominating Committee should consider representatives from all Exchange constituencies, taking care to avoid having an undue concentration of such nominees from any one area or industry.
In seeking nominees who are to be public directors, the Nominating Committee should consider, among others, representatives of corporations, the securities of which are admitted to dealings upon the Exchange and representatives of financial institutions, such as investment companies, banks and trust companies, and insurance companies, which are significant investors in equity securities, care being taken to avoid having an undue concentration of such nominees from any one area or industry.]
Sec. 1. [Titles]
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Sec. 3.
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Sec. 5.
Sec. 6.
Sec. 1.
Sec. 2.
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Sec. 4.
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In any disciplinary proceeding involving as a respondent therein a registered or non-registered employee of a member or member organization who is not a member or allied member, the members of the hearing board serving on the panel shall be registered employees or non-registered employees of members or member organizations who are not members or allied members. In any such proceeding relating to such employee's activities on the floor of the Exchange, at least one of the persons serving on the panel shall be a registered or non-registered employee of a member or member organization active on the floor of the Exchange who is not a member or allied member.
In any such proceeding relating to any other activities, at least one of the persons serving on the panel shall work in the office of a member or member organization which engages in a business involving substantial direct contact with securities customers.
In any disciplinary proceeding involving as joint respondents therein one or more members or member organizations, allied members or approved persons, together with one or more registered or non-registered employees of a member or member organization who are not members or allied members, at least one of the persons serving on the panel shall be a member or allied member and at least one other person serving on the panel shall be a registered or non-registered employee of a member or member organization who is not a member or allied member, and the functional qualifications required of hearing panel members as stated in this Section shall be satisfied.
The decision of a majority of the panel shall be the decision of the panel and shall be final and conclusive, unless a request to the Board for review is filed as provided in this Article and in the rules of the Exchange.
Sec. 5.
Sec. 6. Review [by Board]. In a disciplinary proceeding not involving a written consent to the imposition of a specified penalty, any member, member organization, allied member, approved person, or registered or non-registered employee of a member or member organization, adjudged guilty of any charge, or the division or department of the Exchange which brought the charges, or any member of the Board
In a disciplinary proceeding involving a written consent to the imposition of a specified penalty, any member of the Board
Sec. 1. Amount fixed by Board. (a) The membership fee payable by a regular or lessee member, exclusive of fines and of such other charges as may be imposed pursuant to this Constitution and of contributions to the Gratuity Fund, shall be fixed by the Board from time to time and shall not exceed $1,500 in any calendar year. Such membership fee shall be payable in advance on the first of each month.
(b) The membership fee payable by a physical access member, with respect to each year of such membership, exclusive of fines and of such other charges as may be imposed pursuant to this Constitution, shall be the sum of (i) the average of the annual rentals payable under the bona fide leases of membership entered into during the six calendar months (or another period representative of the current lease market) prior to the beginning of such year, (ii) $1,500, and (iii) with respect to the first year of such membership only, $5,000; provided, however, that if at any time the membership fee payable pursuant to Section 1(a) of this Article is in excess of, or less than, $1,500 per year, the amount provided in clause (ii) above shall be correspondingly increased or reduced, and if the maximum amount payable by a new member described in Section 4(a) or (b) of Article II is in excess of, or less than, $5,000, the amount provided in clause (iii) above shall be correspondingly increased or reduced. Such membership fee shall be paid in full prior to admission to membership, and prior to any renewal of such member's membership.
(c) The membership fee payable by an electronic access member, exclusive of fines and of such other charges as may be imposed pursuant to th[is]
Sec. 2. Exemption to Members in Armed Forces. The Board may, on the request of a member who, in time of national emergency,
(a) is on active duty in the armed forces of the United States, or
(b) is on active duty in the armed forces of any nation or state which is then allied or associated with the United States,
Sec. 3. Allocation of Membership Fees. The membership fees payable by any regular or lessee member may be divided by the Board into two parts, one of which shall constitute the member's contribution to the current expenses of the Exchange for the quarter, as estimated by the Board, and the other of which shall constitute the member's contribution towards the capital investment of the Exchange, which shall include advances to its subsidiaries to cover capital expenditures.
Sec. 4. Charges on Floor Transactions. The Board may, from time to time, fix and impose a charge upon members and member organizations, measured by the number of, the value of, the number of shares, warrants, rights or bonds associated with, or the commissions or net commissions on, transactions effected on the Exchange. The total charges imposed on any member or member organization pursuant to this paragraph relating to purchases and sales of stocks and bonds on the Exchange during any calendar month shall not exceed two percent of the total of the net commissions of such member or member organization relating to such purchases and sales during such month. Such charge shall be payable at such times and shall be collected in such manner as may be determined by the Board.
The Board may, from time to time, fix and impose a charge upon members and member organizations measured by their respective odd-lot purchase and sales transactions as odd-lot dealers on the Exchange. The amount of such charge shall not exceed one quarter of one cent per share on any odd-lot purchase or sale. Such charge shall be payable at such time and shall be collected in such manner as may be determined by the Board.
Sec. 5.
Sec. 6.
(b) Whenever the Treasurer shall report to the Chairman of the Board that a member organization has neglected to pay a fine or any other sums due the Exchange within forty-five days after the same shall become payable, any member in such member organization, after written notice mailed to such member of such arrearages, may be suspended by the Board until payment is made.
(c) Whenever the Treasurer shall report to the Chairman of the Board that an allied member has neglected to pay a fine or any other sums due the Exchange within forty-five days after the same shall become payable, the allied membership of such allied member shall terminate, unless the Board shall have granted an extension of time to pay such fine.
(d) Should any payment referred to in this Section not be made within one year after payment is due, the membership of a delinquent regular or lessee member may be disposed of by the Board on at least ten days' written notice mailed to such member (and to the lessor of such membership, if any) at the address registered with the Exchange.
Sec. 7.
The suspension of a member under the provisions of this Article shall create a vacancy in any office or position held by him or her.
Sec. 8.
Sec. 9.
Sec. 1.
Sec. 2.
Sec. 3.
Sec. 1.
Indemnification shall be accorded by the Exchange, and related expenses may be advanced, in respect of members of any committee authorized by this Constitution or by the Board
Sec. 1.
Sec. 2.
The term “attack” for the purpose of this Article means and includes any attack, actual or imminent, or series of attacks by an enemy or a foreign nation upon the United States causing, or which may cause, substantial damage or injury to civilian property or persons in the United States in any manner by sabotage or by the use of bombs, shellfire, or nuclear, radiological, chemical, bacteriological, or biological means or other weapons or processes.
The term “emergency committee” for the purpose of this Article shall mean a committee of six members composed as provided in Section 3 of this Article.
The term “period of emergency” for the purpose of this Article shall mean the period commencing with the vesting of the powers of the Board in the emergency committee and ending on the date when the New York State Defense Council declares that the period of attack has ended or on such earlier date as may be fixed (a) by the Board in office at the inception of the emergency or (b) by a majority vote of the membership at a special meeting of the members called for the purpose or (c) by the emergency committee. On the date so declared or so fixed all of the committee's powers shall revert to the Board.
If there are any vacancies in the Board on the date the emergency committee's powers are to revert to the Board, the emergency committee may make such provisions as it deems advisable for the election, by the members of the Exchange, of persons to fill such vacancies and may, in connection therewith, fix the time, place and manner of nominating persons to fill such vacancies and the time and place for a special meeting of the members of the Exchange for the purpose of such election.
Sec. 3.
The seniority of a director or former director for the purpose of this Article shall be determined by the length of time he or she has served as a director (including service as Chairman of the Board) whether or not his or her terms of service have been consecutive.
After the emergency committee has been initially constituted as above provided, the committee shall fill any vacancies which occur by appointing directors or former directors of the Exchange, may increase the number of such directors and former directors who constitute the committee, and thereafter may reduce such number, provided the number is not reduced below five. In filling vacancies and in adding members to the committee, seniority shall not control. The emergency committee may remove any member of the committee with or without cause.
In the event that at any time during the emergency there are less than three members of the committee available and able to meet together, the vacancies shall automatically be filled in the same manner as the committee was originally constituted.
Sec. 4.
Three members of the emergency committee shall be sufficient to constitute a quorum for any meeting of that committee, and any action taken pursuant to the vote of a majority of the members of the committee present at a meeting shall be deemed to be the action of the committee, even though this Constitution requires a specified vote by the members of the Board had that action been taken by the Board.
Any action by an emergency committee shall be valid and binding as if taken by the Board if such committee certifies that it is the properly constituted emergency committee even though it may subsequently develop that at the time of such action the committee was not a duly qualified emergency committee.
If the emergency committee elects a person to an office which it believes to be vacant, the acts of such newly elected officer shall be valid and binding although it may subsequently develop that such office was not in fact vacant.]
Sec. 1.
Sec. 2.
After any amendment proposed by the petition of members shall have lain upon the table for two weeks the Board shall, at the next regular meeting of the Board, or at a special meeting called for the purpose, and in any event within seven weeks after the proposed amendment has been presented to the Board, direct that it be submitted, with or without the approval of the Board, to the members entitled to vote thereon (or to all members if required by law) at a special meeting of the members called for the purpose.
In the event that any amendment proposed by one or more directors
With the notice of special meeting, the Secretary of the Exchange shall furnish a form of proxy [designating not less than three]
Sec. 3.
Sec. 4.
Sec. 1.
Sec. 2.
Sec. 3. Payments on Death. The faith of the Exchange is hereby pledged to pay, within one year after the proof of death of any member, out of the money collected under the provisions of this Article, the respective amount hereinafter set forth according to the length of time that has elapsed between the date when the deceased became a member and the date of his or her death, namely
Sec. 4. To Whom Paid. Should the member die leaving a surviving spouse and no child or children and no issue of a deceased child or children, then the whole sum shall be paid to such surviving spouse for his or her own use.
Should the member die leaving a surviving spouse and a child or children or the issue of a deceased child or children, then one-half shall be paid to the surviving spouse for his or her separate use. The remaining one-half shall be paid to and divided among the child or children and the issue of any deceased child or children, such issue to take per stirpes and not per capita. If any such child or issue shall be a minor, his or her share shall be paid to his or her duly appointed guardian of the property.
Should the member die leaving a child or children or the issue of a deceased child or children and no surviving spouse, then the whole sum shall be paid to the children and such issue as directed in the preceding paragraph to be done with the moiety.
Should the member die leaving neither surviving spouse, child nor issue of a child, then the whole sum shall be paid to the same persons who would, under the laws of the State of New York, take the same by reason of relationship to the deceased member had he or she owned the same at the time of his or her death; and if there be no such person, then the amount applicable under Section 3 of this Article in such case shall be held by the trustees of the Gratuity Fund for the general purposes of that Fund.
The words “child” and “children” where used in this Section shall, for the purposes of this Article, be deemed to include an adopted child or children of the deceased member, provided, however, that such adoption shall have been in such manner and form that it will be recognized as valid by the courts of the State of New York; the word “issue” where so used shall, for such purposes, be deemed not to include an adopted child or children.
In case any person entitled to any gratuity shall be under age and have no guardian entitled to receive payment at the maturity thereof, the trustees may, in their discretion, deposit such money with a bank or other financial institution as the property of, and in trust for, such minor; and in like manner if any person apparently entitled to any payment fails to claim it, or has disappeared or cannot be found after reasonable inquiry, the trustees may deposit the presumptive share of such person with a bank or trust company to the credit of the “trustees of the Gratuity Fund of the New York Stock Exchange, Inc., in trust,” to the end that it may be paid to such person, if afterwards found, or otherwise to the parties who may subsequently establish their right thereto; a similar discretion shall apply in the case of any dispute between claimants for a gratuity or a portion thereof.
In all cases a certified copy of the proceedings before a Surrogate or Judge of Probate shall be accepted as proof of the rights of the claimants, shall be deemed ample authority to the Exchange to pay over the money, shall protect the Exchange in so doing, and shall release the Exchange forever from all further claims or liability whatsoever.
Sec. 5. Limited Liability. Nothing herein contained shall ever be taken or construed as a joint liability of the Exchange or its members for the payment of any sum whatever; the liability of each member, at law or equity, being limited to the payment of the dollar amount described in Section 2 of this Article only on the death of any
Sec. 6.
Sec. 7.
The “net worth” of the Gratuity Fund shall be determined by the trustees at a meeting in the last month of each quarter and shall be that amount by which, as of the close of the month preceding, the total assets (including cash, accounts receivable and investments stated at their market values but exclusive of accrued interest and accrued dividends) exceeded all known liabilities.
Sec. 8.
Sec. 9.
Sec. 10.
Securities held by the trustees may be in coupon or registered form. Securities held in registered form shall be registered in the name of the “trustees of the Gratuity Fund of the New York Stock Exchange, Inc.”, but without specifying the individual names of such trustees, and may be disposed of and assigned by any four of such trustees.
Sec. 11.
Sec. 12.
(1) Place responsibility for governance, compensation and internal controls, as well as for supervision of regulation, in the hands of a Board of Directors that is independent both from NYSE management and from the members, member organizations and listed companies.
(2) Separately preserve the existing engagement of the broker-dealer community and listed company community with the NYSE by creating a Board of Executives that will also include the executives of major public and private “buy side” entities as well as lessor members.
(3) Make transparent our governance process, its participants, their compensation, and our charitable donations and political contributions.
I also seek “fast track” authority from you to effect these changes and enable the new, independent Board to appoint the Board of Executives and to otherwise assume its responsibilities immediately following your vote.
You know the background. The Exchange has evolved over many years, and its Board and management have had to deal with industry, issuer, operational and governance issues of increasing complexity. Recently, we have all been embarrassed by a set of problems that has hurt the Exchange and revealed the clear need to change our structure and processes at the top.
I am asking that we reconstitute our Board. It will have between six and twelve members, all of whom will be independent, as well as a Chairman and a Chief Executive Officer (if he or she is not also the Chairman). The directors will be fiduciaries owing their loyalty to the NYSE. The proposed slate is as follows:
(1) Madeleine K. Albright
(2) Herbert M. Allison, Jr.
(3) Euan D. Baird
(4) Marshall N. Carter
(5) Shirley Ann Jackson
(6) James S. McDonald
(7) Robert B. Shapiro
(8) Sir Dennis Weatherstone
If you elect these individuals as your initial Board, they will serve until June 2004. Thereafter, the entire Board will stand for election in June of each year.
It is important that the role and responsibility of the Board be clear and that a mechanism for self-appraisal and continual improvement be in place. This letter and the attached proxy statement describe this for your information—in essence, the Board's responsibilities are to supervise our regulatory function; monitor marketplace performance and competitive position; engage with and approve strategy; hire, fire and pay the management; ensure an appropriate management succession plan; and ensure appropriate behavior.
In order for the NYSE to function effectively and continue as a spokesperson for the industry, the Board and our management must engage with the member owners and with senior voices from our constituents—our listed companies, the buy side and sell side entities, and the trading Floor. To this end:
(1) The Board of Directors will appoint a Board of Executives made up of approximately 20 constituent representatives, balanced among the major broker-dealers, the “Floor,” lessor members, institutional investors and large public funds, and listed companies. Members of the Board of Executives will have the same fiduciary duties to the NYSE as its officers have.
(2) The Board of Executives will meet at least six times a year and will discuss Exchange performance, membership issues, listed company issues and public issues relating to market structure and performance.
(3) The Board of Directors will meet with the Board of Executives in joint session several times during each year contemporaneous with its own meetings, and will receive reports of the deliberations of the Board of Executives. Members of the Board of Executives will serve on some of the Committees with members of the Board of Directors.
(4) The Board of Directors will stay in touch with the membership in a variety of ways, including meeting separately at the end of each year with the lessor and Floor representatives on the Board of Executives.
In order to work effectively, the Board of Directors will need to appoint several Committees. Given the Board's small size, it can also simply appoint Committee Chairmen and function as a Committee of the whole.
Each year following its election, the Board will organize itself. As of this writing, I anticipate that the Board will have:
(1) An Audit Committee and a Regulatory Oversight & Regulatory Budget Committee to ensure proper controls and regulatory supervision are in place.
(2) A Human Resources & Compensation Committee to ensure that we have good management that is paid appropriately.
(3) A Nominating & Governance Committee to ensure that the Board of Directors and Board of Executives function well and that appropriate people are nominated for the Board and appointed to the Board of Executives.
The Board will also appoint some of its members to Committees (joint with Board of Executives members) dealing with the Quality of Markets, Market Structure and Strategy, Finance, and appeals of disciplinary actions and de-listings. The Board will create and combine committees as warranted.
The Board will choose a Chairman and a CEO annually in June. If the Board of Directors identifies a person able to lead both it and the Board of Executives and to discharge the functions of chief executive, it may combine the two roles. Otherwise, it will select a different person for each role. I will continue in both roles until the new Board of Directors chooses my successor(s), which I hope will be before the end of this year. I have indicated to the Board nominees my willingness to thereafter remain on the Board, if appropriate.
The workings of the Board of Directors and its governance must be transparent. To that end:
(1) Prior to the Annual Meeting, we will publish a proxy statement disclosing the Board Committee charters and the Committee reports on their activities for the year; membership on the Board, on the Board of Executives, and on the various standing and advisory Committees; the facts establishing each Board member's independence, including any non-director relationship between Board members and the NYSE itself and any material relationships among Board members; and Board compensation.
(2) We will publicly disclose information regarding the means by which members and investors may communicate with the NYSE's non-management directors.
(3) The annual report of the Human Resources & Compensation Committee will detail compensation decisions for the top five officers, the existence of any contracts for these individuals and the compensation for the top management team as a whole. The Committee will detail the competitive comparisons and performance judgments that guided their recommendations.
(4) The Nominating & Governance Committee will explain its nominations and make public the procedures that are in place to ensure that appropriate potential nominees are found and considered.
(5) The Board of Directors will detail the considerations that lead to membership on the Board of Executives, and the current membership. A report of the activities of the Board of Executives will be included in the proxy statement.
(6) The various advisory committees of the NYSE will be identified and described, and their members listed in the proxy statement.
(7) An annual report detailing the charitable activities of or on behalf of the Exchange, including the activities of the NYSE Foundation, will be included with the proxy statement.
(8) A report disclosing NYSE political activities, including a list of political contributions made by any NYSE PAC, will be made available prior to the annual meeting.
The logic supporting these proposed changes is straightforward.
(1) The NYSE needs a competent, engaged Board without conflicts and dedicated to the NYSE's long-term interests.
(2) The NYSE will not recover its voice and legitimacy as leader of the U.S. capital markets until it is seen as an example of good corporate governance and capable of properly managing its own affairs. An “insider board” is not acceptable—not in general and certainly not as a supervisor of our regulatory responsibilities.
(3) The members of the Exchange need to be kept informed of Board decisions and have access to the Board through full disclosure, direct interaction, an annual meeting and an open election of the Board itself.
(4) The NYSE has to be deeply engaged with listed companies and buy and sell side firms, as well as member owners, through substantive, focused interaction.
This letter seeks to highlight some of the most important changes that I propose in your governance architecture and the reasons why I recommend them to you.
To assure that you understand my proposals and to afford you the opportunity to ask questions, I plan to hold several meetings in various locations. You are invited to attend any of the following meetings at the location of your choice:
Please call this toll-free number if you plan to attend and we will give you the details: 1-888-410-7850. You may also contact us via email at
The matters to be acted upon are described more fully in the accompanying Proxy Statement.
If I can have your support, we will have a solid and independent Board of Directors directly elected by the members, and a Board of Executives able to ensure our continued centrality to constituent concerns. This arrangement will serve you, the Exchange itself and most importantly, the investing public.
I ask for your vote.
Best,
/s/ John S. Reed,
John S. Reed.
Only members of record and in good standing at the close of business on November 18, 2003 will be entitled to vote at this meeting or at any adjournments thereof.
The New York Stock Exchange, Inc. is the world's premier equities market. A broad spectrum of participants, including individual investors, institutional investors, listed companies, and members and member organizations, create the NYSE auction market. The NYSE is committed to serving the interests of public investors in equities by maintaining the most efficient, liquid, fair and orderly markets in the world.
The NYSE, founded in 1792, is a New York not-for-profit corporation which was first incorporated in 1971. The NYSE's executive offices are located at 11 Wall Street, New York, New York 10005; telephone: (212) 656-3000.
This Proxy Statement is being furnished to NYSE members in connection with the solicitation of proxies for use at a special meeting to be held on November 18, 2003, at 4:30 p.m. New York time, in the Board room at the New York Stock Exchange, Inc., 11 Wall Street, New York, New York 10005 (the “Special Meeting”). The purpose of this Special Meeting is for you to consider and vote upon a proposal to approve an amended and restated Constitution, which provides for a number of significant changes to the governance of the NYSE, and to elect a new Board of Directors of the NYSE upon adoption of the amended Constitution. If elected, these directors will serve until the next annual meeting of members, scheduled for June 3, 2004.
Each regular member in good standing shall be entitled to one vote on the proposal to amend and restate the Constitution and on each position to be filled. Each physical access member in good standing shall be entitled to one vote, and each electronic access member in good standing who became such prior to March 30, 1986 shall be entitled to one-half vote. All members of record in good standing on the date of the mailing of notice are entitled to notice of the Special Meeting and those members in good standing as of the date of such meeting, or at any adjournment, are entitled to vote at the meeting. As of the date of this notice, there are 1365 regular members and 4 physical access members in good standing, and 2 electronic access members in good standing who became such prior to March 30, 1986 (one-half vote each).
The amended and restated Constitution shall be authorized by a majority of the votes cast by the members entitled to vote thereon, in person or by proxy, at the Special Meeting, if a quorum is present. Members entitled to cast a majority of the total number of votes entitled to be cast (1370), present in person or by proxy will constitute a quorum.
If you vote by signing a proxy, your votes at the Special Meeting will be cast as you indicate on your proxy card. If no instructions are indicated on your signed proxy card, your votes will be cast FOR the approval and adoption of the amended and restated Constitution and FOR the election of the new Board of Directors. If you cast your votes through the Internet or by telephone or fax, your votes will be cast at the Special Meeting as instructed.
You may revoke your proxy at any time before the proxy is voted at the Special Meeting. A proxy may be revoked prior to the vote at the Special Meeting in any of three ways:
• by submitting a written revocation dated after the date of the proxy that is being revoked to the Secretary of the New York Stock Exchange, Inc., 11 Wall Street, New York, NY 10005;
• by submitting a later-dated proxy by mail, telephone, fax or Internet; or
• by attending the Special Meeting and voting by paper ballot in person.
Attendance at the Special Meeting will not, in itself, constitute revocation of a previously granted proxy.
The NYSE will pay the costs associated with printing this Proxy Statement and soliciting proxies for the Special Meeting. Our officers and employees may solicit proxies by telephone, mail, the Internet or in person. We have retained MacKenzie Partners, Inc. to assist us in the solicitation of proxies, using the means referred to above, and will pay fees of up to $15,000, plus reimbursement of out-of-pocket expenses.
If no quorum exists of members present or represented by proxy, the Special Meeting shall be adjourned to reconvene at the same time and place on the day two weeks thereafter by members who are present or represented by proxy. If a quorum shall not then be assembled, the meeting shall be dissolved and the proposed amendment shall not become effective. At the adjourned meeting, if a quorum is present or represented by proxy, the members may transact any business that might have been transacted at the original meeting.
It is the Exchange's policy that all proxies, ballots, and voting tabulations, including telephone, Internet and fax voting, that identify members be kept confidential. The Exchange has engaged IVS Associates to count the votes represented by proxies, ballots and cast by phone. Creighton Dunlop and William Marsh, employees of IVS, will be appointed Inspectors. The Exchange will pay IVS a fee of $5,500 plus reasonable out-of-pocket expenses for this service.
At the NYSE Special Meeting, NYSE members will be asked to vote upon a proposal to amend the Constitution to enhance the NYSE's corporate governance structure. To implement the proposed corporate governance reforms, members will also be asked to vote for the election of directors. Approval of the amendments to the NYSE Constitution is a condition to the election of the nominees for directors. Therefore, if NYSE members wish to approve the new slate of directors, they must also approve the amended and restated Constitution.
Recent events have demonstrated that the NYSE's corporate governance structure has not kept pace with either the best practices in corporate governance that have developed over the last three decades or the tremendous changes in the nature of the Exchange's constituents. Just as corporate America is re-examining and improving its own corporate governance in the context of a changing environment, so too must the NYSE.
In March 2003, Securities and Exchange Commission (“SEC” or “Commission”) Chairman William H. Donaldson asked the New York Stock Exchange, Inc. and the other self-regulatory organizations to review their corporate governance in light of the broad review of governance practices throughout corporate America, to ensure that their governance structures and practices serve the public well. In April 2003, the NYSE Board created the Special Committee on Governance of the NYSE and charged it with reviewing the NYSE's governance with a view to making appropriate reforms. In June 2003, the Special Committee issued an Initial Report to the Board, which contained ten governance reforms that the Board put into effect immediately.
The Special Committee continued its work through the summer, reaching out to a broad range of individuals and organizations representing investors, listed companies and members. The Special Committee held five days of hearings in which it heard testimony from 32 groups and individuals. It received six additional written
Interim Chairman Reed accepted his current position with the goal of revamping the Exchange's governance to resolve conflicts of interests and to increase transparency. He committed the NYSE to complying with the governance standards comparable to those to which its listed companies adhere, and to going beyond those standards in order to meet the special challenges of serving as both a marketplace and a self-regulatory organization.
Following further study, including extensive discussions with the NYSE's varied constituencies and the SEC, Interim Chairman Reed developed the governance structure that forms the basis of the Constitutional amendments: the engaged separation of the Board of Executives (constituent representatives) from the Board of Directors (independent fiduciaries). That approach departs from the approach espoused by the Special Committee, which struggled to retain independent directors and constituent representatives in the same governance body. However, the dual board approach otherwise extends the Special Committee's recommendations: except for five of them that cannot be addressed until the new Board is constituted, all of the Special Committee's recommendations have been incorporated into the proposed amended and restated Constitution, either literally or in concept, or are otherwise reflected in this proxy statement.
The next several pages discuss in more detail than the cover letter many of the important changes that your vote will effect, and also provide collateral information. The amended and restated Constitution reflecting these changes is attached as Annex A to this proxy statement. In addition, attached as Annex B is the amended and restated Constitution marked to reflect the revisions from the existing Constitution. A diagram depicting the separate, but engaged, independent and constituent boards is attached as Annex C. While the cover letter and the discussions below seek to bring to your attention many of the important changes that your vote will effect, members are urged to carefully review the marked Constitution so they will see the specific language used to effect the new governance architecture.
The Board of Directors, including its Chair, is ultimately responsible to the members of the Exchange (owners) and to the investing public for the performance of the NYSE. The Chair is specifically responsible for the proper functioning and the performance of the Board. To that end:
The Board will (a) overview the performance of the Exchange, its relationships with the investor, listed company and broker community and its role as a public voice, (b) overview the performance of the Exchange's responsibility as a regulator of the trading Floor, of the broker-dealer community and of listed companies and its relationship with other regulators, (c) overview management's assessment of the Exchange's exposure to risk, both in its regulatory and business functions, and (d) act as the final approval authority on the budget, with a separate process for the budget and staffing for the regulatory function, on major expenditures, technology spending and plans and rules or relationship changes. With regard to the above, the Board will understand management's plans and aspirations and will be kept current with regard to progress or problems related to them.
The Board will be kept apprised of the strategic position of the Exchange and of the many currents impacting on the Exchange's evolution as a business and as a regulator. It will provide advice and counsel to the management and approve plans and decisions impacting this evolutionary pathway.
The Board will assure appropriate behavior through the work of the Audit Committee and the Regulatory Oversight & Regulatory Budget Committee and through an annual assessment of management which takes into account both operational performance and its leadership behavior—emphasizing integrity, respect for the people and culture of the Exchange and its public role.
The Board will assess management performance, create and oversee appropriate compensation and recognition practices, and hire/fire individuals in management positions as needed. The Board will ensure that appropriate management succession and development plans are in place and functioning.
On an annual basis, in Executive session, the Board will discuss its own performance. It will at least ask each director to indicate (a) if the Board's responsibilities are clear, understood and appropriate, (b) if he/she feels that he/she has appropriate, timely and accurate information to reasonably meet his/her responsibilities, and (c) if the organization of the Board, its agendas, Board membership, time and discussions are appropriate to reasonably meet the Board's responsibilities. In each instance, if there is a negative view, ideas for improvement should be discussed, and, if appropriate, implemented. The process will be documented. Importantly, the Board will have the authority that boards of publicly-owned corporations have to amend its own governance by-laws to effect improvements, subject to a special provision for notice to members of proposed changes. Provided that a director is performing well, there is no need for him or her to face term limits and thereby sacrifice his or her familiarity with our unusual institution and institutional memory.
To engage with the senior management and the Board of Directors of the NYSE to review on an ongoing basis (a) Exchange performance, (b) membership issues, (c) listed company issues, and (d) public issues relating to overall market structure and performance.
The Board of Executives will meet regularly (to start: six times per year), will populate committees jointly with the Board of Directors, and will engage in an annual self-appraisal to ensure continuing effectiveness comparable to that described above for the Board of Directors. The Board of Executives will be chaired by the NYSE Chair and include the CEO (if different).
Approximately 20, appointed by the Board of Directors of the Exchange. It will be fairly balanced and include (a) executives of the major broker dealers, (b) representatives from the Floor, (c) lessor members, (d) executives of listed companies, and (e) executives of institutional investors and of large public funds. The Nominating &
The Board of Directors and its Chair are ultimately responsible for the performance of the Exchange, as seen by its owners, the public and its many professional constituencies.
The Chairman is specifically responsible for the proper functioning and performance of the Board.
The Board of Executives is an integral part of the governance process, advising NYSE senior management in both its operational responsibilities and its role as a public spokesperson. The composition, meetings and agenda of the Board of Executives are designed to ensure that the Exchange meets the operational performance requirements of its constituent parties: the Floor community, member organizations, the listed companies and investors, large and small * * * also to provide comment about the regulatory functions—working to ensure that these are tough, but practical and fair * * * and finally, to bring the constituents' point of view to senior management's role as a spokesperson for the U.S. capital markets.
The Board of Directors will meet at least quarterly, and the Board of Executives, at least six times a year. The Board of Directors will join with the Board of Executives on dates when their meetings overlap (probably two to three meetings) and then move to their own Committee and Board sessions.
There are three types of committees: those including directors only (Nominating & Governance, Audit, Regulatory Oversight, and Compensation); those drawn from both boards but with a voting majority of directors (Regulation, Enforcement & Listing Standards); and those drawn from both boards without designated composition (Market Structure & Strategy, Quality of Markets/Public Policy and Finance). All committees will report to the Board.
Each Board and, as appropriate, committee will define a self-assessment procedure which will be appropriately documented. Board processes are expected to improve in response to these assessments.
Below are discussed five areas of particular concern: regulatory function; hiring, firing, compensation and succession; nominations; the engagement of the Board of Directors with the Board of Executives; and engagement with the membership.
The proposed architecture provides for a strong, vigorous and independent regulatory function. The Board will hire a Chief Regulatory Officer whose line reporting relationship will be to the Board's Regulatory Oversight & Regulatory Budget Committee. The Board Regulatory Oversight Committee will determine the Exchange's regulatory plan, programs, budget and staffing proposals annually and will be responsible for assessing our regulatory performance and for recommending compensation and personnel actions involving senior regulatory personnel to the Board's Compensation Committee. The CEO's views on the regulatory function, its plans, programs, staffing and budget will be sought, but the Regulatory Oversight Committee's views on regulatory performance will be recommended through the Compensation Committee to the full Board for approval.
The Board of Directors has the responsibility to hire/fire and compensate the NYSE's senior management, and ensure that an appropriate succession plan is in place. The Board's Human Resources & Compensation Committee will keep current on appropriate benchmarks that will inform compensation recommendations and will evaluate the NYSE's performance and that of key individuals and major units each year as a part of the annual review process. Performance will include “hard measures” such as market share, listing activities, revenues and expenses, but also “softer issues” such as the working environment, culture and morale of the various groups that make up the Exchange, progress that is being made in relationship with the ongoing discussions about market structure and performance, and the relationships of the NYSE with its many constituencies and the SEC. The CEO will interact with the Committee on both compensation and performance (other than his or her own), but the Committee's ultimate decisions will be made in executive session without either management or staff present. The recommendations of the Committee and those that are forwarded from the Regulatory Oversight Committee will be reported to the full Board for its approval.
A six to twelve person Board will be composed of individuals who are “independent” and owe their loyalty to the NYSE. The Board will set the size of its membership within these parameters and can change the size as appropriate between annual meetings. The Nominating & Governance Committee is responsible for proposing a slate of directors for election by the members, except that two or three nominees will be proposed by the Industry Members of the Board of Executives in order to comply with the requirements of the Securities Exchange Act of 1934 (the “Act”) regarding the fair representation of members. Nominees will be selected on the basis of their competence to fulfill the duties and responsibilities of a director—however, a special process will be created to solicit potential candidates who are both qualified and independent from the management and from regulated constituents. If such person is nominated and elected he/she becomes a director with all the attendant obligations and duties and in no way can represent any special interests.
Outlined above are the duties, responsibilities and composition of the Board of Directors, of the Board of Executives, and of the Committees, including joint participation on membership and marketplace issues. As the keystone to the engagement between the two boards, the Board of Directors will meet with the Board of Executives from time to time but, in addition, the Board of Directors will always meet alone. Discussion of issues of importance to the industry involving NYSE operations, regulatory issues and listing functions (other than individual disciplinary or delisting cases) will be the subject of Board of Executives meetings, as will be discussions of market structure and performance. The operating (non-regulatory) budget of the NYSE and other financial issues will be the subject of discussion at meetings of the Finance Committee, which is joint, because the NYSE's revenue comes from the constituents represented on the Board of Executives and they should have an appropriate forum to discuss revenues, expenses, and related financial issues (taxation and representation). However, specific proposals that are recommended by the Finance Committee must come to the Board of Directors for ultimate approval, just as recommendations of the Board of Executives about operating issues or strategic issues ultimately are advisory to the Board of Directors (though the weight of judgment and expertise on the Board of Executives will clearly be of importance). In areas where expertise is
The proposed architecture recognizes the need to engage fully and substantively with the membership through: (a) The direct election of directors, (b) the ability to propose nominations to the Board through their representatives on the Board of Executives and by direct petition, (c) the ability to require special votes by the membership (including for the recall of directors for cause), (d) their representation on the Board of Executives and on standing Committees, (e) the occasion to meet annually through their representatives with the Board of Directors to bring special concerns of the membership to the attention of the Board, and (f) the ability of members to come to the annual meeting and propose resolutions on that occasion.
The Board of Directors will maintain several advisory committees. The advisory committees will consist primarily of constituent representatives not serving on the Board of Executives. Like the Board of Executives, the advisory committees will be organized to represent a range of constituencies, helping the Board of Directors and management to hear regularly from all of the Exchange's constituencies and to maintain a broad perspective on the market and its participants.
By way of example, at present the Individual Investors Advisory Committee, the Institutional Traders Advisory Committee and the Pension Managers Advisory Committee represent various investor interests. The Listed Company Advisory Committee, which represents the views of the U.S. listed companies, has European, Latin American and Pacific Rim counterparts. In addition, a number of advisory committees represent diverse industry interests, such as the Exchange Traders Advisory Committee and the Upstairs Traders Advisory Committee. Finally, the Legal Advisory Committee draws practitioners from law firms and the legal staffs of institutional investors, member organizations and listed companies, as well as law professors.
In addition to the governance reforms that require Constitutional amendments discussed above, the Exchange will implement other reforms that do not require Constitutional amendment. Certain of these reforms were implemented by the Board in June 2003, based on the recommendation of the Special Committee on Governance of the NYSE. Other reforms were recommended by the Special Committee at the October 2003 Board meeting. The reforms listed below, which meet, and when appropriate, exceed the disclosure requirements imposed on the Exchange's listed companies, are designed to further enhance the transparency and accountability of the Board.
In addition to the various transparency initiatives that the cover letter notes, the Exchange will:
• Adhere to the SEC's proposed rule regarding director nominating committee responsibilities, including, among other things, disclosure concerning the Exchange's policy regarding consideration of individuals recommended by the public as potential nominees to the Board; the procedures enabling the public to suggest nominees; and the process for identifying and evaluating nominees and any differences in evaluation if the nominee is recommended by the public.
• Periodically update and post on the NYSE's web-site written governance principles and the Exchange's codes of business conduct and ethics.
In addition to the various detail on governance procedure and policy that the cover letter notes:
• The Finance Committee is expected to be responsible for recommending the non-regulatory budget of the Exchange to the Board for its review and approval, and fee changes to the Board of Directors, if appropriate. The Market Structure & Strategy Committee is expected to be responsible for examining issues of the Exchange's market structure and competitive position. Finally, the Quality of Markets Committee is expected to advise the Board on member and listed company rules and oversee the Market Performance Committee and the Allocation Committee.
• The Exchange will prohibit service by NYSE employees on the boards of directors of business corporations. The NYSE's Officers' and Employees' Statement of Business Conduct and Ethics already prohibits such service, but authorizes the Board to waive the provisions (subject to firewalls). Waivers are currently in effect until no later than Spring 2004 with respect to the service of the Presidents on the boards of two public companies.
During the several weeks preceding the mailing of this proxy statement, members have identified a variety of other important issues outside the scope of addressing our governance and process failures. These issues include, among others, proposals for changing the Gratuity Fund, for permitting the transfer of memberships to trusts and other juridical persons, for reducing the number of outstanding trading rights by eliminating the physical access membership or by the Exchange buying back regular memberships, and for separating the trading right from the equity ownership of the Exchange. In some cases, addressing these issues requires amending the Exchange's certificate of incorporation; others raise access issues as to which the SEC can be expected to have strong views. Some of the issues may also be controversial given the current 50/50 split between member owners affiliated with member organizations and those who are not. (The 688 of our 1366 regular members (1/2 is 683) who are not so affiliated are composed of 415 retired members, 35 widows and other relatives of deceased members, 86 estates and 152 members who themselves or their family members have never been so affiliated.)
Each of these issues requires thoughtful consideration by an unconflicted Board. Therefore, these important issues will be placed on the agenda of the new Board for its consideration in the coming months. The directors will report to you on these issues, among others, at the next annual meeting in June 2004.
Note in this connection that, under State law, the NYSE is required to have an annual meeting for the election of directors. While the fact that the entire new Board will stand for election a mere six months after taking office arguably makes elections premature, these elections will provide an early check on the new Board's progress towards implementation of our ambitious restructuring of our governance, as well as its progress in addressing these issues.
The extraordinary circumstances under which the restated and amended Constitution is being proposed and the initial Board of Directors is being constituted caused the Exchange to dispense, in whole or in part, with certain requirements under the current Constitution, including (a) use of the Nominating Committee to nominate
In light of these extraordinary circumstances, it is possible that other governance reforms may be appropriate, or that those included in the amended and restated Constitution or in this proxy statement may require modification. The Exchange will have several means of addressing such issues, if they arise, including: (a) amendment of the Constitution by the members, (b) amendment by the Board of those provisions of the Constitution that permit such amendment by the Board, subject to the requirement that the membership be notified in advance, and (c) to the extent consistent with the Constitution, adoption by the Board of appropriate rules, various charters and other ancillary documents.
The NYSE is a self-regulatory organization and national securities exchange registered with the SEC pursuant to the Act. The NYSE is required to file with the SEC copies of any proposed rule change, including these Constitutional amendments. Under the Act, unless otherwise permitted, these Constitutional amendments will not take effect until approved by the SEC. The Act provides for public notice of these Constitutional amendments, for public comment, and for specific time periods for SEC action.
The Interim Chairman of the Board recommends a vote FOR adoption of the following resolution, which will be presented at the meeting:
RESOLVED, that the recommendation by the Interim Chairman of the Board to amend and restate the Constitution in the form attached as Annex A to this Proxy Statement be and hereby is approved.
The Interim Chairman of the Board recommends a vote FOR the election of the following directors:
(1) Madeleine K. Albright
(2) Herbert M. Allison, Jr.
(3) Euan D. Baird
(4) Marshall N. Carter
(5) Shirley Ann Jackson
(6) James S. McDonald
(7) Robert B. Shapiro
(8) Sir Dennis Weatherstone
The number of directors to be elected is eight (8). The designated proxy holders of the Exchange intend, unless otherwise instructed, to vote all proxies for the election of the following eight nominees. If elected, they will hold office until the next annual meeting (June 2004), or until their successors are elected and qualified. Thereafter the Board will stand for election every year. The following provides information about each nominee as of November 4, 2003, including his or her business background.
Dr. Albright served as the 64th Secretary of State of the United States. She was the first female Secretary of State and is the highest-ranking woman in the history of the U.S. government. Her autobiography,
Mr. Allison became chairman, president and chief executive officer of Teachers Insurance and Annuity Association and College Retirement Equities Fund (TIAA-CREF) on November 1, 2002. He joined TIAA-CREF after a 28-year career at Merrill Lynch & Co., where he last served as president and chief operating officer. After leaving Merrill Lynch in mid-1999, Mr. Allison served as national finance chairman for Senator John McCain's presidential campaign. Prior to his move to TIAA-CREF, he was president and chief executive officer of the Alliance for Lifelong Learning, a nonprofit venture of Oxford, Stanford and Yale universities. Mr. Allison is currently vice chairman of the United Negro College Fund and serves on the Yale Investment Committee, and on the Advisory Council of the Yale School of Management. President George W. Bush recently appointed him to the board of the Vietnam Education Foundation, a new federal agency, which he now chairs. Mr. Allison is a former board member of the National Association of Securities Dealers and Nasdaq and past chairman of the Stanford Business School Advisory Council. He graduated from Yale College and served as an officer in the U.S. Navy before earning an M.B.A. from Stanford.
Mr. Baird, a native of Aberdeen, Scotland, is the Chairman of Rolls-Royce plc, having been appointed in February 2003. He is also the retired Chairman, President and Chief Executive Officer of Schlumberger. Mr. Baird joined Schlumberger in 1960 as a field engineer and was elected Chairman of the Board, President and Chief Executive Officer in 1986. He retired from Schlumberger in 2003. Mr. Baird currently serves as Trustee of the Carnegie Institution of Washington since 1998; as Trustee of the Tocqueville Alexis Fund (formerly the Haven Fund) since 1994; as a member of the Prime Minister's Council of Science and Technology in the UK since 2000; as a member of the Advisory Committee of Banque de France since November 2001; and on the Boards of ScottishPower, Areva, and Société Générale since 2001; and on the Board of InterContinental Exchange since 2002. He attended Aberdeen University and Trinity College, Cambridge receiving an M.A. in Geophysics from
Mr. Carter was the Chairman and Chief Executive Officer of the State Street Bank and Trust Company, and of its holding company, State Street Corporation, from 1992-2001. He joined State Street in July 1991, as President and Chief Operating Officer, became Chief Executive Officer in 1992 and Chairman in 1993. A former Marine Corps officer who was awarded the Navy Cross and Purple Heart during two years' service in Vietnam, Mr. Carter served from 1975-1976 as a White House Fellow at the State Department and Agency for International Development. Prior to joining State Street, Mr. Carter was with the Chase Manhattan Bank for 15 years. Mr. Carter is the Chairman of the Board of Trustees of the Boston Medical Center. He is also on the Board of Directors of Honeywell International, Inc. He has previously served on the boards of CEDEL, Euroclear, and National Securities Clearing Corporation, and was the Co-chairman of the U.S. Working Group of Thirty between 1988 and 1995, which developed recommendations for revamping world securities clearance and settlement processes. He was also the Chair of the Massachusetts Governor's Special Advisory Task Force on Logan Airport and Massport following the events of September 11th. Mr. Carter holds a B.S. in civil engineering from the U.S. Military Academy at West Point (1962), an M.S. in operations research and systems analysis from the U.S. Naval Postgraduate School, Monterey, California (1970), and an M.A. in Science, Technology and Public Policy from George Washington University (1976).
Dr. Jackson is the 18th President of Rensselaer Polytechnic Institute. In 2001, Dr. Jackson became the first African-American woman elected to the National Academy of Engineering. She is also a Fellow of the American Academy of Arts and Sciences and the American Physical Society, and a Life Member of the M.I.T. Corporation (Board of Trustees). She is President-Elect of the American Association for the Advancement of Sciences. Prior to becoming President of RPI in 1999, Dr. Jackson was Chairman of the U.S. Nuclear Regulatory Commission. Previously she was a Theoretical Physicist at the former AT&T Bell Laboratories and a professor at Rutgers University. Dr. Jackson serves on the Executive Committee of the Council on Competitiveness, the Council of the Government-University-Industry Research Roundtable, the U.S. Comptroller General's Advisory Committee for the Government Accounting Office, and formerly served on the Advisory Council for the Department of Energy National Nuclear Security Administration. Dr. Jackson also serves on the Boards of Trustees of Pingry School, Emma Willard School, Rockefeller University, Georgetown University, MIT, Woodrow Wilson Foundation, Brookings Institution, Universities Research Association, and Argonne National Laboratory. Dr. Jackson is a director at Federal Express Corporation, Public Service Enterprise Group Incorporated, Sealed Air Corporation, Marathon Oil Corporation, United States Steel Corporation, Medtronic, Inc., and AT&T. Dr. Jackson holds a Ph.D. in theoretical physics from M.I.T., a B.S. in physics from M.I.T. and 18 honorary doctoral degrees.
Mr. McDonald is the President and Chief Executive Officer of Rockefeller & Co., Inc. He is also a member of the Board of Directors of Rockefeller & Co., Inc. and Rockefeller Financial Services. Prior to joining Rockefeller & Co., Inc., from 1986 to 2000, Mr. McDonald was a senior officer and director of the Pell, Rudman organization. Among other positions, he served as President and Chief Executive Officer of that organization, now known as “Atlantic Trust/Pell Rudman.” Prior to joining Pell, Rudman, he was a partner with the Boston law firm of Choate, Hall & Stewart, which he joined in 1977. In addition, Mr. McDonald is a Trustee Emeritus of the Fessenden School, Newton, Massachusetts (President, 1993-1999), and a member of the Investment Committees of The United States Holocaust Memorial Museum, Washington, D.C., the Nightingale School, New York, N.Y., and the Japan Society of New York. He is a member of the Harvard University Committee on Asia Activities, and has been active in other community activities. He received a J.D. in 1977 from the University of Virginia and an A.B. from Harvard College in 1974.
Mr. Shapiro is the former Chairman and Chief Executive Officer of Monsanto Company and the former Chairman of Pharmacia Corporation. He became Monsanto's President and Chief Operating Officer in 1993; Chairman and Chief Executive Officer in April 1995; and was appointed Chairman of Pharmacia Corporation in April 2000 following the merger of Monsanto Company and Pharmacia and Upjohn, a position he relinquished in February, 2001. Previously, he was Vice President, General Counsel for General Instrument Corporation and served as an attorney with the New York law firm of Poletti, Freidlin, Prashker, Feldman & Gartner. Mr. Shapiro served as Special Assistant to the General Counsel and later to the Undersecretary of the U.S. Department of Transportation. He has served under previous appointments on the President's Advisory Committee on Trade Policy under President Clinton; White House Domestic Policy Review of Industrial Innovation under President Carter; the Civil Aeronautics Board Advisory Committee on Procedure; and the Massachusetts Governor's Task Force on Transportation. Mr. Shapiro is a member of the American Society of Corporate Executives and The Business Council. Mr. Shapiro has received many awards including: the 1999 Emerging Markets CEO of the Year Award, the John R. Miller award as the Outstanding Corporate Marketing Executive in 1984, and the Special Citation for Outstanding Achievement from Sales and Management Magazine. Mr. Shapiro is a graduate of Harvard University and Columbia University School of Law.
Sir Dennis Weatherstone is past Chairman and Chief Executive Officer of J.P. Morgan & Co., having served in those roles from 1990-1994. From 1995-2001 he served as an independent member of the Board of Banking Supervision of the Bank of England (later the Financial Services Authority). He began his career in 1946 at the Guaranty Trust Company. Sir Dennis Weatherstone is an Associate of the Institute of Chartered Secretaries and Administrators and a Fellow of the Chartered Institute of Bankers. He is a Director of Air Liquide and previously General Motors Corporation and Merck & Co., Inc. Sir Dennis Weatherstone is a Director of the Institute for International Economics, a Trustee of the Alfred P. Sloan Foundation, Chairman of the Royal College of Surgeons Foundation in New York, and an Honorary Fellow of the Associate of Corporate Treasurers (London). He was recently elected a Trustee of the International Accounting Standards Committee Foundation.
The Exchange knows of no matters to be presented at the meeting other than
First, I neglected to subject to the SEC process my expectation that the new boards would begin operating immediately. While I will immediately begin to work with the new boards, their actions will have no legal effect under the federal securities laws until the SEC approves our new Constitution.
Second, my description in the proxy statement of the interaction of the CEO with the Regulatory Oversight Committee should read: “The CEO's views on the regulatory function, its plans, programs, staffing and budget may be sought, but the Regulatory Oversight Committee's views on compensating regulatory personnel will be recommended through the Compensation Committee to the full Board for approval.”
Finally, the new Constitution includes provisions to assure the separation and independence of the regulatory function from the Exchange's marketplace function and from inappropriate influence by members and member organizations. To further clarify and underscore this separation, we need to makes some additional changes.
The new Constitution permits your new Board to amend four of its 16 articles. At its organizational meeting, I will present specific language for approval and filing with the SEC. Those further changes will:
• Codify the authority of the Audit Committee to hire its own counsel.
• Clarify that the CEO is recused from Board deliberations on the activities of the Standing Committees specified in Article IV, Section 12(a).
• Clarify that rulemaking on the subjects described in Article IV, Section 14(a) as normally confined to the Board or its committees may, if necessary, be authorized by an officer of the Exchange in between board meetings, subject to informing the Board at its next meeting, and to the approval of the Chief Regulatory Officer if on a regulatory matter.
• Clarify in Article VI, Section 1 that the President does not appoint regulatory officers, and in Section 3 that the CEO's responsibilities are subject to the specific provisions elsewhere in the Constitution regarding the separation of the regulatory functions.
I apologize for the need to supplement the proxy statement, but it is important to make clear to all the independence of our regulatory function under our proposed new architecture.
John S. Reed.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before January 12, 2004.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Reginald B. Teamer, Examiner, Office of Small Business Development Centers, Small Business Administration, 409 3rd Street SW., Suite 6400, Washington, DC 20416.
Reginald B. Teamer, Examiner, 202-205-7278 or Curtis B. Rich, Management Analyst, 202-205-7030.
Send all comments regarding whether these information collections are necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Cynthia Pitts, Program Analyst, Office of Disaster Assistance, Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Cynthia Pitts, Program Analyst, 202-205-7570 or Curtis B. Rich, Management Analyst, 202-205-7030.
Send all comments regarding whether these information collections are necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Carol Fendler, Director, Office of Licensing and Program Standards, Small Business Administration, 409 3rd Street SW., Suite 6300, Washington, DC 20416.
Carol Fendler, Director, 202-205-7559 or Curtis B. Rich, Management Analyst, 202-205-7030.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Sandra Johnston, Program Analyst, Office of Financial Assistance, Small Business Administration, 409 3rd Street SW., Suite 8300, Washington, DC 20416.
Sandra Johnston, Program Analyst, 202-205-7528 or Curtis B. Rich, Management Analyst, 202-205-7030.
Pursuant to the authority vested in me as Secretary of State, including under Section 1(c) of Public Law 102-420, and the President's Delegation of Responsibilities Related to Serbia and Montenegro dated March 22, 2001, I hereby certify that Serbia and Montenegro (1) has ceased its armed conflict with the other ethnic peoples of the region formerly comprising the Socialist Federal Republic of Yugoslavia, (2) has agreed to respect the borders of the six republics that comprised the Socialist Federal Republic of Yugoslavia under the 1974 Yugoslav Constitution; and (3) has ceased all support of Serbian forces inside Bosnia-Hercegovina.
This Certification shall be published in the
In 1992, Congress enacted Public Law 102-420 withdrawing most favored nation status (now referred to as “normal trade relations” or “NTR”) from Serbia and Montenegro. Pursuant to Public Law 102-420, the President may restore nondiscriminatory treatment to goods that are the product of Serbia or Montenegro 30 days after her certifies to Congress that the conditions set forth in the statute have been met. On March 22, 2001, the President delegated to the Secretary of State authority to make this certification. The certification was notified to Congress on November 4, 2003, and thus normal trade relations status will be restored to Serbia and Montenegro as of December 4, 2003.
Tennessee Valley Authority.
Proposed collection; comment request.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended). The Tennessee Valley Authority is soliciting public comments on this proposed collection as provided by 5 CFR 1320.8(d)(1). Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Alice D. Witt, Tennessee Valley Authority, 1101 Market Street (EB 5B), Chattanooga, Tennessee 37402-2801; (423) 751-6832. (SC: 0009BL5) Comments should be sent to the Agency Clearance Officer no later than January 12, 2004.
This information is used by distributors of TVA power to assist in identifying and financing energy improvements for their electrical energy customers.
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) received petitions in September 2003 to review certain practices in certain beneficiary developing countries to determine whether such countries are in compliance with the ATPA eligibility criteria. This notice publishes a list of the September 2003 petitions that were filed in response to the announcement of the annual review.
Bennett M. Harman, Deputy Assistant U.S. Trade Representative for Latin America, Office of the Americas, Office of the United States Trade Representative, 600 17th St., NW., Washington, DC 20508. The telephone number is (202) 395-9446, and the facsimile number is (202) 395-9675.
The ATPA (19 U.S.C. 3201
In a
Pursuant to 15 CFR 2016.1(a), this notice provides a list of the responsive petitions filed pursuant to the announcement of the annual review. Petitions not responsive to the September 2003 notice will not be considered in this review. The list of petitions sets forth the petitioner, country, and subject matter of the practice in question for each petition. The results of the preliminary review of these petitions will be published in the
Office of the United States Trade Representative.
Invitation for applications.
Chapter 19 of the North American Free Trade Agreement (“NAFTA”) provides for the establishment of a roster of individuals to serve on binational panels convened to review final determinations in antidumping or countervailing duty (“AD/CVD”) proceedings and amendments to AD/CVD statutes of a NAFTA Party. The United States annually renews its selections for the Chapter 19 roster. Applications are invited from eligible individuals wishing to be included on the roster for the period April 1, 2004 through March 31, 2005.
Applications should be received no later than December 4, 2003.
Comments should be submitted (i) electronically, to
Stanford K. McCoy, Assistant General Counsel, Office of the United States Trade Representative, (202) 395-3581.
Article 1904 of the NAFTA provides that a party involved in an AD/CVD proceeding may obtain review by a binational panel of a final AD/CVD determination of one NAFTA Party with respect to the products of another NAFTA Party. Binational panels decide whether such AD/CVD determinations are in accordance with the domestic laws of the importing NAFTA Party, and must use the standard of review that would have been applied by a domestic court of the importing NAFTA Party. A panel may uphold the AD/CVD determination, or may remand it to the national administering authority for action not inconsistent with the panel's decision. Panel decisions may be reviewed in specific circumstances by a three-member extraordinary challenge committee, selected from a separate roster composed of fifteen current or former judges.
Article 1903 of the NAFTA provides that a NAFTA Party may refer an amendment to the AD/CVD statutes of another NAFTA Party to a binational panel for a declaratory opinion as to whether the amendment is inconsistent with the General Agreement on Tariffs and Trade (“GATT”), the GATT Antidumping or Subsidies Codes, successor agreements, or the object and purpose of the NAFTA with regard to the establishment of fair and predictable conditions for the liberalization of trade. If the panel finds that the amendment is inconsistent, the two NAFTA Parties shall consult and seek to achieve a mutually satisfactory solution.
Annex 1901.2 of the NAFTA provides for the maintenance of a roster of at least 75 individuals for service on Chapter 19 binational panels, with each NAFTA Party selecting at least 25 individuals. A separate five-person panel is formed for each review of a final AD/CVD determination or statutory amendment. To form a panel, the two NAFTA Parties involved each appoint two panelists, normally by drawing upon individuals from the roster. If the Parties cannot agree upon the fifth panelist, one of the parties, decided by lot, selects the fifth panelist from the roster. The majority of individuals on each panel must consist of lawyers in good standing, and the chair of the panel must be a lawyer.
Upon each request for establishment of a panel, roster members from the two involved NAFTA Parties will be requested to complete a disclosure form, which will be used to identify possible conflicts of interest or appearances thereof. The disclosure form requests information regarding financial interests and affiliations, including information regarding the identity of clients of the
Section 402 of the NAFTA Implementation Act (Pub. L. 103-182, as amended (19 U.S.C. 3432)) (“Section 402”) provides that selections by the United States of individuals for inclusion on the Chapter 19 roster are to be based on the eligibility criteria set out in Annex 1901.2 of the NAFTA, and without regard to political affiliation. Annex 1901.2 provides that Chapter 19 roster members must be citizens of a NAFTA Party, must be of good character and of high standing and repute, and are to be chosen strictly on the basis of their objectivity, reliability, sound judgment, and general familiarity with international trade law. Aside from judges, roster members may not be affiliated with any of the three NAFTA Parties. Section 402 also provides that,to the fullest extent practicable, judges and former judges who meet the eligibility requirements should be selected.
Section 402 establishes procedures for the selection by the Office of the United States Trade Representative (“USTR”) of the individuals chosen by the United States for inclusion on the Chapter 19 roster. The roster is renewed annually, and applies during the one-year period beginning April 1 of each calendar year.
Under Section 402, an interagency committee chaired by USTR prepares a preliminary list of candidates eligible for inclusion on the Chapter 19 Roster. After consultation with the Senate Committee on Finance and the House Committee on Ways and Means, USTR selects the final list of individuals chosen by the United States for inclusion on the Chapter 19 roster.
Roster members selected for service on a Chapter 19 binational panel will be remunerated at the rate of 800 Canadian dollars per day.
Eligible individuals who wish to be included on the Chapter 19 roster for the period April 1, 2004 through March 31, 2005 are invited to submit applications. Persons submitting applications may either send one copy by fax to Sandy McKinzy at 202-395-3640, or transmit a copy electronically to
Applications must be typewritten, and should be headed “Application for Inclusion on NAFTA Chapter 19 Roster.” Applications should include the following information, and each section of the application should be numbered as indicated:
1. Name of the applicant.
2. Business address, telephone number, fax number, and email address.
3. Citizenship(s).
4. Current employment, including title, description of responsibility, and name and address of employer.
5. Relevant education and professional training.
6. Spanish language fluency, written and spoken.
7. Post-education employment history, including the dates and addresses of each prior position and a summary of responsibilities.
8. Relevant professional affiliations and certifications, including, if any, current bar memberships in good standing.
9. A list and copies of publications, testimony, and speeches, if any, concerning AD/CVD law. Judges or former judges should list relevant judicial decisions. Only one copy of publications, testimony, speeches, and decisions need be submitted.
10. Summary of any current and past employment by, or consulting or other work for, the United States, Canadian, or Mexican Governments.
11. The names and nationalities of all foreign principals for whom the applicant is currently or has previously been registered pursuant to the Foreign Agents Registration Act, 22 U.S.C. 611
12. List of proceedings brought under U.S., Canadian, or Mexican AD/CVD law regarding imports of U.S., Canadian, or Mexican products in which the applicant advised or represented (for example, as consultant or attorney) any U.S., Canadian, or Mexican party to such proceeding and, for each such proceeding listed, the name and country of incorporation of such party.
13. A short statement of qualifications and availability for service on Chapter 19 panels, including information relevant to the applicant's familiarity with international trade law and willingness and ability to make time commitments necessary for service on panels.
14. On a separate page, the names, addresses, telephone, and fax number of three individuals willing to provide information concerning the applicant's qualifications for service, including the applicant's character, reputation, reliability, judgment, and familiarity with international trade law.
Current members of the Chapter 19 roster who remain interested in inclusion on the Chapter 19 roster must submit updated applications. Individuals who have previously applied but have not been selected may reapply. If an applicant, including a current or former roster member, has previously submitted materials referred to in item 9, such materials need not be resubmitted.
Applications normally will be subject to public disclosure. An applicant who wishes to exempt information from public disclosure should follow the procedures set forth in 15 CFR 2003.6.
Pursuant to section 402(c)(5) of the NAFTA Implementation Act, false statements by applicants regarding their personal or professional qualifications, or financial or other relevant interests that bear on the applicants' suitability for placement on the Chapter 19 roster or for appointment to binational panels, are subject to criminal sanctions under 18 U.S.C. 1001.
This notice contains a collection of information provision subject to the Paperwork Reduction Act (“PRA”) that has been approved by the Office of Management and Budget (“OMB”). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB number. This notice's collection of information burden is only for those persons who wish voluntarily to apply for nomination to the NAFTA Chapter 19 roster. It is expected that the collection of information burden will be under 3 hours. This collection of information contains no annual reporting or recordkeeping burden. This collection
The following statements are made in accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a). The authority for request information to be furnished is section 402 of the NAFTA Implementation Act. Provision of the information requested above is voluntary; however, failure to provide the information will preclude your consideration as a candidate for the NAFTA Chapter 19 roster. This information is maintained in a system of records entitled “Dispute Settlement Panelists Roster.” Notice regarding this system of records was published in the
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed highway project in Latah County, Idaho.
Russell L. Jorgenson, Field Operations Engineer, Federal Highway Administration, 3050 Lakeharbor Lane, Suite 126, Boise, Idaho 83703, telephone: (208) 334-9180; or Zachary Funkhouser, Senior Environmental Planner, Idaho Transportation Department, P.O. Box 837, Lewiston, ID 83501, telephone (208) 799-5090.
The Federal Highway Administration, in cooperation with the Idaho Transportation Department, will prepare an EIS on a proposal to improve U.S. Highway 95 south of Moscow, Idaho. The proposed highway alternatives vary in length from 6.1 to 7.4 miles in length and will provide four travel lanes. The termini for the project are from the intersection at Thorn Creek Road on the southern end to the South Fork Palouse River Bridge on the north end.
This improvement is considered necessary to relieve current and projected traffic congestion on U.S. Highway 95 and to address high accident locations. Alternatives under consideration include (1) taking no action, (2) updating and improving the existing alignment, (3) alternatives east of existing U.S. 95, and (4) alternatives west of existing U.S. 95.
Letters describing the proposed action and soliciting comments will be sent to the appropriate Federal, State and local agencies and citizens who have previously expressed interest in this proposed project. Scoping will begin with the publication of the Notice of Intent. As part of the scoping process, public information meetings will be held in addition to public hearings. Public notice will be given of the time and place of any public information meetings and the public hearings. The draft EIS will be made available in electronic format for public and agency review and comment.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties.
Comments or questions concerning this proposed action and the EIS should be directed to the FHWA or ITD at the addresses provided above.
23 U.S.C. 315; 23 CFR 771.123; 49 CFR 1.48.
Research and Special Programs Administration (RSPA), DOT.
Public notice and invitation to comment.
Interested parties are invited to submit comments on an application by Societé Air France for an administrative determination whether Federal hazardous material transportation law preempts requirements of the City of Houston, Texas, relating to the interim storage of hazardous materials during transportation.
Comments received on or before December 29, 2003, and rebuttal comments received on or before February 11, 2004, will be considered before an administrative determination is issued by RSPA's Associate Administrator for Hazardous Materials Safety. Rebuttal comments may discuss only those issues raised by comments received during the initial comment period and may not discuss new issues.
The application and all comments received may be reviewed in the Dockets Office, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. The application and all comments are also available on-line through the home page of DOT's Docket Management System, at
Comments must refer to Docket No. RSPA-03-16456 and may be submitted to the docket either in writing or electronically. Send three copies of each written comment to the Dockets Office at the above address. If you wish to receive confirmation of receipt of your written comments, include a self-addressed, stamped postcard. To submit comments electronically, log onto the Docket Management System website at
A copy of each comment must also be sent to (1) Michael F. Goldman, Esq., Silverberg, Goldman & Bikoff, L.L.P., 1103 30th Street, NW., Suite 120, Washington, DC 20007, counsel for Societé Air France, and (2) Randy Rivin, Esq., Legal Department, City of Houston, P.O. Box 1562, Houston, TX 77251-1652. A certification that a copy has been sent to these persons must also be included with the comment. (The following format is suggested: “I certify that copies of this comment have been sent to Messrs. Goldman and Rivin at the addresses specified in the
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
A list and subject matter index of hazardous materials preemption cases, including all inconsistency rulings and preemption determinations issued, are available through the home page of RSPA's Office of the Chief Counsel, at
Frazer C. Hilder, Office of the Chief Counsel, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001; telephone No. 202-366-4400.
Societé Air France (Air France) has applied for a determination that Federal hazardous material transportation law, 49 U.S.C. 5101
1. Sections 105.8.h.1 and 8001.3.1, which require a permit to store, transport on site, dispense, use or handle hazardous materials in excess of certain “exempt” amounts listed in Table 105-C of the Fire Code.
2. Sections 105.8.f.3 and 7901.3.1, which require a permit to store, handle, transport, dispense, or use flammable or combustible liquids in excess of the amounts specified in § 105.8.f.3.
3. Sections 8001.3.2 and 8001.3.3, which specify that the HFD chief may require an applicant for a permit to provide a hazardous materials management plan (HMMP) and a hazardous materials inventory statement (HMIS), respectively, in accordance with the provisions of Appendix II-E of the Fire Code.
1. Sections 8003.1.3.3 and 7901.9, which require secondary containment in buildings, rooms or areas used for storage of hazardous materials and flammable or combustible materials, respectively, in excess of specified quantities.
2. Sections 8001.10.6, 8001.11.8, 7902.1.6, and 7902.5.9, which contain provisions on the use of storage cabinets to increase exempt amounts of hazardous materials or to separate incompatible materials.
According to Air France, it transports cargo on both passenger-carrying and all-cargo aircraft between IAH and Paris, France and, since 1979, it has received an annual permit from the HFD to handle and store hazardous materials at its IAH cargo facility. It states that the hazardous materials stored at IAH “are in transit * * * under active shipping papers (air waybills) and are only present there incidental to prior or subsequent air transportation,” and where “palletization and other procedures related to their carriage by air” take place. It stresses that “hazardous materials typically spend only a very short period of time at the Air France cargo facility,” and that “Air France is unable to predict what hazardous materials it may have in its facility at any given time since this is a function of the hazardous materials that its customers choose to ship.”
Air France states that, beginning in June 2002, the HFD has required it to submit a Hazardous Materials Management Plan (HMMP) and a Hazardous Materials Inventory Statement (HMIS) in order to obtain a permit, both of which require extensive information. It relates that the HFD refused to accept the HMMP and HMIS submitted by Air France until June 2003, and, during the interval, the HFD cited the local Air France cargo manager for several violations of the Fire Code including the alleged failure to provide a proper HMIS for the storage of hazardous materials and the alleged failure to post the required local permit for the storage, handling or use of flammable liquids.
Air France also states that it moved into a new cargo warehouse facility at IAH in July 2003, where, as a condition of issuing a certificate of occupancy, the HFD has required the installation of “a hazardous materials storage cabinet * * * for the storage by Air France of certain in transit hazardous materials.” Air France indicates it operates cargo warehouses at six other locations in the United States, and none of these jurisdictions requires it to obtain a local permit or install and use storage cabinets when it handles and stores hazardous materials in the course of transportation.
As Air France notes in its application, in a prior proceeding, RSPA considered permit requirements in Section 105 and Articles 79 and 80 of the Fire Code relating to the transportation of flammable liquids and other hazardous materials. Preemption Determination (PD) No. 14(R), Houston, Texas Fire Code Requirements on the Storage, Transportation, and Handling of Hazardous Materials, 63 FR 57606 (Dec. 7, 1998), decision on petition for reconsideration, 64 FR 33949 (June 24, 1999). The version of the Fire Code then in effect stated that it was primarily directed at “the hazards of fire and explosion arising from the storage, handling, and use of hazardous substances, materials and devices, and from conditions hazardous to life and property in the
In PD-14(R), RSPA discussed the general principle that
In PD-14(R), the City asked RSPA to postpone any decision pending issuance of a final rule in Docket No. RSPA-98-4952 (HM-223), “Applicability of the Hazardous Materials regulations to Loading, Unloading, and Storage.”
In the recently-issued final rule in HM-223, RSPA has reaffirmed that “storage incidental to movement of a hazardous material” is a “transportation function,” and the HMR apply to the “[s]torage if a * * * package containing a hazardous material by any person between the time that a carrier takes possession of the hazardous material for the purpose of transporting it until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium * * *” 49 CFR 171.1(c)(4), as added in 68 FR 61906, 61938 (Oct. 30, 2003); “
As stated in the preamble to the final rule,
Unless the Secretary waives preemption, the preemption provisions of Federal hazmat law effectively preclude State, local, and tribal governments from regulating transportation functions, as defined in this final rule, in a manner that differs from the Federal requirements if the non-Federal requirement is not authorized by another Federal law and the non-Federal requirement fails the dual compliance, obstacle, or covered subject test. Examples of such transportation functions include:* * * (4) storage of a hazardous material between the time that a carrier takes possession of the material until it is delivered to its destination as indicated on shipping documentation.
In PD-14(R), RSPA addressed the provisions in the prior edition of the Fire Code that excepted the “[t]ransportation of flammable and combustible liquids when in accordance with DOT regulations on file with and approved by DOT” (In Sec. 7901.1.1), and for “[o]ff site hazardous materials transportation in accordance with DOT requirements” (in Sec. 8001.1.1). 63 FR at 67507, 67510, 64 FR at 33950, 33951. The current edition of the Fire Code has retained the exception in Sec. 7901.1.1 with respect to flammable and combustible liquids, but eliminated the previous exception in Sec. 8001.1.1. Accordingly, to the extent that flammable and combustible liquids are stored in the course of transportation, they cannot be considered subject to any requirements in Article 79 of the Fire Code. 63 FR at 67510, 64 FR at 33951. The Fire Code also contains “exceptions” in Secs. 105.8.f.3, 105.8.h.1, and 7901.3.1 that “A permit is not required for any activity when the requirement of local permits is preempted by federal or state law.”
The text of Air France's application is set forth in Appendix A, and the complete application including the exhibits is available in the Dockets Office, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, and on-line through the home page of DOT's Docket Management System, at
In summary, Air France argues that both (1) the requirements to submit an HMMP and HMIS in order to obtain a permit to store hazardous materials at IAH for a short period in the course of transportation and (2) the requirement to store these materials in storage cabinets during the time they are at IAH create obstacles to accomplishing and carrying out the HMR because of the potential for unnecessary delay or diversion in their transportation for the reasons set forth in prior inconsistency rulings, preemption determinations, and court decisions. Air France also argues that the requirement for storage cabinets does not advance the safe transportation of hazardous materials because (1) it is not applied in the same manner to non-transportation facilities at which the same materials are stored, (2) it increases the number of times hazardous materials are handled, increasing the risk of an accident or incident, and (3) it conflicts with the HMR's requirements for separation and segregation of hazardous materials.
Section 5125 or 49 U.S.C. contains express preemption provisions that are relevant to this proceeding. 66 FR at 41933-34. As amended by Section 1711 of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2319), 49 U.S.C. 5125(a) provides that—in the absence of a waiver of preemption by DOT under § 5125(e) or specific
(1) Complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security is not possible; or
(2) The requirement of the State, political subdivision, or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security.
These two paragraphs set forth the “dual compliance” and “obstacle” criteria that RSPA had applied in issuing inconsistency rulings prior to 1990, under the original preemption provision in the Hazardous Materials Transportation Act (HMTA). Pub. L. 93-633 112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle criteria are based on U.S. Supreme Court decisions on preemption.
Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal requirement concerning any of the following subjects is preempted—unless authorized by another Federal law or DOT grants a waiver of preemption—when the non-Federal requirement is not “substantively the same as” a provision of Federal hazardous material transportation law, a regulation prescribed under that law, or a hazardous materials security regulation or directive issued by the Secretary of Homeland Security:
(A) The designation, description, and classification of hazardous material.
(B) The packing, repacking, handling, labeling, marking, and placarding of hazardous material.
(C) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents.
(D) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material.
(E) The design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or a container represented, marked, certified, or sold as qualified for use in transporting hazardous material.
To be “substantively the same,” the non-Federal requirement must conform “in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted.” 49 CFR 107.202(d).
Last year's amendments to the preemption provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view that a single body of uniform Federal regulations promotes safety (including security) in the transportation of hazardous materials. Almost 30 years ago, when it was considering the HMTA, the Senate Commerce Committee “endorse[d] the principle of preemption in order to preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation.” S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). When it expanded the preemption provisions in 1990, Congress specifically found that:
(3) Many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements,
(4) Because of the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable,
(5) In order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce are necessary and desirable.
Under 49 U.S.C. 5125(d)(1), any person (including a State, political subdivision of a State, or Indian tribe) directly affected by a requirement of a State, political subdivision or tribe may apply to the Secretary of Transportation for a determination whether the requirement is preempted. The Secretary of Transportation has delegated authority to RSPA to make determinations of preemption, except for those that concern highway routing (which have been delegated to the Federal Motor Carrier Safety Administration). 49 CFR 1.53(b).
Section 5125(d)(1) requires that notice of an application for a preemption determination must be published in the
Preemption determinations do not address issues of preemption arising under the Commerce Clause, the Fifth Amendment or other provisions of the Constitution or under statutes other than the Federal hazardous material transportation law unless it is necessary to do so in order to determine whether a requirement is authorized by another Federal law, or whether a fee is “fair” within the meaning of 49 U.S.C. 5125(g)(1). A State, local or Indian tribe requirement is not authorized by another Federal law merely because it is not preempted by another Federal statute.
In making preemption determinations under 49 U.S.C. 5125(d), RSPA is guided by the principles and policies set forth in Executive Order No. 13132, entitled “Federalism.” 64 FR 43255 (August 10, 1999). Section 4(a) of that Executive Order authorizes preemption of State laws only when a statute contains an express preemption provision, there is other clear evidence that Congress intended to preempt State law, or the exercise of State authority directly conflicts with the exercise of Federal authority. Section 5125 contains express preemption provisions, which RSPA has implemented through its regulations.
All comments should be limited to whether 49 U.S.C. 5125 preempts the Houston requirements in the Fire Code and imposed by HFD for permits, secondary containment, and segregation, as applied to hazardous materials handled and stored by an air carrier at an airport during transportation. Comments should specifically address the preemption criteria detailed in Part II, above, and set forth in detail the manner in which these requirements are applied and enforced.
Pursuant to 49 CFR 107.203 and 49 U.S.C. 5125, Societé Air France (“Air France”) hereby applies for a determination that certain permit requirements contained in the Fire Code of the City of Houston, as well as certain secondary containment and segregation requirements imposed by the Houston Fire Department, are preempted under Federal hazardous materials transportation law as these requirements are being applied to the handling or storage by Air France of hazardous materials incidental to their movement by air at the Air France cargo facility at George Bush Intercontinental Airport (“IAH”), Houston, Texas.
Air France seeks a Department determination that the following local Houston Fire Code and Fire Department requirements are preempted:
1.
2.
3.
4.
5.
6.
These local Houston requirements are inconsistent with Federal hazardous materials law and specific provisions of the Hazardous Materials Regulations (“HMR”), 49 CFR part 171-180, enforced by the Department and adhered to by Air France in its United States operations, including those conducted at IAH in Houston, Texas.
Air France is a foreign air carrier licensed and regulated by the United States Department of Transportation (“DOT” or “Department”) and is authorized to transport air cargo between points in the United States and points in France. Air France has been providing cargo air transportation, including the transportation of hazardous materials, at IAH since 1969. Currently, Air France operates a daily passenger/cargo combination flight and an all-cargo flight three times per week between IAH and Paris, France.
Air France has applied for and received a permit from the Houston Fire Department to handle or store hazardous materials on an annual basis since 1979 in connection with its IAH cargo warehouse. On June 11, 2002, Air France received the paperwork from the Houston Fire Department to renew its permit to handle or store hazardous materials. On this occasion, Air France was required
The City of Houston has adopted the 1997 edition of the Uniform Fire code, with certain amendments (“Fire Code”).
Appendix II-E, § 2.1 of the Fire code requires that the HMIS list by hazard class all hazardous materials stored in a building and include the following information for each hazardous material listed: (1) Hazard class; (2) common or trade name; (3) chemical name, major constituents and concentrations if a mixture. If a waste, the waste category; (4) Chemical Abstract Service number found in 29 CFR; (5) whether the material is pure or a mixture and whether the material is a solid, liquid or gas; (6) maximum aggregate quantity stored at any one time; and (7) storage conditions related to the storage type, temperature and pressure. An amended HMIS is required to be provided within 30 days of the storage of any hazardous materials which changes or adds a hazard class or which is sufficient in quantity to cause an increase in the quantity that exceeds 5 percent for any hazard class.
Appendix II-E, § 3.2 of the Fire Code requires that the HMMP include the following information: (1) General business information; (2) a general site plan; (3) a building floor plan; (4) information on hazardous materials handling; (5) information on chemical compatibility and separation; (6) a monitoring program; (7) inspection and record keeping; (8) employee training; and (9) emergency response procedures.
On July 3, 2002, Air France first applied to the Houston Fire Department for renewal of its permit to handle or store hazardous materials at its IAH cargo facility. Air France, however, was unable to obtain such a permit due, in part, to its inability to provide the Houston Fire Department with the detailed information it sought as part of the HMIS requirement. Given the nature of its operations, the hazardous materials that are present at the Air France cargo facility changes on a day-to-day basis (or even on an hour-to-hour basis) at these materials are in transit and are only present for palletization and other procedures related to their carriage by air. All hazardous material shipments present in the Air France facility are under active shipping papers (air waybills) and are only present there incidental to prior or subsequent air transportation. As a result, hazardous materials typically spend only a very short period of time at the Air France cargo facility. In addition, Air France is unable to predict what hazardous materials it may have in its facility at any given time since this is a function of the hazardous materials that its customers choose to ship.
Nevertheless, Air France has attempted to comply with the Houston Fire Department's requirements. At the request of the Houston Fire Department, Air France revised its HMIS and HMMP on several occasions subsequent to its July 3, 2002 submission (the Fire Department's rejection of Air France's submitted HMMP and HMIS is evidenced by the Notice of Violation, dated October 23, 2002, attached hereto as Exhibit 2). As none of these submissions were satisfactory to the Fire Department, Air France ultimately found it necessary to retain Loss Control Associates, Inc., a fire protection engineering firm, to assist it in completing these forms. At the suggestion of the Houston Fire Department, Loss Control Associates conducted a survey of NOTOCs (Notifications to Captains) and manifests for shipments transiting the Air France IAH cargo facility during a prior sixth-month period in order to estimate the maximum aggregate quantities of hazardous materials stored at any one time as required to be provided in the HMIS. In addition, as the common names and trade names of hazardous materials are not contained on
In addition to the permit to handle or store hazardous materials, the Houston Fire Department also required Air France to apply for and obtain a permit to handle or store flammable and combustible liquids, including requiring Air France to submit an additional HMMP and HMIS The HMMPS and HMISs prepared for Air France by Loss Control Associates and finally accepted by the Fire Department are attached hereto as Exhibit 3. Air France spent over $7,000.00 in its effort to comply with the HMMP and HMIS requirements imposed by the Houston Fire Department to obtain these local permits. The Fire Department issued the annual permit to handle or store hazardous materials on June 17, 2003 and issued the annual permit to handle or store flammable and combustible liquids on June 27, 2003 but refused to deliver the permits to Air France until after a hazardous materials storage cabinet was installed at the carrier's new cargo facility (discussed below). Air France finally received both of the permits from the Houston Fire Department on August 6, 2003 (copies of the permits issued by the Fire Department are attached hereto as Exhibit 4). Since the permits are for a one-year period and expire on June 17 or 27, 2004, Air France will have to re-apply and undergo this same burdensome and costly application procedure next year and every year thereafter.
On February 10, 2003, while Air France was attempting to comply with the Houston Fire Department's permit requirements, representatives of the Fire Department visited the Air France cargo facility and cited Eric Roberts, the local Air France cargo manager, for several alleged violations of the Fire Code, including failure to post the required local permit for flammable liquids storage, handling or use, and failure to provide a proper HMIS for storage of hazardous materials. Mr. Roberts was also cited by the Fire Department for allegedly failing to provide proper H-occupancy for storage of flammable liquids above exempt amounts, as well as for failing to post a valid certificate of occupancy (the citations are attached hereto as Exhibit 5). There is a Houston municipal court trial related to these citations scheduled for November 13, 2003.
On July 8, 2003, Air France moved into a new cargo warehouse facility at IAH. The Lynxs Group developed the new facility for the Houston Airport System (“HAS”), the Houston municipal department responsible for managing the airport. Air France subleases the new facility from the Lynxs Group. As a condition of issuing a certificate of occupancy for the new building, the Houston Fire Department required that a hazardous materials storage cabinet be installed and used at the facility for the storage by Air France of certain in transit hazardous materials. Consequently, the Lynxs Group agreed with the Fire Department to require Air France contractually to use a storage cabinet so that a certificate of occupancy could be obtained for the new facility. The Lynxs Group agreed to purchase the cabinet and finance its acquisition by assessing Air France additional rent for a 60-month period. The cost of the storage cabinet, including installation, was approximately $50,000. The specific storage cabinet requirements imposed on Air France by the Fire Department are described in the Letter Agreement between the Lynxs Group and Air France, dated April 15, 2003 (attached hereto as Exhibit 6). The certificate of occupancy was issued on June 27, 2003 with a notation that “HAZARDOUS MATERIAL ABOVE THE EXEMPT AMOUNTS SHALL BE STORED IN LOCKERS PER FIRE MARSHALL” (the certificate of occupancy is attached hereto as Exhibit 7).
While the Houston Fire Department has not identified for Air France the specific Fire Code provisions under which it has required the installation and use of the hazardous materials storage cabinet, various provisions of the Fire Code concern the use of such cabinets. For example, § 8001.10.6 of the Fire Code provides that storage cabinets may be used to increase exempt amounts or to comply with Article 80.
No other U.S. jurisdiction requires Air France to obtain a local permit to store hazardous materials at its cargo warehouses located in the U.S. Of the eleven U.S. cities Air France serves, it operates cargo warehouse facilities at six: Boston, Chicago, Houston, Los Angeles, Miami and Washington. In addition, no other U.S. jurisdiction requires Air France to install and use hazardous materials storage cabinets at any of its U.S. cargo facilities.
Air France therefore requests a determination that § 105.8.h.1, § 8001.3.1, § 8001.3.2, § 8001.3.3 and Appendix II-E of the Fire Code are preempted to the extent that these provisions require Air France to submit a HMMP or a HMIS in order to obtain a local permit to handle or store hazardous materials at its IAH cargo facility.
The Hazardous Materials Transportation Act (“HMTA”), former 49 App. U.S.C. 1801
When Congress substantively amended the HMTA in 1990, it specifically found that:
(3) Many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration,
(4) Because of the potential risk to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable,
(5) In order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and
In amending the HMTA, Congress affirmed that “uniformity was the linchpin” of the statute.
(1) Complying with such a requirement and a requirement of this chapter [49 U.S.C. 5101
(2) Such a requirement, as applied or enforced, is an obstacle to accompanying and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulations or directive issued by the Secretary of Homeland Security (the “obstacle test”).
Congress also gave DOT the authority to preempt a law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe concerning five covered subjects, including: (A) the designation, description, and classification of hazardous material and (B) the packaging, repackaging, handling, labeling, marking, and placarding of hazardous material, that are not substantively the same as a provision of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security (the “covered subjects test”).
The Research and Special Programs Administration (“RSPA”) has enacted regulations under which “any person . . . directly affected by any requirement of a State, political subdivision, or Indian tribe may apply for a determination as to whether that requirements is preempted under 49 U.S.C. 5125”
The HMR have been promulgated in accordance with the HMTA's direction that the Secretary of Transportation “prescribe regulations for the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce”
“Storage of a transport vehicle, freight container, or package containing a hazardous material between the time that a carrier takes physical possession of the hazardous material for the purpose transporting it until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium. * * *” 66 Fed. Reg. at 32448.
In Inconsistency Ruling No. IR-28 (San Jose), 55 FR 8884 (March 8, 1990), RSPA held that a local ordinance requiring the submission of a HMMP and a HMIS in order to obtain a permit to store hazardous materials incidental to transportation is an obstacle to the execution of the HMTA and the HMR and thus preempted. Since the Houston Fire Department is imposing virtually identical HMMP and HMIS requirements upon Air France in order for the carrier to obtain a permit to handle or store in transit hazardous materials at its cargo facility at IAH, these requirements should similarly be preempted in accordance with IR-28 (San Jose).
The Hazardous Materials Storage Ordinance at issue in IR-28, which was contained in the San Jose Municipal Code, required Yellow Freight System, Inc., (“Yellow Freight”) to obtain a Hazardous Materials Storage Permit (“HMSP”) and submit a HMMP to operate its expanded trucking terminal.
While RSPA's Director of the Office of Hazardous Materials Transportation noted that “State and local permits for hazardous materials transportation are not
The Director concluded that “the City's discretionary and burdensome permit/approval requirements for the storage of hazardous materials incidental to their transportation (
With respect to San Jose's HMMP and HMIS requirement, the Director noted that “[i]nformation and documentation requirements as prerequisites to hazardous materials transportation have been considered on many prior occasions. Where such requirements exceed Federal requirements, they have been found to create potential delay or diversion of hazardous materials transportation, to constitute an obstacle to the execution of the HMTA and the HMR, and thus to be inconsistent.”
The Director also found that San Jose's information and documentation requirements, insofar as they relate to hazardous materials to be stored at a facility incidental to transportation, constitute an inconsistent advance notice requirement since they have the potential to delay and redirect traffic.
As the Director correctly explained:
The Director also found that “the City's information requirements are inconsistent with the HMR insofar as they require emergency response information as a prerequisite to the loading, unloading, and storage of hazardous materials incidental to their transportation.”
With the promulgation of these regulations [49 CFR Part 172, subpart G], RSPA's emergency response information requirements for hazardous materials transportation, including the loading, unloading, or storage incidental to such transportation exclusively occupy that field. Therefore, state and local requirements not identical to these HMR provisions will cause confusion concerning the nature of such requirements, undermine compliance with the HMR requirements, constitute obstacles to implementation of those provisions, and thus be inconsistent and preempted.
The rationale used by the Department to preempt the HMMP and HMIS permit requirements in IR-28 (San Jose) applies with equal force with respect to the present Houston requirements. In IR-28 (San Jose), the Department found that where extensive information and documentation is required in order to obtain a permit (such as with a HMMP and a HMIS), such requirements might constitute an unauthorized prior restraint on the shipment of hazardous materials. With respect to the HMIS, the Department held that detailed information concerning the identity and quantity of hazardous materials that a carrier might store at its facility incidental to transportation is impossible to compile and provide in advance since such information depends on what the carrier's customers choose to ship. The Department also found that extensive information and documentation requirements, insofar as they relate to hazardous materials to be stored at a facility incidental to transportation, might constitute an inconsistent advanced notice requirement since they have the potential to delay and redirect traffic. Finally, DOT found that the HMR exclusively occupy the field of emergency response information requirements for the transportation of hazardous materials. In this Application, Air France respectfully request that RSPA follow its decision in IR-28 (San Jose) by holding that the virtually identical HMMP and HMIS permit requirements contained in the Houston Fire Code are similarly incidental to their movement by air at the Air France cargo facility at IAH.
A similar Department Inconsistency Ruling was upheld by the Ninth Circuit Court of Appeals in
In reversing the district court's decision for failing to accord sufficient deference to the underlying Inconsistency Ruling issued by DOT (IR-19 (Appeal), 53 FR 11600 (April 7, 1988)), the Ninth Circuit stated that:
The DOT found that its regulations and the Nevada regulations address many of the same matters. For instance, it found that several of its own regulations already addressed storage incident to the transportation of hazardous materials, the primary focus of the Nevada regulations * * * Because the Nevada regulations address matters already covered by the federal regulations, impose substantial burdens on applicants, and create the risk of confusion, conflicts, and delays, the DOT determined that they were inconsistent with the federal regulations.
The court went on to cite numerous HMR provisions that address loading, unloading, and storage (including temporary storage) of hazardous materials during carriage by rail, concluding that “[a]t least one Federal court has recently held that ‘the extent of Federal regulation in the area of transportation, loading, unloading and storage of hazardous materials is comprehensive.’ ”
The same can be said of the HMMP and the HMIS requirements contained in the Houston Fire Code. For example, despite the fact that 49 CFR 172.600(c)(2) requires emergency response information to be immediately available to any Federal, State or local government agency representative that responds to an incident involving a hazardous material (including providing the basic description and technical name of the hazardous material as required by §§ 172.202 and 172.203(k), the ICAO Technical Instruction, the IMDG Code or the TDR Regulations as required by § 172.602(a)(1)), Air France is also required by the Fire Code to submit a HMIS on which it must list all hazardous materials that it might store in its cargo facility, including the common names or trade names of the hazardous materials and the maximum aggregate quantity stored at any one time.
Moreover, the confusion that the court in
Interestingly, the Houston Fire Code permit requirements have been the subject of a prior DOT preemption proceeding. In Preemption Determination No. PD-14(R), 64 FR 33949 (June 24, 1999), RSPA affirmed its earlier Preemption Determination (No. PD-14(R), 63
In reaching this conclusion, RSPA noted that:
In its initial Preemption Determination, RSPA noted that the City had stopped requiring permits of vehicles meeting DOT requirements.
While AWHMT did not challenge the City's requirements that apply to a facility that stores hazardous materials, as opposed to vehicles that move those materials, RSPA nevertheless undertook a discussion of the issue stating that:
RSPA has long encouraged States and localities to adopt and enforce requirements on the transportation of hazardous materials that are consistent with the HMR.
Citing IR-28 (San Jose), RSPA reiterated its position that:
RSPA concluded that “[t]o to the extent that the exceptions in Secs. 7901.1.1 and 8001.1.1 mean that provisions of the Uniform Fire Code do not apply to transportation of hazardous materials in commerce, including incidental storage, that result derives from the plain language of the Uniform Fire Code and not from any inconsistency with the HMR.
Although RSPA held in Preemption Determination No. 14(R) that the permit requirements contained in § 105.8.h.1, § 8001.3.1, § 105.8.f.3 and § 7901.3.1 of the Fire Code were not preempted by Federal hazardous materials law (to the extent that these sections require a permit for a vehicle to transport hazardous materials in commerce within the City), RSPA's holding rested on the exceptions contained in the Fire Code that permits are not required for transportation of hazardous materials in accordance with DOT requirements and the fact that the city had stopped requiring permits for the activities in question.
In addition, in PD-14(R), RSPA specifically noted that the enforceability of non-Federal requirements on incidental storage depends on the consistency of those requirements with the HMR and the applicability of the requirements themselves in terms of exceptions contained in the Houston Fire Code. The Fire Department, however, assuredly is not enforcing its permit requirements in accordance with the express terms of the Houston Fire Code (
The hazardous materials storage cabinet requirement imposed by the Houston Fire Department on Air France pursuant to Exhibit 6 should also be preempted by the HMTA and the HMR.
In IR-28 (San Jose), RSPA noted that “state or local prohibition of transportation-related storage at places where, and at times when, the HMR allow such storage is inconsistent with the HMTA and the HMR.”
In addressing the secondary containment and segregation requirements for hazardous materials imposed by San Jose, the Director noted that § 177.848(f) (now § 177.848(d)) provided that “[h]azardous materials must not be loaded, transported, or stored together, except as provided in’ a detailed Segregation and Separation Chart of Hazardous Materials, which is a part of that Section.”
State or local imposition of containment or segregation requirements for the storage of hazardous materials incidental to the transportation thereof different from, or additional to those in, § 177.848(f) of the HMR [which applies to carriage by public highway] create confusion concerning such requirements and [increase] the likelihood of noncompliance with § 177.848(f). Since such state or local requirements, therefore, are obstacles to the execution of an HMR provision, they are inconsistent with the HMR—insofar as they apply to transportation-related storage.
The Houston Fire Department's requirement that Air France use a hazardous materials storage cabinet for the temporary storage of certain in transit hazardous materials also has the potential to create confusion and increase the likelihood of noncompliance with the hazardous materials segregation and separation rules established for air carrier cargo facilities contained in
Let us be clear that the local Houston requirement is clearly restricting storage that is incidental to transportation subject to the HMR. All hazardous material shipments at the Air France IAH facility are under active shipping papers (through air waybills); they are in transit prior to continuing transportation by truck or by aircraft to the ultimate consignee.
The local Houston requirement to store certain in transit hazardous materials in a storage cabinet also has the potential to create delays and diversions in the transportation of such materials. Obviously, the storage cabinet required by the Fire Department is only able to hold a limited amount of hazardous materials,
In addition, if the Fire Department's storage cabinet requirement is allowed to remain in place, Air France will be required to load and unload certain hazardous materials into and out of the cabinet increasing the number of times that the hazardous materials are handled. As one court has recognized, “the more frequently hazardous material is handled during transportation, the greater the risk of mishap. Accordingly, these provisions [the HMTA] require that the material reach its destination as quickly as possible, with the least amount of handling and temporary storage.”
Given the obvious potential for delays and diversions in the transportation of hazardous materials associated with the Houston Fire Department's storage cabinet requirement, the current situation can easily be distinguished from PD-12(R), 62 Fed. Reg. 15970 (April 3, 1997), in which RSPA reversed its earlier decision in the same proceeding concluding that certain secondary containment requirements of the New York State Department of Environmental Conservation were not preempted due to a lack of information from which to determine that the requirements actually cause delays or diversions in the transportation of hazardous materials.
Nor is there a rational and compelling local governmental interest for requiring Air France to use storage cabinets to store certain in transit hazardous materials in its warehouse while not imposing the same requirement on comparably constructed retail establishments like a Home Depot or a Wal-Mart. According to Table 7902.5-A, Air France is required to store a shipment of paint thinner (a class I-B flammable liquid) over 120 gallons in a storage cabinet (the Air France facility is equipped with an approved automatic sprinkler system), while Table 7902.5-B provides a 15,000-gallon to 30,000-gallon exemption (depending on the size of the store) for paint thinner stored in retail establishments. The Houston Building Code also appears to provide an exception to the city's H-occupancy requirements for wholesale and retail establishments that store flammable and combustible liquids.
Pursuant to 49 CFR 107.205(b), Air France respectfully requests that a notice of this Application be published in the
Pursuant to 49 CFR 107.205(a), I hereby certify that a copy of this Application has been sent via first class mail postage pre-paid with an invitation to submit comments to:
Dated: October 15, 2003.
Office of the Comptroller of the Currency (OCC), Treasury; Office of
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the OCC, the OTS, the Board, and the FDIC (the “agencies”) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies'publication for public comment of a proposal to extend, without revision, the Report on Indebtedness of Executive Officers and Principal Shareholders and their Related Interests to Correspondent Banks (FFIEC 004), which are currently approved information collections. At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the FFIEC and the agencies should modify the report. The agencies will then submit the report to OMB for review and approval.
Comments must be submitted on or before January 12, 2004.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number, will be shared among the agencies.
OCC: Comments should be sent to the Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0070, 250 E Street, SW., Washington, DC 20219. Due to delays in paper mail delivery in the Washington area, commenters are encouraged to submit comments by fax or e-mail. Comments may be sent by fax to (202) 874-4448, or by e-mail to
OTS: Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, Attention: 1550-0075, Fax number (202) 906-6518, or e-mail to
Board: Written comments, which should refer to “FFIEC 004, 7100-0034” may be mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551. However, because paper mail in the Washington area and at the Board of Governors is subject to delay, please consider submitting your comments by electronic mail to
FDIC: Written comments should be addressed to Robert E. Feldman, Executive Secretary, Attention: Comments/Legal, Federal Deposit Insurance Corporation, 550 17th Street, N.W., Washington, D.C. 20429. All comment should refer to “FFIEC 004, 3064-0023.” Commenters are encouraged to submit comments by fax or electronic mail [FAX number (202) 898-3838; Internet address:
A copy of the comments may also be submitted to the OMB desk officer for the agencies: Joseph F. Lackey, Jr., Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503 or electronic mail to
Additional information or a copy of the collection may be requested from:
OCC: Jessie Dunaway, OCC Clearance Officer, or Camille Dixon, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, S.W., Washington, D.C. 20219.
OTS: Marilyn Burton, OTS Clearance Officer, (202) 906-6467, Office of Thrift Supervision, 1700 G Street, N.W., Washington, D.C. 20552.
Board: Cindy Ayouch, Federal Reserve Board Clearance Officer, (202) 452-3829, Division of Research and Statistics, Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, D.C. 20551. Telecommunications Device for the Deaf (TDD) users may call (202) 263-4869, Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, D.C. 20551.
FDIC: Steven F. Hanft, FDIC Clearance Officer, (202) 898-3907, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street N.W., Washington, D.C. 20429.
a. Whether the information collections are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
b. The accuracy of the agencies' estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this notice will be shared among the agencies. All comments will become a matter of public record. Written comments should address the accuracy of the burden estimates and ways to minimize burden as well as other relevant aspects of the information collection request.
Internal Revenue Service (IRS) Treasury.
Notice.
An open meeting of the Ad Hoc Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel (TAP) will be discussing issues on IRS Customer Service.
The meeting will be held Monday, December 1, 2003.
Judi Nicholas at 1-888-912-1227, or 206-220-6096.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 6 Taxpayer Advocacy Panel will be held Monday, December 1, 2003 from 8 a.m. Pacific Time to 8 a.m. Pacific Time via a telephone conference call. The public is invited to make oral comments. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 206-220-6096, or write to Judi Nicholas, TAP Office, 915 2nd Avenue, MS W-406, Seattle, WA 98174. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Judi Nicholas. Ms. Nicholas can be reached at 1-888-912-1227 or 206-220-6096.
The agenda will include the following: Various IRS issues.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment.
Comments must be submitted on or before December 15, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0154” in any correspondence.
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
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument.
Comments must be submitted on or before December 15, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0001” in any correspondence.
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-20), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before December 12, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0569” in any correspondence.
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
Most customer satisfaction surveys will be recurring so that VBA can create ongoing measures of performance and to determine how well the agency meets customer service standards. Each collection of information will consist of the minimum amount of information necessary to determine customer needs and to evaluate VBA's performance. VBA expects to conduct an estimated 100 focus groups and receive up to 80,000 comment cards involving a total of 6,640 hours each year for 2004, 2005, and 2006. In addition, VBA expects to distribute written surveys with a total annual burden of approximately 16,052 hours in 2004, 16,382 hours in 2005, and 16,382 hours in 2005. The grand totals for the focus groups, comment cards, and written surveys are 22,692 hours in 2004, 23,022 hours in 2005, and 23,022 hours in 2006.
Anyone may view the results of previously administered surveys on the internet by going to the following VBA surveys Web site:
The areas of concern to VBA and its customers may change over time, and it is important to have the ability to evaluate customer concerns quickly. OMB will be requested to grant generic clearance approval for a 3-year period to conduct customer satisfaction surveys, focus groups and to send out comment cards. Participation in the surveys, focus groups, and comment cards will be voluntary and the generic clearance will not be used to collect information required to obtain or maintain eligibility for a VA program or benefit. In order to maximize the voluntary response rates, the information collection will be designed to make participation convenient, simple, and free of unnecessary barriers. Baseline data obtained through these information collections will be used to improve customer service standards. VBA will consult with OMB regarding each specific information collection during this approval period.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument.
Comments must be submitted on or before December 15, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0465” in any correspondence.
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 12, 2004.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Please refer to “OMB Control No. 2900-0518” in any correspondence.
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Acting Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 12, 2004.
Submit written comments on the collection of information to Ann W. Bickoff, Veterans Health Administration (193B1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail
Ann W. Bickoff (202) 273-8310 or FAX (202) 273-9381. These are not toll-free numbers.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
(1) The variety and prevalence of health conditions experienced by veterans of Vietnam, the Persian Gulf, and Bosnia-Kosovo and the perception of the extent that they are related to military service in a theater of operations;
(2) by region of deployment, the most frequently mentioned environmental exposures and medical countermeasures, and the level of concern of veterans regarding the perceived health impact of these exposures;
(3) which health problems, symptoms, and exposures veterans most want to receive information about; and to
(4) query veterans regarding their perception of the most desirable
Fulfillment of the survey will facilitate the development of risk communication programs that will effectively provide accurate and timely information regarding health risks that veterans may experience as a consequence of deployment related environmental exposures.
By direction of the Secretary:
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 12, 2004.
Submit written comments on the collection of information to Ann W. Bickoff, Veterans Health Administration (193B1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Please refer to “OMB Control No. 2900-0219” in any correspondence.
Ann W. Bickoff at (202) 273-8310 or FAX (202) 273-9381.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Application for CHAMPVA Benefits, VA Form 10-10d.
b. CHAMPVA Claim Form, VA Form 10-7959a.
c. CHAMPVA—Other Health Insurance (OHI) Certification, VA Form 10-7959c.
d. CHAMPVA Potential Liability Claim, VA Form 10-7959d.
a. VA Form 10-10d is used to determine eligibility of persons applying for healthcare benefits under the CHAMPVA program.
b. VA Form 10-7959a is used to accurate adjudicate and process beneficiaries claims for payment/reimbursement of related healthcare expenses.
c. VA Form 10-7959c is used to systematically obtain other health insurance information and to correctly coordinate benefits among all liable parties.
d. VA Form 10-7959d is used to recover costs associated with healthcare services related to injury or illness caused by a third party.
a. VA Form 10-10d—3,417 hours.
b. VA Form 10-7959a—383,333 hours.
c. VA Form 10-7959c—5,000 hours.
d. VA Form 10-7959d—2,917 hours.
a. VA Form 10-10d—10 minutes.
b. VA Form 10-7959a—10 minutes.
c. VA Form 10-7959c—10 minutes.
d. VA Form 10-7959d—7 minutes.
a. VA Form 10-10d—20,500.
b. VA Form 10-7959a—2,300,000.
c. VA Form 10-7959c—30,000.
d. VA Form 10-7959d—25,000.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA) is announcing an opportunity for public comment on the proposed collection of information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 12, 2004.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20M35), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Please refer to “OMB Control No. 2900-0176” in any correspondence.
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Acting Secretary.
Environmental Protection Agency (EPA).
Final rule.
This action promulgates national emission standards for hazardous air pollutants (NESHAP) for metal can surface coating operations located at major sources of hazardous air pollutants (HAP). The final standards implement section 112(d) of the Clean Air Act (CAA) by requiring these operations to meet HAP emission standards reflecting the application of the maximum achievable control technology (MACT). The final rule will protect air quality and promote public health by reducing emissions of HAP from facilities in the metal can surface coating source category. The HAP emitted by these facilities include ethylene glycol monobutyl ether (EGBE) and other glycol ethers, xylenes, hexane, methyl isobutyl ketone (MIBK), and methyl ethyl ketone (MEK). These HAP are associated with a variety of adverse health effects which include chronic health disorders (
This rule is effective November 13, 2003. The incorporation by reference of certain publications listed in today's final rule is approved by the Director of the Federal Register as of November 13, 2003.
Mr. Paul Almodóvar, Coatings and Consumer Products Group, Emission Standards Division (C539-03), U.S. EPA, Research Triangle Park, NC 27711; telephone number (919) 541-0283; facsimile number (919) 541-5689; electronic mail address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your coating operation is regulated by this action, you should examine the applicability criteria in § 63.3481 of the final rule.
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
Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. The metal can (surface coating) category of major sources was listed on July 16, 1992 (57 FR 31576) under the Surface Coating Processes industry group. Major sources of HAP are those that emit or have the potential to emit considering controls equal to or greater than 9.1 Mg/yr (10 tpy) of any one HAP or 22.7 Mg/yr (25 tpy) of any combination of HAP.
Section 112(c)(2) of the CAA requires that we establish NESHAP for the control of HAP from both new and existing major sources, based on the criteria set out in section 112(d). The CAA requires the NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable, taking into consideration the cost of achieving the emission reduction, any non-air quality health and environmental impacts, and energy requirements. This level of control is commonly referred to as the MACT.
The MACT floor is the minimum control level allowed for NESHAP and is defined under section 112(d)(3) of the CAA. In essence, the MACT floor ensures that the standards are set at a level that ensures that all major sources achieve the level of control at least as stringent as that already achieved by the better-controlled and lower-emitting sources in each source category or subcategory. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources).
In developing the final NESHAP, we considered control options that are more stringent than the floor, taking into consideration the cost of achieving the emission reduction, any non-air quality health and environmental impacts, and energy requirements. In the final rule, EPA is promulgating standards for both existing and new sources consistent with these statutory requirements.
The primary emission sources in metal can surface coating operations are coating application lines, drying and curing ovens, mixing and thinning areas, and equipment cleaning. Coating application lines and drying and curing ovens are the largest sources of HAP emissions. Recent reformulation efforts involving the primary coatings used in metal can surface coating operations are likely to continue as a result of the final rule and will serve to reduce HAP emissions from these sources. Mixing and thinning areas and equipment cleaning are smaller HAP emission sources, and work practice standards are used to limit the HAP emissions from these sources.
Available emission data collected during the development of the NESHAP show that the primary organic HAP emitted from metal can coating operations include EGBE and other glycol ethers, xylenes, hexane, MEK, and MIBK. Other significant organic HAP identified include isophorone, ethyl benzene, toluene, cumene, napthalene, and formaldehyde. Organic HAP emissions are regulated by the final metal can surface coating rule.
Ethylene glycol monobutyl ether and other glycol ethers, xylenes, hexane, MEK, and MIBK account for 95 percent of the nationwide HAP emissions from this source category. These HAP are associated with a variety of adverse health effects which include chronic health disorders (
We do not have current detailed data on each of the facilities covered by these emission standards for this source category or on the people living around the facilities that would be necessary to conduct an analysis to determine the actual population exposures to the HAP emitted from these facilities and potential for resultant health effects. Therefore, we do not know the extent to which the adverse health effects described above occur in the populations surrounding these facilities. However, to the extent that adverse effects do occur, the final rule will reduce emissions and subsequent exposures.
The final rule applies to you if you own or operate a metal can surface coating operation that uses at least 5,700 liters (1,500 gallons (gal)) of coatings per year and is a major source, is located at a major source, or is part of a major source of HAP emissions, whether or not you manufacture the metal can substrate. The surface coating operations themselves are not required to be major sources of HAP emissions in order for the surface coating operations at a major source facility to be covered by the final rule.
A metal can surface coating facility is any facility that coats metal cans or ends (including decorative tins) or metal crowns or closures for any type of can during any stage of the can manufacturing process. It includes the coating of metal sheets for subsequent processing into cans or can parts, but not the coating of metal coils for cans or can parts. (Coil coating for cans and can parts is included in the NESHAP for the surface coating of metal coil; 40 CFR part 63, subpart SSSS). The source category does not include the coating of pails and drums, which is covered in the NESHAP for the surface coating of miscellaneous metal parts and products (40 CFR part 63, subpart MMMM).
We have established four subcategories in the metal can surface coating category, including: one- and two-piece D&I can body coating, sheetcoating, three-piece can body assembly coating, and end coating. Some metal can surface coating facilities include coating operations in more than one subcategory. In those cases, the facilities are subject to more than one emission limit.
You are not subject to the final rule if your coating operation is located at an area source. An area source of HAP is any facility that has the potential to emit HAP but is not a major source. You may establish area source status by limiting the source's potential to emit HAP through appropriate mechanisms available through the permitting authority.
The outcome of two delisting petitions that have been submitted to EPA could significantly affect which sources will be subject to the final rule. These petitions are the petition to delist EGBE from the HAP list and the petition to delist the two-piece beverage can segment from the source category list. Both petitions are being reviewed by EPA. If granted, the delisting of either EGBE or the two-piece beverage can segment could significantly decrease the number of sources affected by the final rule. Once decisions on the petitions are made, we will expeditiously determine whether changes to the final rule are warranted.
We define an affected source as a stationary source, group of stationary sources, or part of a stationary source to which a specific emission standard applies. The final rule for metal can surface coating defines the affected source as the collection of all surface coating operations within a facility associated with metal cans and ends (including decorative tins) or metal crowns or closures. Those operations involve the following: preparation of a coating for application (
The affected source does not include research or laboratory equipment or janitorial, building, or facility maintenance operations.
For thermal oxidizers, you must monitor the combustion temperature. For catalytic oxidizers, you must monitor the temperature immediately before and after the catalyst bed or you must monitor the temperature at the inlet to the catalyst bed and implement a site-specific inspection and maintenance plan for the catalytic oxidizer. For carbon adsorbers for which you do not conduct a liquid-liquid material balance, you must monitor the carbon bed temperature and the amount of steam or nitrogen used to desorb the bed. For condensers, you must monitor the outlet gas temperature from the condenser. For concentrators, you must monitor the temperature of the desorption concentrate stream and the
All site-specific parameter limits that you establish must reflect operation of the capture system and control devices during a performance test that demonstrates achievement of the emission limits during representative operating conditions.
Based on information received from the metal can industry during the development of the NESHAP and information available from several similar coating industries for which NESHAP have already been promulgated, we identified a variety of work practice measures for cleaning, storage, mixing, and waste handling. If you use a capture system and add-on control device to reduce emissions, you are required to develop and implement a work practice plan that specifies practices and procedures to ensure that, at a minimum, all organic-HAP-containing liquids and waste materials are stored in closed containers; spills of all organic-HAP-containing materials are minimized; closed containers or pipes are used to transport all organic-HAP-containing materials; mixing vessels for organic-HAP-containing materials are kept closed except when adding to, removing, or mixing the contents; and organic HAP emissions are minimized during all cleaning operations.
If your affected source has an existing, documented plan that incorporates steps taken to minimize emissions from the aforementioned sources, then your existing plan may be used to satisfy the requirement for a work practice plan.
The NESHAP General Provisions at 40 CFR part 63, subpart A, codify certain procedures and criteria for all 40 CFR part 63 NESHAP and apply to you as indicated in the final rule. The General Provisions contain administrative procedures, preconstruction review procedures for new sources, and procedures for conducting compliance-related activities, such as notifications, recordkeeping and reporting, performance testing, and monitoring. The final rule refers to individual sections of the General Provisions to emphasize key sections that are relevant. However, unless specifically overridden in the final rule, all of the applicable General Provisions requirements apply to you.
Existing affected sources must be in compliance with the final rule no later than November 13, 2006. New and reconstructed affected sources must be in compliance upon initial startup of the affected source or by November 13, 2003, whichever is later. However, affected sources are not required to demonstrate compliance until the end of the initial compliance period when they will have accumulated the necessary records to document the rolling 12-month organic HAP emission rate.
Compliance with the emission limits is based on a rolling 12-month organic HAP emission rate determined each month. Each 12-month period is a compliance period. The initial compliance period, therefore, is the 12-month period beginning on the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period begins on the compliance date and extends through the end of that month plus the following 12 months. In other words, the initial compliance period could be almost 13 months long, but all subsequent compliance periods will be 12 months long. We have defined “month” as a calendar month or a pre-specified period of 28 to 35 days to allow for flexibility at sources where data are based on a business accounting period.
Being “in compliance” means that the owner or operator of the affected source meets the requirements to achieve the final emission limitations during the initial compliance period. However, the owner or operator will not have accumulated the records for the rolling 12-month organic HAP emission rate until the end of the initial compliance period. At the end of the initial compliance period, the owner or operator uses the data and records generated to determine whether or not the affected source is in compliance with the organic HAP emission limit and other applicable requirements for that period. If the affected source does not meet the applicable limit and other requirements, it is out of compliance for the entire compliance period.
Option 1: Compliance Based on the Compliant Material Option. If you demonstrate compliance based on the compliant material option, you must determine the mass of organic HAP in all coatings and thinners used each month during the initial compliance period and the volume fraction of coating solids in all coatings used each month during the initial compliance period. To determine the mass of organic HAP in coatings and thinners and the volume fraction of coating solids, you may use either manufacturer's data or test results using the test methods listed below. You may use alternative test methods provided that you get EPA approval in accordance with 40 CFR 63.7(f). However, if there is any inconsistency between the test method results (either EPA's or an approved alternative) and manufacturer's data, the test method results will prevail for compliance and enforcement purposes unless, after consultation, you can demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
• For organic HAP content, use Method 311 of 40 CFR part 63, appendix A.
• The final rule allows you to use nonaqueous volatile matter as a surrogate for organic HAP. If you choose that option, then use Method 24 of 40 CFR part 60, appendix A, to determine nonaqueous volatile matter.
• For volume fraction of coating solids, use either information from the supplier or manufacturer of the material, American Society of Testing and Materials (ASTM) Method D2697-86(1998), or ASTM Method D6093-97.
To demonstrate initial compliance based on the compliant materials option, you are required to demonstrate that the organic HAP content of each coating meets the applicable emission
Option 2: Compliance Based on the Emission Rate without Add-on Controls Option. If you demonstrate compliance based on the emission rate without add-on controls option, you must determine the mass of organic HAP in all coatings and thinners used in each coating type segment each month during the initial compliance period, and the volume fraction of coating solids in all coatings in each coating type segment used each month during the initial compliance period.
To determine the mass of organic HAP in coatings and thinners and the volume fraction of coating solids, you may use either manufacturer's data or test results using the test methods listed below. You may use alternative test methods provided that you get EPA approval in accordance with 40 CFR 63.7(f). However, if there is any inconsistency between the test method results (either EPA's or an approved alternative) and manufacturer's data, the test method results will prevail for compliance and enforcement purposes unless, after consultation, you can demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
• For organic HAP content, use Method 311 in 40 CFR part 63, appendix A.
• The final rule allows you to use nonaqueous volatile matter as a surrogate for organic HAP. If you choose that option, use Method 24 in 40 CFR part 60, appendix A to determine nonaqueous volatile matter.
• For volume fraction of coating solids, use either information from the supplier or manufacturer of the material, ASTM Method D2697-86 (Reapproved 1998), or ASTM Method D6093-97.
To demonstrate initial compliance based on the emission rate without add-on controls option, you are required to demonstrate that the total mass of organic HAP in all coatings and thinners in each coating type segment divided by the total volume of coating solids in that coating type segment meets the applicable emission limit. For the emission rate without add-on controls option, you are required to perform the following:
• Determine the quantity of each coating and thinner used in each coating type segment.
• Determine the mass of organic HAP in each coating and thinner in each coating type segment.
• Determine the volume fraction of coating solids for each coating in each coating type segment.
• Calculate the total mass of organic HAP in all materials in each coating type segment and total volume of coating solids in each coating type segment for each month of the initial compliance period. You may subtract from the total mass of organic HAP the amount contained in waste materials you send to a hazardous waste treatment, storage, and disposal facility regulated under 40 CFR part 262, 264, 265, or 266.
• Calculate the ratio of the total mass of organic HAP for the materials used in each coating type segment to the total volume of coating solids used in the segment.
• Record the calculations and results and include them in your Notification of Compliance Status.
Alternatively, if you apply coatings in more than one coating type segment within a subcategory, you may calculate an overall HAP emission limit for the subcategory and demonstrate compliance by including all coatings and thinners in all coating type segments in the subcategory in calculating the ratio of total mass of organic HAP to total volume of coating solids. If you use this approach, you must use the subcategory limit throughout the 12-month initial compliance period and may not switch between compliance with limits for individual coating type segments and an overall limit. Also, if you follow this approach, you may not include coatings in different subcategories in determining your overall HAP limit.
Option 3: Compliance Based on the Emission Rate with Add-on Controls Option. If you use a capture system and add-on control device other than a solvent recovery system for which you conduct a liquid-liquid material balance, your testing and initial compliance requirements are as follows:
• Conduct an initial performance test to determine the capture and control efficiencies of the equipment and to establish operating limits to be achieved on a continuous basis.
• Determine the mass of organic HAP in each material and the volume fraction of coating solids for each coating used each month of the initial compliance period.
• Calculate the organic HAP emissions from the controlled coating operations using the capture and control efficiencies determined during the performance test and the total mass of organic HAP in materials used in controlled coating operations.
• Calculate the ratio of the total mass of organic HAP emissions to the total volume of coating solids used each month of the initial compliance period.
• Record the calculations and results and include them in the Notification of Compliance Status.
If you use a capture system and add-on control device other than a solvent recovery system for which you conduct liquid-liquid material balances, you must determine both the efficiency of the capture system and the emissions reduction efficiency of the control device. To determine the capture efficiency, you must either verify the presence of a PTE using EPA Method 204 of 40 CFR part 51, appendix M, or use one of the protocols in § 63.3544 of the final rule to measure capture efficiency. If you have a PTE, apply and dry all the materials within the PTE, and route all exhaust gases from the PTE to a control device, then you may assume 100 percent capture.
To determine the emissions reduction efficiency of the control device, you must conduct measurements of the inlet and outlet gas streams. The test must consist of three runs, each run lasting at least 1 hour, using the following EPA Methods in 40 CFR part 60, appendix A:
• Method 1 or 1A for selection of the sampling sites.
• Method 2, 2A, 2C, 2D, 2F, or 2G to determine the gas volumetric flow rate.
• Method 3, 3A, or 3B for gas analysis to determine dry molecular weight. You may also use as an alternative to Method 3B, the manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas in ANSI/ASME PTC 19.10-1981.
• Method 4 to determine stack moisture.
• Method 25 or 25A to determine organic volatile matter concentration.
Alternatively, any other test method or data that have been validated according to the applicable procedures in Method 301 of 40 CFR part 63, appendix A, and approved by the Administrator could be used.
If you use a solvent recovery system, you may determine the overall control efficiency using a liquid-liquid material balance instead of conducting an initial performance test. If you use the material balance alternative, you are required to measure the amount of all materials used in the affected source during each month of the initial compliance period and determine the volatile matter contained in these materials. You must also measure the amount of volatile matter recovered by the solvent recovery system each month of the compliance period. Then, you must compare the amount recovered to the amount used to determine the overall control efficiency and apply this efficiency to the ratio of organic HAP to coating solids for the materials used. You must record the
Alternatively, if you apply coatings in more than one coating type segment within a subcategory, you may calculate an overall HAP emission limit for the subcategory and demonstrate compliance by including all coatings and thinners in all coating type segments in the subcategory in calculating the ratio of total mass of organic HAP to total volume of coating solids. If you use this approach, you must use the subcategory limit throughout the compliance period and may not switch between compliance with limits for individual coating type segments and an overall limit. Also, if you follow this approach, you may not include coatings in different subcategories in determining your overall HAP limit.
You are required to install, calibrate, maintain, and continuously operate all monitoring equipment according to the manufacturer's specifications and ensure that the continuous parameter monitoring systems (CPMS) meet the requirements in § 63.3547 of the final rule. If you use control devices other than those identified in the final rule, you must submit the operating parameters to be monitored to the Administrator for approval. The authority to approve the parameters to be monitored is retained by EPA and is not delegated to States.
Option 4: Compliance Based on the Control Efficiency/Outlet Concentration Option. If you use a capture system and add-on control device other than a solvent recovery system for which you conduct a liquid-liquid material balance, you may meet either of the applicable alternative limits summarized in Table 4 of this preamble instead of the organic HAP emission rate limits summarized in Tables 2 and 3 of this preamble. Prior to the initial performance test, you are required to install control device parameter monitoring equipment to be used to demonstrate compliance with the capture and control efficiencies (or the capture efficiency of the capture system and the oxidizer outlet concentration) and to establish operating limits to be achieved on a continuous basis. During the initial compliance test, you must use the control device parameter monitoring equipment to establish parameter values that represent your operating requirements for the control systems. You must record the initial performance test results and include them in the Notification of Compliance Status.
If you use a capture system and add-on control device other than a solvent recovery system for which you conduct liquid-liquid material balances, you must verify that the efficiency of the capture system is 100 percent and determine the emissions reduction efficiency of the control device. To verify the capture efficiency, you must either verify the presence of a PTE using EPA Method 204 of 40 CFR part 51, appendix M, or use one of the protocols in § 63.3544 of the final rule to measure capture efficiency. If you have a PTE, apply and dry all the materials within the PTE and route all exhaust gases from the enclosure to a control device, then you may assume 100 percent capture.
To determine the emissions reduction efficiency of the control device, you must conduct measurements of the inlet and outlet gas streams. The test must consist of three runs, each run lasting at least 1 hour, using the following EPA Methods in 40 CFR part 60, appendix A:
• Method 1 or 1A for selection of the sampling sites.
• Method 2, 2A, 2C, 2D, 2F, or 2G to determine the gas volumetric flow rate.
• Method 3, 3A, or 3B for gas analysis to determine dry molecular weight. You may also use as an alternative to Method 3B, the manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas in ANSI/ASME PTC 19.10-1981.
• Method 4 to determine stack moisture.
• Method 25 or 25A to determine organic volatile matter concentration.
If you use a solvent recovery system, you may determine the overall control efficiency using a liquid-liquid material balance instead of conducting an initial performance test. If you use the material balance alternative, you are required to measure the amount of all materials used in the affected source during each month of the initial compliance period and determine the volatile matter contained in these materials. You must also measure the amount of volatile matter recovered by the solvent recovery system each month of the initial compliance period. Then, you must compare the amount recovered to the amount used to determine the overall control efficiency and apply this efficiency to the ratio of organic HAP to coating solids for the materials used. You must record the calculations and results and include them in your Notification of Compliance Status.
You are required to install, calibrate, maintain, and continuously operate all monitoring equipment according to the manufacturer's specifications and ensure that the CPMS meet the requirements in § 63.3547 of the final rule. If you use control devices other than those identified in the final rule, you must submit the operating parameters to be monitored to the Administrator for approval. The authority to approve the parameters to
Option 2: Compliance Based on the Emission Rate without Add-on Controls Option. If you demonstrate compliance with the final emission limits based on the emission rate without add-on controls option, you will demonstrate continuous compliance if, for each rolling 12-month compliance period, the ratio of organic HAP in all coatings and thinners in each coating type segment to coating solids in that coating type segment is less than or equal to the applicable emission limit. You follow the same procedures for calculating the organic HAP to coating solids ratio that you used for the initial compliance period. If you use an alternative calculated overall HAP emission limit for all coating type segments within a subcategory, you use the same procedures that you used for the initial compliance period. Whichever approach you use must be used consistently throughout each 12-month compliance period.
Option 3: Compliance Based on the Emission Rate with Add-on Controls Option. For each coating operation on which you use a capture system and control device other than a solvent recovery system for which you conduct a liquid-liquid material balance, you must use the continuous parameter monitoring results for the month in determining the mass of organic HAP emissions. If the monitoring results indicate no deviations from the operating limits and there were no bypasses of the control device, you would assume the capture system and control device are achieving the same percent emissions reduction efficiency as they did during the most recent performance test in which compliance was demonstrated. You would then apply that percent reduction to the total mass of organic HAP in materials used in controlled coating operations to determine the monthly emission rate from those operations. If there were any deviations from the operating limits during the month or any bypasses of the control device, you must account for them in the calculation of the monthly emission rate by assuming the capture system and control device were achieving zero emissions reduction during the periods of deviation, unless you have other data indicating the actual efficiency of the emission capture system and add-on control device, and the use of these data is approved by the Administrator. Then, you would determine the annual average emission rate by calculating the ratio for the most recent 12-month period.
For each coating operation on which you use a solvent recovery system and conduct a liquid-liquid material balance each month, you will use the liquid-liquid material balance to determine control efficiency. To determine the overall control efficiency, you must measure the amount of all materials used during each month and determine the volatile matter content of these materials. You must also measure the amount of volatile matter recovered by the solvent recovery system during the month, calculate the overall control efficiency, and apply it to the total mass of organic HAP in the materials used to determine total organic HAP emissions. Then, you would determine the annual average emission rate by taking the average of the monthly ratios for the most recent 12-month period.
If you operate a capture system and control device that allow emissions to bypass the control device, you must monitor for potential bypass of the control device to demonstrate that organic HAP emissions from each emission point within the affected source are being routed to the control device. You may choose from the following four monitoring procedures:
• Flow control position indicator to provide a record of whether the exhaust stream is directed to the control device.
• Car-seal or lock-and-key valve closures to secure the bypass line valve in the closed position when the control device is operating.
• Valve closure continuous monitoring to ensure that any bypass line valve or damper is closed when the control device is operating.
• Automatic shutdown system to stop the coating operation when flow is diverted from the control device.
If the bypass monitoring procedures indicate that emissions are not routed to the control device, you have deviated from your monitoring plan.
Option 4: Compliance Based on the Control Efficiency/Outlet Concentration Option. If you use a capture system and add-on control device other than a solvent recovery system for which you conduct a liquid-liquid material balance, your testing and continuous compliance requirements are the same as those in option 3. For add-on control systems, you are required to install control device parameter monitoring equipment to be used to demonstrate compliance with the operating requirements for add-on control systems in the final rule. If you operate a CPMS, it has to collect data at least every 15 minutes, and you must have at least three data points per hour to have a valid hour of data. You must operate the CPMS at all times that the surface coating operation and control systems
You are required to comply with the applicable requirements in the NESHAP General Provisions, subpart A of 40 CFR part 63, as described in the final rule. The General Provisions notification requirements include initial notifications, notification of performance test if you are complying using a capture system and control device, notification of compliance status, and additional notifications required for affected sources with continuous monitoring systems. The General Provisions also require certain records and periodic reports.
If you elect to comply by using a capture system and control device for which you conduct performance tests, you must provide the results of the tests. Your notification must also include the measured range of each monitored parameter, the operating limits established during the performance test, and information showing whether the affected source complied with its operating limits during the initial compliance period.
Depending on the compliance option that you choose, you must keep records of the following:
• Organic HAP content, volatile matter content, coating solids content, and quantity of the coatings and other materials applied.
• All documentation supporting Initial Notifications and Notifications of Compliance Status.
If you demonstrate compliance by using a capture system and control device, you also need to keep records of the following:
• The occurrence and duration of each SSM of the emission capture system and control device.
• All maintenance performed on the capture system and control device.
• Actions taken during SSM that are different from the procedures specified in the affected source's SSMP.
• All information necessary to demonstrate conformance with the affected source's SSMP when the plan procedures are followed.
• All information necessary to demonstrate conformance with the affected source's plan for minimizing emissions from mixing, storage, and waste handling operations.
• Each period during which a CPMS is malfunctioning or inoperative (including out-of-control periods).
• All required measurements needed to demonstrate compliance with the standards.
• All results of performance tests.
The final rule requires you to collect and keep records according to your monitoring plan. Failure to collect and keep the specified minimum data is a deviation that is separate from deviations from emission limits, operating limits, or work practice standards.
Deviations, as determined from those records, must be recorded and also reported. A deviation is any instance when any requirement or obligation established by the final rule including, but not limited to, the emission limits, operating limits, and work practice standards, is not met.
If you use a capture system and control device to reduce organic HAP emissions, you must make your SSMP available for inspection if the Administrator requests to see it. The plan must stay in your records for the life of the affected source or until the affected source is no longer subject to the final standards. If you revise the plan, you need to keep the previous superceded versions on record for 5 years following the revision.
• Report each deviation from the emission limit.
• If you use an emission capture system and control device, report each deviation from the work practice standards.
• If you use an emission capture system and control device, report each deviation from an operating limit and report each time a bypass line diverts emissions from the control device to the atmosphere.
• Report other specific information on the periods of time and details of deviations that occurred.
You must also include an explanation in each semiannual report if a change occurs that might affect the compliance status of the affected source or if you
Refer to the BID (“National Emission Standards for Hazardous Air Pollutants: Surface Coating of Metal Cans Background Information for Final Standards—Summary of Public Comments and Responses,” August 2003, EPA-453/R-03-009), for EPA's responses to each public comment; available in Docket No. OAR-2003-0005 (formerly Docket No. A-98-41).
We have also clarified that the final rule applies to affected sources that use at least 5,700 liters (1,500 gal) of coatings per year. This means that the coating usage limit applies to the entire source rather than to each subcategory.
We have increased the cost estimates for computer equipment and software to include upgrades for larger facilities, as well as initial computer purchases for smaller facilities. The initial estimates included a cost of $2,000 for the initial purchase for smaller facilities. The final rule includes a cost of computer equipment and software of $3,500 (per facility) for all facilities.
We have adjusted our monitoring equipment costs for add-on control devices to include installation costs, equipment costs for PTE, and costs for monitoring software. We have updated our monitoring cost estimates to include a total of $19,500 per facility instead of $4,000 per facility.
We have included regenerative thermal oxidizer (RTO) operation and maintenance costs because they were inadvertently excluded from the previous calculations. Assuming that operating time will require 30 minutes per shift and equipment maintenance will require 1 hour per week, the overall RTO capital equipment costs increase by $1.38 million.
The cost estimate as proposed used 1999 labor rates, and the current analysis uses 2001 labor rates for the metal can industry. The costs for labor requirements, computer equipment, monitoring equipment for add-on control devices, installation for the monitoring equipment, and operation and maintenance of recordkeeping and reporting are $6,823,709 for years 1 through 3 and $8,367,800 per year for year 4 and beyond.
As part of a compliance demonstration, an owner or operator of an affected source has to calculate the organic HAP emission reduction for operations with add-on capture and control systems. The equation used to calculate the emission reduction achieved with such systems in the proposed rule decreased the overall control efficiency to account for time periods when there were deviations. Using time periods alone to account for periods of deviations assumes essentially steady-state operations over the compliance period, with little variation in the quantity of coating materials used or their HAP content. While steady-state conditions may occur at some operations, others may use different quantities of coating materials or materials with different HAP content. To allow flexibility for operations that could vary over time, we have revised the equation to determine overall control efficiency.
The terms associated with the total time period of deviations (T
The final rule will affect 142 existing major source metal can surface coating facilities. The impacts are presented relative to a baseline reflecting the level of control prior to the final rule. Because of consolidation in the metal can surface coating industry, we do not expect there to be any net growth within the industry in the next 5 years. Therefore, the estimate of the impacts of the final rule is presented for existing facilities only. For a facility that would already be in compliance with the emission limits in the final rule, only MRR cost impacts were estimated. For more information on how impacts were estimated,
We estimated that compliance with the emission limits in the final rule will reduce nationwide organic HAP emissions from existing major affected sources by approximately 6,160 Mg/yr (6,800 tpy). That represents a reduction of 70 percent from the baseline organic HAP emissions of 8,700 Mg/yr (9,600 tpy). Table 5 of this preamble gives a summary of the primary air impacts for major coating segment groupings associated with implementation of the final rule.
Cost impacts include the costs of recordkeeping and reporting, capital equipment costs, performance testing costs, monitoring equipment costs, and material costs as facilities comply with the final rule. Recordkeeping and reporting include all labor hours related to the tracking of coating usage, the cost of purchasing computer equipment, the labor hours required to write and submit reports, and the labor hours required to train personnel. Capital equipment costs for the facilities that choose to use capture equipment and add-on control devices to comply with the final rule include costs for the purchase, installation, and operation of the equipment. Performance testing costs for the facilities that choose to use add-on control devices to comply with the final standards include the labor hours required for a contractor to conduct performance testing on each control device used, and to develop the associated reports for recordkeeping and reporting purposes. Monitoring equipment costs include the purchase of thermocouples, pressure sensors, and data loggers and the installation of equipment.
Material costs include the cost of switching to low- or no-HAP coatings. For facilities that choose to use low- or no-HAP coatings to comply with the final standards, coatings with lower-HAP content are assumed to be more expensive than coatings with higher-HAP content. According to information received from industry, we assumed the incremental cost increase to be $2.00 per gal for inside sprays and $5.00 per gal for side seam stripes, which are used in three-piece food can assembly and three-piece nonfood can assembly subcategories; and $2.00 per gal for nonaseptic end seal compounds, which are used in the end coating subcategory. These incremental costs are the estimated additional costs that each
We estimate the total annualized costs for compliance with the final rule to be $58.7 million. Those estimates include $8.4 million for MRR requirements, $4.1 million for coating material costs, and $46.2 million for capital equipment.
We prepared an economic impact analysis (EIA) to provide an estimate of the facility and market impacts of the final rule, as well as the social costs. The goal of the EIA was to estimate the market response of the metal can coating and production facilities to the final rule and to determine the economic impacts. Compliance costs are associated with chemical substitution during the coating process, the installation of pollution control equipment, and recordkeeping and reporting activities. We estimate the total annualized compliance costs to be $58.7 million per year divided across 142 major source facilities (owned by 30 companies).
In terms of industry impacts, metal can producers could experience a total projected decrease of $16.4 million in pretax earnings, which reflects the compliance costs associated with the production of metal cans and the resulting reductions in revenues due to the increase in the prices of the directly affected product markets and reduced quantities purchased. Through the market impacts described above, the final rule is expected to create both gainers and losers within the metal can industry. Approximately one-third of the modeled facilities may experience an increase in pretax earnings as a result of price increases that exceed their compliance costs per unit. In contrast, the remaining two-thirds of metal can facilities may experience losses in pretax earnings. In addition, the EIA indicates that none of the facilities within the metal can market are at risk of closure because of the final rule. We project overall employment to decrease by 242 employees, or 1.0 percent, as a result of the final rule.
Based on the market analysis, we project the total social cost of the final rule to be $55.7 million. The estimated social costs differ slightly from the projected engineering costs because social costs account for producer and consumer behavior. Consumers are projected to bear $34.6 million or 60 percent of the total social costs of the final rule. Producers could bear $21.6 million, or 40 percent of the total social costs. For more information, consult the EIA report supporting the final rule.
Based on information from the industry survey responses, we found no indication that the use of low- or no-organic-HAP content coatings and thinners at existing sources would result in any increase or decrease in non-air health, environmental, and energy impacts. There will be no change in utility requirements associated with the use of these materials, so there will be no change in the amount of energy consumed as a result of the material conversion. Also, there will be no significant change in the amount of materials used or the amount of waste produced.
Many facilities in the draw and iron (D&I) can body coating and sheetcoating subcategories currently use add-on emission control devices to meet existing requirements; consequently, we anticipate that facilities in those subcategories will use add-on controls to comply with the final rule. Secondary air and energy impacts will result from fuel combustion needed to operate these control devices, which are expected to be RTO.
The RTO require electricity and the combustion of natural gas to operate and maintain operating temperatures. The electricity costs of using RTO are included in the capital expenditures. By-products of fuel combustion required to generate electricity and maintain RTO operating temperature include emission of carbon monoxide, nitrogen oxides, sulfur dioxide, and particulate matter less than 10 microns in diameter. Assuming the electricity required for RTO operation is generated at coal-fired plants built since 1978 and using air pollution emissions factors, we estimate that generation of electricity required to operate RTO at all affected D&I can body coating and sheetcoating facilities will result in increases in the following air pollutants: carbon monoxide, 35 tpy; nitrogen oxides, 156 tpy; sulfur dioxide, 775 tpy; and particulate matter, 70 tpy.
Energy impacts include the consumption of electricity and natural gas needed to operate RTO. We estimate that electricity consumption from the operation of RTO at all D&I can body coating and sheetcoating facilities will increase by 34,500,000 kilowatt hours per year, and fuel energy consumption resulting from burning natural gas will increase by 672,300 million British thermal units per year. We estimate that no significant secondary water or solid waste impacts will result from the operation of emission control devices.
The outcome of two delisting petitions that have been submitted to EPA could significantly affect the estimated impacts of the final rule. These petitions are the petition to delist EGBE from the HAP list and the petition to delist the two-piece beverage can segment from the source category list. Both petitions are being reviewed by EPA. If granted, the delisting of either EGBE or the two-piece beverage can segment could significantly decrease the number of sources affected by the final rule and could affect the final emission limits. Thus, the estimated impacts could change. Once decisions on the petitions are made, we will expeditiously determine whether changes to the final rule are warranted. If changes are appropriate, EPA will take prompt action to issue such changes and to ensure that facilities do not incur unnecessary compliance expenses. The EPA will also work with affected facilities to ensure that they are not subject to inappropriate sanctions.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and, therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive 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 obligation 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 the final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to OMB review.
The information collection requirements in the final rule have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501,
The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A) which are mandatory for all operators subject to national emission standards. Those recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.
The final rule requires maintaining records of all coating and thinning materials data and calculations used to determine compliance. This information includes the amount (kg) used during each 12-month compliance period, mass fraction organic HAP, and, for coating materials only, mass fraction of solids.
If an add-on control device is used, records must be kept of the capture efficiency of the capture system, destruction or removal efficiency of the add-on control device, and the monitored operating parameters. In addition, records must be kept of each calculation of the affected sourcewide emissions for each monthly and rolling 12-month compliance period and all data, calculations, test results, and other supporting information used to determine this value. The recordkeeping requirements are only for the specific information needed to determine compliance.
The MRR burden for this collection (averaged over the first 3 years after the effective date of the promulgated rule) is estimated to be approximately 7,815 labor hours per year at a total annual cost of $2.27 million. That estimate includes reviewing the regulation, conducting a one-time performance test (with repeat tests where needed), and submitting the report(s); one-time submission of a SSMP with semiannual reports for any event when the procedures in the plan were not followed; semiannual compliance status reports; and recordkeeping.
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 rules are listed in 40 CFR part 9. When this ICR is approved by OMB, the EPA will publish a technical amendment to 40 CFR part 9 in the
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule. The EPA has also determined that the final rule will not have a significant economic impact on a substantial number of small entities. For the purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business according to the Small Business Administration (SBA) size standards by NAICS code ranging from 500 to 1,000 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impact of today's final rule on small entities, EPA has concluded that the final rule will not have a significant economic impact on a substantial number of small entities. Based on SBA NAICS-based size definitions and reported sales and employment data, we identified 13 small business, or 43.3 percent of the metal can companies. Small businesses are expected to incur 2 percent of the total industry annualized compliance costs of $58.7 million. We estimate that 10 of the 13 small businesses may experience an impact below 1 percent of total company sales, two small firms may experience impacts between 1 and 3 percent, and one firm may experience an impact above 3 percent of sales. For more information, consult the EIA report entitled “Economic Impact Analysis for the Final Metal Can NESHAP” in Docket No. OAR-2003-0005 (formerly Docket No. A-98-41).
Although the final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of the final rule on small entities. Small entities will be afforded extensive flexibility in demonstrating compliance through pollution prevention rather than the use of add-on control technology. We included compliance options that give small entities flexibility in choosing the most cost effective and least burdensome alternative for their operation. For example, a facility could purchase and use low-HAP coatings and other materials (
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, 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 aggregate, or to the private sector, of $100 million or more in any 1 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 Administrator publishes with the final
The EPA has determined that the final 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 1 year. The maximum total annualized cost of the final rule for any year has been estimated to be less than $58.7 million. Thus, today's final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the EPA has determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's final rule is not subject to the requirements of section 203 of UMRA.
Executive Order 13132 (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 rules 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.”
The final 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. The final rule does not have a significant Federal intergovernmental mandate within the meaning of section 202 of UMRA, and it will not result in costs to small governments that are equal to, or greater than, 1 percent of revenue. Thus, Executive Order 13132 does not apply to the final 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 solicited comments on the proposed rule from State and local officials. A summary of the comments received from two State agencies and EPA's responses to those comments is provided in sections 2.1, 2.5, 2.6, 2.7, and 2.10 of the promulgation BID (EPA-453/R-03-009).
Executive Order 13175 (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.” The final rule does not have tribal implications, as specified in Executive Order 13175. No tribal governments own or operate metal can surface coating operations. Thus, Executive Order 13175 does not apply to the final rule.
Executive Order 13045 (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, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to Executive Order 13045 because it is not economically significant, and it is based on technology performance and not on health or safety risks.
The final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
The National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113, § 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (
The final rule includes the following standards: EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 24, 25, 25A, 204, 204A through F, and 311. Consistent with the NTTAA, EPA conducted searches to identify VCS in addition to these EPA methods/performance specifications. No applicable VCS were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, 204, 204A through 204F, and 311. The search and review results have been documented and are placed in the docket (Docket No. OAR-2003-0005, formerly Docket No. A-98-41) of the final rule.
Three VCS described below were identified as acceptable alternatives to EPA test methods for the purposes of the final rule.
The VCS ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus],” is cited in the final rule for its manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas. That part of ANSI/ASME PTC 19.10-1981, Part 10, is an acceptable alternative to Method 3B.
The two VCS, ASTM D2697-86 (Reapproved 1998), “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings,” and ASTM D6093-97, “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer,” are cited in the final rule as acceptable alternatives to EPA Method 24 to determine the volume fraction of
Six VCS: ASTM D1475-90, ASTM D2369-95, ASTM D3792-91, ASTM D4017-96a, ASTM D4457-85 (Reapproved 91), and ASTM D5403-93 are already incorporated by reference (IBR) in EPA Method 24. Five VCS: ASTM D1979-91, ASTM D3432-89, ASTM D4747-87, ASTM D4827-93, and ASTM PS9-94 are IBR in EPA Method 311.
In addition to the VCS the EPA uses in the final rule, the search for emissions measurement procedures identified 14 other VCS. The EPA determined that 11 of the 14 VCS identified for measuring emissions of the HAP or surrogates subject to emission standards in the final rule were impractical alternatives to EPA test methods for the purposes of the final rule. Therefore, EPA does not intend to adopt those VCS for that purpose. (See Docket No. OAR-2003-0005, formerly Docket No. A-98-41, for further information on the methods.)
Three of the 14 VCS identified in the search were not available at the time the review was conducted for the purposes of the final rule because they are under development by a VCS body: ASME/BSR MFC 13M, “Flow Measurement by Velocity Traverse,” for EPA Method 2 (and possibly 1); ASME/BSR MFC 12M, “Flow in Closed Conduits Using Multiport Averaging Pitot Primary Flowmeters,” for EPA Method 2; and ISO/CD 17895, “Paints and Varnishes—Determination of the Volatile Organic Compound Content of Water-based Emulsion Paints,” for EPA Method 24.
Listed in §§ 63.3521, 63.3531, 63.3541, 63.3543, 63.3544, 63.3545, 63.3551, 63.3553, 63.3554, and 63.3555 of the final rule are the EPA testing methods. Under 40 CFR 63.7(f) and 63.8(f) of subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any of the EPA testing methods, performance specifications, or procedures.
The Congressional Review Act, 5 U.S.C. 801,
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(b) * * *
(24) ASTM D2697-86 (Reapproved 1998), “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings,” IBR approved for §§ 63.3521(b)(1), 63.4141(b)(1), 63.4741(b)(1), 63.4941(b)(1), and 63.5160(c).
(25) ASTM D6093-97, “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer,” IBR approved for §§ 63.3521(b)(1), 63.4141(b)(1), 63.4741(b)(1), 63.4941(b)(1), and 63.5160(c).
(i) * * *
(3) ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus],” IBR approved for §§ 63.865(b), 63.3360(e)(1)(iii), 63.3545(a)(3), 63.3555(a)(3), 63.4166(a)(3), 63.4362(a)(3), 63.4766(a)(3), 63.4965(a)(3), 63.5160(d)(1)(iii), 63.9307(c)(2), and 69.9323(a)(3).
This subpart establishes national emission standards for hazardous air pollutants (NESHAP) for metal can surface coating facilities. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission limitations.
(a) Except as provided in paragraph (c) of this section, the source category to which this subpart applies is surface coating of metal cans and ends (including decorative tins) and metal crowns and closures. It includes the subcategories listed in paragraphs (a)(1) through (4) of this section. Surface coating is the application of coatings to a substrate using, for example, spray guns or dip tanks.
(1)
(2)
(3)
(4)
(b) You are subject to this subpart if you own or operate a new, reconstructed, or existing affected source, as defined in § 63.3482, that uses 5,700 liters (1,500 gallons (gal)) per year, or more, of coatings in the source category defined in paragraph (a) of this section and that is a major source, is located at a major source, or is part of a major source of emissions of hazardous air pollutants (HAP). A major source of HAP emissions is any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit any single HAP at a rate of 9.07 megagrams (Mg) (10 tons) or more per year or any combination of HAP at a rate of 22.68 Mg (25 tons) or more per year.
(c) This subpart does not apply to surface coating that meets the criteria of paragraphs (c)(1) through (5) of this section.
(1) Surface coating conducted at a source that uses only coatings, thinners, and cleaning materials that contain no organic HAP, as determined according to § 63.3521(a).
(2) Surface coating subject to any other NESHAP in this part as of November 13, 2003.
(3) Surface coating and cleaning activities that use research or laboratory equipment or that are part of janitorial, building, and facility maintenance operations.
(4) Surface coating of continuous metal coil that may subsequently be used in manufacturing cans. Subpart SSSS of this part covers surface coating performed on a continuous metal coil substrate.
(5) Surface coating of metal pails, buckets, and drums. Future subpart MMMM of this part will cover surface coating of all miscellaneous metal parts and products not explicitly covered by another subpart.
(a) This subpart applies to each new, reconstructed, and existing affected source.
(b) The affected source is the collection of all of the items listed in paragraphs (b)(1) through (4) of this section that are used for surface coating of metal cans and ends (including decorative tins), or metal crowns or closures:
(1) All coating operations as defined in § 63.3561;
(2) All storage containers and mixing vessels in which coatings, thinners, and cleaning materials are stored or mixed;
(3) All manual and automated equipment and containers used for conveying coatings, thinners, and cleaning materials; and
(4) All storage containers and all manual and automated equipment and containers used for conveying waste materials generated by a coating operation.
(c) An affected source is a new affected source if you commenced its construction after January 15, 2003 by installing new coating equipment. New coating equipment is equipment used to perform metal can surface coating at a facility where no metal can surface coating was previously performed and the construction is of a completely new metal can surface coating source where previously no metal can surface coating source had existed.
(d) An affected source is reconstructed if you meet the criteria as defined in § 63.2.
(e) An affected source is existing if it is not new or reconstructed.
The date by which you must comply with this subpart is called the compliance date. The compliance date for each type of affected source is specified in paragraphs (a) through (c) of this section. The compliance date begins the initial compliance period during which you conduct the initial compliance demonstration described in §§ 63.3520, 63.3530, 63.3540, and 63.3550.
(a) For a new or reconstructed affected source, the compliance date is the applicable date in paragraph (a)(1) or (2) of this section.
(1) If the initial startup of your new or reconstructed affected source is before November 13, 2003, the compliance date is November 13, 2003.
(2) If the initial startup of your new or reconstructed affected source occurs after November 13, 2003, the compliance date is the date of initial startup of your affected source.
(b) For an existing affected source, the compliance date is November 13, 2006.
(c) For an area source that increases its emissions or its potential to emit such that it becomes a major source of HAP emissions, the compliance date is specified in paragraphs (c)(1) and (2) of this section.
(1) For any portion of the source that becomes a new or reconstructed affected source subject to this subpart, the compliance date is the date of initial startup of the affected source or November 13, 2003 whichever is later.
(2) For any portion of the source that becomes an existing affected source subject to this subpart, the compliance date is the date 1 year after the area source becomes a major source or November 13, 2006, whichever is later.
(d) You must meet the notification requirements in § 63.3510 according to the dates specified in that section and in subpart A of this part. Some of the notifications must be submitted before the compliance dates described in paragraphs (a) through (c) of this section.
(a) For a new or reconstructed affected source, you must limit organic HAP emissions to the atmosphere to no more than the emission limit(s) in Table 1 to this subpart that apply to you during each 12-month compliance period, determined according to the requirements in § 63.3521, § 63.3531, or § 63.3541; or if you control emissions with an emissions control system using the control efficiency/outlet concentration option as specified in § 63.3491(d), you must reduce organic HAP emissions to the atmosphere to no more than the limit(s) in Table 3 to this subpart, determined according to the requirements of § 63.3551. If you perform surface coating in more than one subcategory or utilize more than one coating type within a subcategory, then you must meet the individual emission limit(s) for each subcategory and coating type included.
(b) For an existing affected source, you must limit organic HAP emissions to the atmosphere to no more than the emission limit(s) in Table 2 to this subpart that apply to you during each 12-month compliance period, determined according to the requirements in § 63.3521, § 63.3531, or § 63.3541; or if you control emissions with an emissions control system using the control efficiency/outlet concentration option as specified in § 63.3491(d), you must reduce organic HAP emissions to the atmosphere to no more than the limit(s) in Table 3 to this subpart, determined according to the requirements of § 63.3551. If you perform surface coating in more than one subcategory or utilize more than one coating type within a subcategory, then you must meet the individual emission limit(s) for each subcategory and coating type included.
(c) If you perform surface coating in different subcategories as described in § 63.3481(a)(1) through (4), then the coating operations in each subcategory constitute a separate affected source, and you must conduct separate compliance demonstrations for each applicable subcategory and coating type emission limit in paragraphs (a) and (b) of this section and reflect those separate determinations in notifications, reports, and records required by §§ 63.3510, 63.3511, and 63.3512, respectively.
You must include all coatings and thinners used in all surface coating operations within a subcategory or coating type segment when determining whether the organic HAP emission rate is equal to or less than the applicable emission limit in § 63.3490. To make that determination, you must use at least one of the four compliance options listed in paragraphs (a) through (d) of this section. You may apply any of the compliance options to an individual coating operation or to multiple coating operations within a subcategory or coating type segment as a group. You may use different compliance options for different coating operations or at different times on the same coating operation. However, you may not use different compliance options at the same time on the same coating operation. If you switch between compliance options for any coating operation or group of coating operations, you must document that switch as required by § 63.3512(c), and you must report it in the next semiannual compliance report required in § 63.3511.
(a)
(b)
(c)
(d)
(a) For any coating operation(s) on which you use the compliant material option or the emission rate without add-on controls option, you are not required to meet any operating limits.
(b) For any controlled coating operation(s) on which you use the emission rate with add-on controls option or the control efficiency/outlet concentration option, except those for which you use a solvent recovery system and conduct a liquid-liquid material balance according to § 63.3541(i), you must meet the operating limits specified in Table 4 to this subpart. Those operating limits apply to the emission capture and control systems for the coating operation(s) used for purposes of complying with this subpart. You must establish the operating limits during the performance test according to the requirements in § 63.3546 or § 63.3556, and you must meet the operating limits at all times after you establish them.
(c) If you use an add-on control device other than those listed in Table 4 to this subpart or wish to monitor an alternative parameter and comply with a different operating limit, you must apply to the Administrator for approval of alternative monitoring under § 63.8(f).
(a) For any coating operation(s) for which you use the compliant material option or the emission rate without add-on controls option, you are not required to meet any work practice standards.
(b) If you use the emission rate with add-on controls option or the control efficiency/outlet concentration option to comply with the emission limitations, you must develop and implement a work practice plan to minimize organic HAP emissions from the storage, mixing, and conveying of coatings, thinners, and cleaning materials used in, and waste materials generated by, the coating operation(s) for which you use those options; or you must meet an alternative standard as provided in paragraph (c) of this section. The plan must specify practices and procedures to ensure that, at a minimum, the elements specified in paragraphs (b)(1) through (5) of this section are implemented.
(1) All organic-HAP-containing coatings, thinners, cleaning materials, and waste materials must be stored in closed containers.
(2) Spills of organic-HAP-containing coatings, thinners, cleaning materials, and waste materials must be minimized.
(3) Organic-HAP-containing coatings, thinners, cleaning materials, and waste materials must be conveyed from one location to another in closed containers or pipes.
(4) Mixing vessels which contain organic-HAP-containing coatings and other materials must be closed except when adding to, removing, or mixing the contents.
(5) Emissions of organic HAP must be minimized during cleaning of storage, mixing, and conveying equipment.
(c) As provided in § 63.6(g), we, the U.S. Environmental Protection Agency (U.S. EPA), may choose to grant you permission to use an alternative to the work practice standards in this section.
(a) You must be in compliance with the emission limitations in this subpart as specified in paragraphs (a)(1) and (2) of this section.
(1) Any coating operation(s) for which you use the compliant material option or the emission rate without add-on controls option, as specified in § 63.3491(a) and (b), must be in compliance with the applicable emission limit in § 63.3490.
(2) Any coating operation(s) for which you use the emission rate with add-on controls option, as specified in § 63.3491(c), or the control efficiency/outlet concentration option, as specified in § 63.3491(d), must be in compliance with the emission limitations as specified in paragraphs (a)(2)(i) through (iii) of this section.
(i) The coating operation(s) must be in compliance with the applicable emission limit in § 63.3490 at all times.
(ii) The coating operation(s) must be in compliance with the operating limits for emission capture systems and add-on control devices required by § 63.3492 at all times, except for those for which you use a solvent recovery system and conduct liquid-liquid material balances according to § 63.3541(i). The operating limits apply only to capture systems and control devices used for purposes of complying with this subpart.
(iii) The coating operation(s) must be in compliance with the work practice standards in § 63.3493 at all times.
(b) You must always operate and maintain your affected source, including all air pollution control and monitoring equipment you use for purposes of complying with this subpart, according to the provisions in § 63.6(e)(1)(i).
(c) If your affected source uses an emission capture system and add-on control device for purposes of complying with this subpart, you must develop and implement a written startup, shutdown, and malfunction plan (SSMP) according to the provisions in § 63.6(e)(3). The plan must address startup, shutdown, and corrective actions in the event of a malfunction of the emission capture system or the add-on control device. The plan must also address any coating operation
Table 5 to this subpart shows which parts of the General Provisions in §§ 63.1 through 63.15 apply to you.
(a)
(b)
(c)
(1) Company name and address.
(2) Statement by a responsible official with that official's name, title, and signature certifying the truth, accuracy, and completeness of the content of the report.
(3) Date of the report and beginning and ending dates of the reporting period. The reporting period is the initial compliance period described in § 63.3520, § 63.3530, § 63.3540, or § 63.3550 that applies to your affected source.
(4) Identification of the compliance option or options specified in § 63.3491 that you used on each coating operation in the affected source during the initial compliance period.
(5) Statement of whether or not the affected source achieved the emission limitations for the initial compliance period.
(6) If you had a deviation, include the information in paragraphs (c)(6)(i) and (ii) of this section.
(i) A description and statement of the cause of the deviation.
(ii) If you failed to meet the applicable emission limit in § 63.3490, include all the calculations you used to determine the kilogram (kg) organic HAP emitted per liter of coating solids used. You do not need to submit information provided by the materials suppliers or manufacturers or test reports.
(7) For each of the data items listed in paragraphs (c)(7)(i) through (iv) of this section that is required by the compliance option(s) you used to demonstrate compliance with the emission limit, include an example of how you determined the value, including calculations and supporting data. Supporting data can include a copy of the information provided by the supplier or manufacturer of the example coating or material or a summary of the results of testing conducted according to § 63.3521(a), (b), or (c). You do not need to submit copies of any test reports.
(i) Mass fraction of organic HAP for one coating and for one thinner.
(ii) Volume fraction of coating solids for one coating.
(iii) Density for one coating and one thinner, except that if you use the compliant material option, only the example coating density is required.
(iv) The amount of waste materials and the mass of organic HAP contained in the waste materials for which you are claiming an allowance in Equation 1 of § 63.3531.
(8) The calculation of kg organic HAP emitted per liter of coating solids used for the compliance option(s) you used, as specified in paragraphs (c)(8)(i) through (iii) of this section.
(i) For the compliant material option, provide an example calculation of the organic HAP content for one coating, using Equation 1 of § 63.3521.
(ii) For the emission rate without add-on controls option, provide the calculation of the total mass of organic HAP emissions for each month, the calculation of the total volume of coating solids used each month, and the calculation of the 12-month organic HAP emission rate, using Equations 1, 1A through 1C, 2, and 3, respectively, of § 63.3531.
(iii) For the emission rate with add-on controls option, provide the calculation of the total mass of organic HAP emissions for the coatings and thinners used each month, using Equations 1 and 1A through 1C of § 63.3531; the calculation of the total volume of coating solids used each month, using Equation 2 of § 63.3531; the calculation of the mass of organic HAP emission reduction each month by emission capture systems and add-on control devices, using Equations 1 and 1A through 1D of § 63.3541, and Equations 2, 3, and 3A through 3C of § 63.3541, as applicable; the calculation of the total mass of organic HAP emissions each month, using Equation 4 of § 63.3541, as applicable; and the calculation of the 12-month organic HAP emission rate, using Equation 5 of § 63.3541.
(9) For the emission rate with add-on controls option or the control efficiency/outlet concentration option, you must include the information specified in paragraphs (c)(9)(i) through (iv) of this section. The requirements in paragraphs (c)(9)(i) through (iii) of this section do not apply to solvent recovery systems for which you conduct liquid-liquid material balances according to § 63.3541(i).
(i) For each emission capture system, a summary of the data and copies of the calculations supporting the determination that the emission capture system is a PTE or a measurement of the emission capture system efficiency. Include a description of the protocol followed for measuring capture efficiency, summaries of any capture efficiency tests conducted, and any calculations supporting the capture efficiency determination. If you use the data quality objective (DQO) or lower confidence limit (LCL) approach, you must also include the statistical calculations to show you meet the DQO or LCL criteria in appendix A to subpart KK of this part. You do not need to submit complete test reports.
(ii) A summary of the results of each add-on control device performance test. You do not need to submit complete test reports.
(iii) A list of each emission capture system's and add-on control device's operating limits and a summary of the data used to calculate those limits.
(iv) A statement of whether or not you developed and implemented the work practice plan required by § 63.3493.
(a)
(1)
(i) The first semiannual compliance report must cover the first semiannual reporting period which begins the day after the end of the initial compliance period described in § 63.3520, § 63.3530, § 63.3540, or § 63.3550 that applies to your affected source and ends on June 30 or December 31, whichever occurs first following the end of the initial compliance period.
(ii) Each subsequent semiannual compliance report must cover the subsequent semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(iii) Each semiannual compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date is the first date following the end of the semiannual reporting period.
(iv) For each affected source that is subject to permitting regulations pursuant to 40 CFR part 70 or 40 CFR part 71, and if the permitting authority has established dates for submitting semiannual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of the date specified in paragraph (a)(1)(iii) of this section.
(2)
(3)
(i) Company name and address.
(ii) Statement by a responsible official with that official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(iii) Date of report and beginning and ending dates of the reporting period. The reporting period is the 6-month period ending on June 30 or December 31. Note that the information reported for each of the 6 months in the reporting period will be based on the last 12 months of data prior to the date of each monthly calculation.
(iv) Identification of the compliance option or options specified in § 63.3491 that you used on each coating operation during the reporting period. If you switched between compliance options during the reporting period, you must report the beginning and ending dates you used each option.
(v) If you used the emission rate without add-on controls or the emission rate with add-on controls compliance option (§ 63.3491(b) or (c)), the calculation results for each rolling 12-month organic HAP emission rate during the 6-month reporting period.
(4)
(5)
(i) Identification of each coating used that deviated from the emission limit, each thinner used that contained organic HAP, and the dates and time periods each was used.
(ii) The calculation of the organic HAP content (using Equation 1 of § 63.3521) for each coating identified in paragraph (a)(5)(i) of this section. You do not need to submit background data supporting this calculation (
(iii) The determination of mass fraction of organic HAP for each coating and thinner identified in paragraph (a)(5)(i) of this section. You do not need to submit background data supporting this calculation (
(iv) A statement of the cause of each deviation.
(6)
(i) The beginning and ending dates of each compliance period during which the 12-month organic HAP emission rate exceeded the applicable emission limit in § 63.3490.
(ii) The calculations used to determine the 12-month organic HAP emission rate for the compliance period in which the deviation occurred. You must provide the calculations for Equations 1, 1A through 1C, 2, and 3 in § 63.3531; and if applicable, the calculation used to determine mass of organic HAP in waste materials according to § 63.3531(e)(3). You do not need to submit background data supporting these calculations (
(iii) A statement of the cause of each deviation.
(7)
(i) The beginning and ending dates of each compliance period during which the 12-month organic HAP emission rate exceeded the applicable emission limit in § 63.3490.
(ii) The calculations used to determine the 12-month organic HAP emission rate for each compliance period in which a deviation occurred. You must provide the calculation of the total mass of organic HAP emissions for the coatings and thinners used each month, using Equations 1 and 1A through 1C of § 63.3531 and, if applicable, the calculation used to determine mass of organic HAP in waste materials according to § 63.3531(e)(3); the calculation of the total volume of coating solids used each month, using Equation 2 of § 63.3531; the calculation of the mass of organic HAP emission reduction each month by emission capture systems and add-on control devices, using Equations 1 and 1A through 1D of § 63.3541, and Equations 2, 3, and 3A through 3C of § 63.3541, as applicable; the calculation of the total mass of organic HAP emissions each month, using Equation 4 of § 63.3541; and the calculation of the 12-month organic HAP emission rate, using Equation 5 of § 63.3541. You do not need to submit the background data supporting these calculations (
(iii) The date and time that each malfunction started and stopped.
(iv) A brief description of the CPMS.
(v) The date of the latest CPMS certification or audit.
(vi) The date and time that each CPMS was inoperative, except for zero (low-level) and high-level checks.
(vii) The date, time, and duration that each CPMS was out of control, including the information in § 63.8(c)(8).
(viii) The date and time period of each deviation from an operating limit in Table 4 to this subpart; date and time period of any bypass of the add-on control device; and whether each deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(ix) A summary of the total duration of each deviation from an operating limit in Table 4 to this subpart and each bypass of the add-on control device during the semiannual reporting period and the total duration as a percent of the total source operating time during that semiannual reporting period.
(x) A breakdown of the total duration of the deviations from the operating limits in Table 4 to this subpart and bypasses of the add-on control device during the semiannual reporting period into those that were due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(xi) A summary of the total duration of CPMS downtime during the semiannual reporting period and the total duration of CPMS downtime as a percent of the total source operating time during that semiannual reporting period.
(xii) A description of any changes in the CPMS, coating operation, emission capture system, or add-on control device since the last semiannual reporting period.
(xiii) For each deviation from the work practice standards, a description of the deviation; the date and time period of the deviation; and the actions you took to correct the deviation.
(xiv) A statement of the cause of each deviation.
(8)
(i) The date and time that each malfunction started and stopped.
(ii) A brief description of the CPMS.
(iii) The date of the latest certification or audit of the CPMS.
(iv) The date and time that each CPMS was inoperative, except for zero (low-level) and high-level checks.
(v) The date, time, and duration that each CPMS was out-of-control, including the information in § 63.8(c)(8).
(vi) The date and time period of each deviation from an operating limit in Table 4 to this subpart; date and time of any bypass of the add-on control device; and whether each deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(vii) A summary of the total duration of each deviation from an operating limit in Table 4 to this subpart and each bypass of the add-on control device during the semiannual reporting period and the total duration as a percent of the total source operating time during that semiannual reporting period.
(viii) A breakdown of the total duration of the deviations from the operating limits in Table 4 to this subpart and bypasses of the add-on control device during the semiannual reporting period into those that were due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(ix) A summary of the total duration of CPMS downtime during the semiannual reporting period and the total duration of CPMS downtime as a percent of the total source operating time during that semiannual reporting period.
(x) A description of any changes in the CPMS, coating operation, emission capture system, or add-on control device since the last semiannual reporting period.
(xi) For each deviation from the work practice standards, a description of the deviation; the date and time period of the deviation; and the actions you took to correct the deviation.
(xii) A statement of the cause of each deviation.
(b)
(c)
(1) If your actions were consistent with your SSMP, you must include the information specified in § 63.10(d) in the semiannual compliance report required by paragraph (a) of this section.
(2) If your actions were not consistent with your SSMP, you must submit an immediate startup, shutdown, and malfunction report as described in paragraphs (c)(2)(i) and (ii) of this section.
(i) You must describe the actions taken during the event in a report delivered by facsimile, telephone, or other means to the Administrator within 2 working days after starting actions that are inconsistent with the SSMP.
(ii) You must submit a letter to the Administrator within 7 working days after the end of the event, unless you have made alternative arrangements with the Administrator as specified in § 63.10(d)(5)(ii). The letter must contain the information specified in § 63.10(d)(5)(ii).
You must collect and keep records of the data and information specified in this section. Failure to collect and keep
(a) A copy of each notification and report that you submitted to comply with this subpart and the documentation supporting each notification and report.
(b) A current copy of information provided by materials suppliers or manufacturers, such as manufacturer's formulation data, or test data used to determine the mass fraction of organic HAP and density for each coating and thinner and the volume fraction of coating solids for each coating. If you conducted testing to determine mass fraction of organic HAP, density, or volume fraction of coating solids, you must keep a copy of the complete test report. If you use information provided to you by the manufacturer or supplier of the material that was based on testing, you must keep the summary sheet of results provided to you by the manufacturer or supplier. You are not required to obtain the test report or other supporting documentation from the manufacturer or supplier.
(c) For each compliance period, the records specified in paragraphs (c)(1) through (4) of this section.
(1) A record of the coating operations at which you used each compliance option and the time periods (beginning and ending dates and times) you used each option.
(2) For the compliant material option, a record of the calculation of the organic HAP content for each coating, using Equation 1 of § 63.3521.
(3) For the emission rate without add-on controls option, a record of the calculation of the total mass of organic HAP emissions for the coatings and thinners used each month, using Equations 1, 1A through 1C, and 2 of § 63.3531 and, if applicable, the calculation used to determine mass of organic HAP in waste materials according to § 63.3531(e)(3); the calculation of the total volume of coating solids used each month, using Equation 2 of § 63.3531; and the calculation of each 12-month organic HAP emission rate, using Equation 3 of § 63.3531.
(4) For the emission rate with add-on controls option, records of the calculations specified in paragraphs (c)(4)(i) through (v) of this section.
(i) The calculation of the total mass of organic HAP emissions for the coatings and thinners used each month, using Equations 1 and 1A through 1C of § 63.3531 and, if applicable, the calculation used to determine mass of organic HAP in waste materials according to § 63.3531(e)(3).
(ii) The calculation of the total volume of coating solids used each month, using Equation 2 of § 63.3531.
(iii) The calculation of the mass of organic HAP emission reduction by emission capture systems and add-on control devices, using Equations 1 and 1A through 1D of § 63.3541, and Equations 2, 3, and 3A through 3C of § 63.3541, as applicable.
(iv) The calculation of the total mass of organic HAP emissions each month, using Equation 4 of § 63.3541.
(v) The calculation of each 12-month organic HAP emission rate, using Equation 5 of § 63.3541.
(5) For the control efficiency/outlet concentration option, records of the measurements made by the CPMS used to demonstrate compliance. For any coating operation(s) for which you use this option, you do not have to keep the records specified in paragraphs (d) through (g) of this section.
(d) A record of the name and volume of each coating and thinner used during each compliance period.
(e) A record of the mass fraction of organic HAP for each coating and thinner used during each compliance period.
(f) A record of the volume fraction of coating solids for each coating used during each compliance period.
(g) A record of the density for each coating used during each compliance period; and, if you use either the emission rate without add-on controls or the emission rate with add-on controls compliance option, the density for each thinner used during each compliance period.
(h) If you use an allowance in Equation 1 of § 63.3531 for organic HAP contained in waste materials sent to or designated for shipment to a treatment, storage, and disposal facility (TSDF) according to § 63.3531(e)(3) or otherwise managed in accordance with applicable Federal and State waste management regulations, you must keep records of the information specified in paragraphs (h)(1) through (3) of this section.
(1) The name and address of each TSDF or other applicable waste management location to which you sent waste materials for which you use an allowance in Equation 1 of § 63.3531, a statement of which subparts under 40 CFR parts 262, 264, 265, and 266 apply to the facility and the date of each shipment.
(2) Identification of the coating operations producing waste materials included in each shipment and the month or months in which you used the allowance for these materials in Equation 1 of § 63.3531.
(3) The methodology used in accordance with § 63.3531(e)(3) to determine the total amount of waste materials sent to or the amount collected, stored, and designated for transport to a TSDF or other applicable waste management location each month and the methodology to determine the mass of organic HAP contained in these waste materials. That must include the sources for all data used in the determination, methods used to generate the data, frequency of testing or monitoring, and supporting calculations and documentation, including the waste manifest for each shipment.
(i) You must keep records of the date, time, and duration of each deviation.
(j) If you use the emission rate with add-on controls option or the control efficiency/outlet concentration option, you must keep the records specified in paragraphs (j)(1) through (8) of this section.
(1) For each deviation, a record of whether the deviation occurred during a period of startup, shutdown, or malfunction.
(2) The records in § 63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(3) The records required to show continuous compliance with each operating limit specified in Table 4 to this subpart that applies to you.
(4) For each capture system that is a PTE, the data and documentation you used to support a determination that the capture system meets the criteria in Method 204 of appendix M to 40 CFR part 51 for a PTE and has a capture efficiency of 100 percent, as specified in § 63.3544(a).
(5) For each capture system that is not a PTE, the data and documentation you used to determine capture efficiency according to the requirements specified in §§ 63.3543 and 63.3544(b) through (e) including the records specified in paragraphs (j)(5)(i) through (iii) of this section that apply to you.
(i)
(ii)
(iii)
(6) The records specified in paragraphs (j)(6)(i) and (ii) of this section for each add-on control device organic HAP destruction or removal efficiency determination as specified in § 63.3545 or § 63.3555.
(i) Records of each add-on control device performance test conducted according to § 63.3543 or § 63.3553 and § 63.3545 or § 63.3555.
(ii) Records of the coating operation conditions during the add-on control device performance test showing that the performance test was conducted under representative operating conditions.
(7) Records of the data and calculations you used to establish the emission capture and add-on control device operating limits as specified in § 63.3546 or § 63.3556 and to document compliance with the operating limits as specified in Table 4 to this subpart.
(8) A record of the work practice plan required by § 63.3493 and documentation that you are implementing the plan on a continuous basis.
(a) Your records must be kept in a form suitable and readily available for expeditious review, according to § 63.10(b)(1). Where appropriate, the records may be maintained as electronic spreadsheets or as a database.
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must keep each record on site for at least 2 years after the date of each occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1). You may keep the records off site for the remaining 3 years.
You must complete the initial compliance demonstration for the initial compliance period according to the requirements in § 63.3521. The initial compliance period begins on the applicable compliance date specified in § 63.3483 and ends on the last day of the 12th month following the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period extends through the end of that month plus the next 12 months. The initial compliance demonstration includes the calculations according to § 63.3521 and supporting documentation showing that, during the initial compliance period, you used no coating with an organic HAP content that exceeded the applicable emission limit in § 63.3490 and you used no thinners that contained organic HAP.
You may use the compliant material option for any individual coating operation, for any group of coating operations within a subcategory or coating type segment, or for all the coating operations within a subcategory or coating type segment. You must use either the emission rate without add-on controls option, the emission rate with add-on controls option, or the control efficiency/outlet concentration option for any coating operation in the affected source for which you do not use that option. To demonstrate initial compliance using the compliant material option, the coating operation or group of coating operations must use no coating with an organic HAP content that exceeds the applicable emission limit in § 63.3490 and must use no thinner that contains organic HAP as determined according to this section. Any coating operation for which you use the compliant material option is not required to meet the operating limits or work practice standards required in §§ 63.3492 and 63.3493, respectively. You must conduct a separate initial compliance demonstration for each one and two-piece draw and iron can body coating, sheetcoating, three-piece can body assembly coating, and end coating affected source. You must meet all the requirements of this section for the coating operation or group of coating operations using this option. Use the procedures in this section on each coating and thinner in the condition it is in when it is received from its manufacturer or supplier and prior to any alteration (
(a)
(1)
(i) Count each organic HAP that is measured to be present at 0.1 percent by mass or more for Occupational Safety and Health Administration (OSHA)-defined carcinogens as specified in 29 CFR 1910.1200(d)(4) and at 1.0 percent by mass or more for other compounds. For example, if toluene (not an OSHA carcinogen) is measured to be 0.5 percent of the material by mass, you do not have to count it. Express the mass fraction of each organic HAP you count as a value truncated to four places after the decimal point (
(ii) Calculate the total mass fraction of organic HAP in the test material by adding up the individual organic HAP mass fractions and truncating the result to three places after the decimal point (
(2)
(3)
(4)
(5)
(b)
(1)
(2)
(c)
(d)
(e)
(a) For each compliance period, to demonstrate continuous compliance, you must use no coating for which the organic HAP content, determined using Equation 1 of § 63.3521, exceeds the applicable emission limit in § 63.3490 and use no thinner that contains organic HAP, determined according to § 63.3521(a). A compliance period consists of 12 months. Each month after the end of the initial compliance period described in § 63.3520 is the end of a compliance period consisting of that month and the preceding 11 months.
(b) If you choose to comply with the emission limitations by using the compliant material option, the use of any coating or thinner that does not meet the criteria specified in paragraph (a) of this section is a deviation from the emission limitations that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(5).
(c) As part of each semiannual compliance report required by § 63.3511, you must identify the coating operation(s) for which you used the compliant material option. If there were no deviations from the emission limitations in § 63.3490, submit a statement that the coating operation(s) was (were) in compliance with the emission limitations during the reporting period because you used no coating for which the organic HAP content exceeded the applicable
(d) You must maintain records as specified in §§ 63.3512 and 63.3513.
You must complete the initial compliance demonstration for the initial compliance period according to the requirements of § 63.3531. The initial compliance period begins on the applicable compliance date specified in § 63.3483 and ends on the last day of the 12th month following the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period extends through the end of that month plus the next 12 months. You must determine the mass of organic HAP emissions and volume of coating solids used each month and then calculate a 12-month organic HAP emission rate at the end of the initial 12-month compliance period. The initial compliance demonstration includes the calculations according to § 63.3531 and supporting documentation showing that, during the initial compliance period, the organic HAP emission rate was equal to or less than the applicable emission limit in § 63.3490.
You may use the emission rate without add-on controls option for any coating operation, for any group of coating operations within a subcategory or coating type segment, or for all of the coating operations within a subcategory or coating type segment. You must use either the compliant material option, the emission rate with add-on controls option, or the control efficiency/outlet concentration option for any coating operation in the affected source for which you do not use this option. If you use the alternative overall emission limit for a subcategory according to paragraph (i) of this section to demonstrate compliance, however, you must include all coating operations in all coating type segments in the subcategory to determine compliance with the overall limit. To demonstrate initial compliance using the emission rate without add-on controls option, the coating operation or group of coating operations must meet the applicable emission limit in § 63.3490, but is not required to meet the operating limits or work practice standards in §§ 63.3492 and 63.3493, respectively. You must conduct a separate initial compliance demonstration for each one and two-piece draw and iron can body coating, sheetcoating, three-piece can body assembly coating, and end coating affected source. You must meet all the requirements of this section to demonstrate initial compliance with the applicable emission limit in § 63.3490 for the coating operation(s). When calculating the organic HAP emission rate according to this section, do not include any coatings or thinners used on coating operations for which you use the compliant material option, the emission rate with add-on controls option, or the control efficiency/outlet concentration option or coating operations in a different affected source in a different subcategory. Use the procedures in this section on each coating and thinner in the condition it is in when it is received from its manufacturer or supplier and prior to any alteration (
(a)
(b)
(c)
(d)
(e)
(1) Calculate the mass of organic HAP in the coatings used during the month using Equation 1A of this section.
(2) Calculate the mass of organic HAP in the thinners used during the month using Equation 1B of this section.
(3) If you choose to account for the mass of organic HAP contained in waste materials sent or designated for shipment to a hazardous waste TSDF or other applicable waste management location in Equation 1 of this section, then you must determine it according to paragraphs (e)(3)(i) through (iv) of this section.
(i) You may include in the determination only waste materials that are generated by coating operations for which you use Equation 1 of this section and that will be treated or disposed of by a facility regulated as a TSDF under 40 CFR part 262, 264, 265, or 266 or otherwise managed in accordance with applicable Federal and State waste management regulations. The TSDF or other applicable waste management location may be either offsite or onsite. You may not include organic HAP contained in wastewater.
(ii) You must determine either the amount of the waste materials sent to a TSDF, or other applicable waste management location, during the month, or the amount collected and stored during the month and designated for future transport to a TSDF or other applicable waste management location. Do not include in your determination any waste materials sent to a TSDF or other applicable waste management location during a month if you have already included them in the amount collected and stored during that month or a previous month.
(iii) Determine the total mass of organic HAP contained in the waste materials specified in paragraph (e)(3)(ii) of this section.
(iv) You must document the methodology you used to determine the amount of waste materials and the total mass of organic HAP they contain as required in § 63.3512(h). To the extent that waste manifests include this information, they may be used as part of the documentation of the amount of waste materials and mass of organic HAP contained in them.
(f)
(g)
(h)
(i)
You must use the OSEL determined by Equation 4 of this section throughout the 12-month compliance period and may not switch between compliance with individual coating type limits and an OSEL. You may not include coatings in different subcategories in determining your OSEL by this approach. You must keep all records as required by §§ 63.3512 and 63.3513. As part of the Notification of Compliance Status required by § 63.3510, you must identify the subcategory for which you used a calculated OSEL and submit a statement that the coating operation(s) was (were) in compliance with the emission limitations during the initial compliance period because the organic HAP emission rate for the subcategory
(a) To demonstrate continuous compliance, the organic HAP emission rate for each compliance period, determined according to § 63.3531(a) through (g), must be less than or equal to the applicable emission limit in § 63.3490. Alternatively, if you calculate an OSEL for all coating type segments within a subcategory according to § 63.3531(i), the organic HAP emission rate for the subcategory for each compliance period must be less than or equal to the calculated OSEL. You must use the calculated OSEL throughout each compliance period. A compliance period consists of 12 months. Each month after the end of the initial compliance period described in § 63.3530 is the end of a compliance period consisting of that month and the preceding 11 months. You must perform the calculations in § 63.3531(a) through (g) on a monthly basis using data from the previous 12 months of operation.
(b) If the organic HAP emission rate for any 12-month compliance period exceeded the applicable emission limit in § 63.3490 or the OSEL calculated according to § 63.3531(i), this is a deviation from the emission limitations for that compliance period and must be reported as specified in §§ 63.3510(c)(6) and 63.3511(a)(6).
(c) As part of each semiannual compliance report required by § 63.3511, you must identify the coating operation(s) for which you used the emission rate without add-on controls option. If there were no deviations from the emission limitations, you must submit a statement that the coating operation(s) was (were) in compliance with the emission limitations during the reporting period because the organic HAP emission rate for each compliance period was less than or equal to the applicable emission limit in § 63.3490 determined according to § 63.3531(a) through (g), or using the OSEL calculated according to § 63.3531(i).
(d) You must maintain records as specified in §§ 63.3512 and 63.3513.
(a)
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. Except for solvent recovery systems for which you conduct liquid-liquid material balances according to § 63.3541(i), you must conduct a performance test of each capture system and add-on control device according to §§ 63.3543, 63.3544, and 63.3545 and establish the operating limits required by § 63.3492 no later than 180 days after the applicable compliance date specified in § 63.3483. For a solvent recovery system for which you conduct liquid-liquid material balances according to § 63.3541(i), you must initiate the first material balance no later than the applicable compliance date specified in § 63.3483.
(2) You must develop and begin implementing the work practice plan required by § 63.3493 no later than the compliance date specified in § 63.3483.
(3) You must complete the initial compliance demonstration for the initial compliance period according to the requirements of § 63.3541. The initial compliance period begins on the applicable compliance date specified in § 63.3483 and ends on the last day of the 12th month following the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period extends through the end of that month plus the next 12 months. You must determine the mass of organic HAP emissions and volume of coating solids used each month and then calculate a 12-month organic HAP emission rate at the end of the initial 12-month compliance period. The initial compliance demonstration includes the results of emission capture system and add-on control device performance tests conducted according to §§ 63.3543, 63.3544, and 63.3545; results of liquid-liquid material balances conducted according to § 63.3541(i); calculations according to § 63.3541 and supporting documentation showing that, during the initial compliance period, the organic HAP emission rate was equal to or less than the emission limit in § 63.3490(a); the operating limits established during the performance tests and the results of the continuous parameter monitoring required by § 63.3547; and documentation of whether you developed and implemented the work practice plan required by § 63.3493.
(4) You do not need to comply with the operating limits for the emission capture system and add-on control device required by § 63.3492 until after you have completed the performance tests specified in paragraph (a)(1) of this section. Instead, you must maintain a log detailing the operation and maintenance of the emission capture system, add-on control device, and continuous parameter monitors during the period between the compliance date and the performance test. You must begin complying with the operating limits for your affected source on the date you complete the performance tests specified in paragraph (a)(1) of this section. The requirements in this paragraph (a)(4) do not apply to solvent recovery systems for which you conduct liquid-liquid material balances according to the requirements in § 63.3541(i).
(b)
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. Except for solvent recovery systems for which you conduct liquid-liquid material balances according to § 63.3541(i), you must conduct a performance test of each capture system and add-on control device according to the procedures in §§ 63.3543, 63.3544, and 63.3545 and establish the operating limits required by § 63.3492 no later than the compliance date specified in § 63.3483. For a solvent recovery system for which you conduct liquid-liquid material balances according to § 63.3541(i), you must initiate the first material balance no later than the compliance date specified in § 63.3483.
(2) You must develop and begin implementing the work practice plan required by § 63.3493 no later than the compliance date specified in § 63.3483.
(3) You must complete the initial compliance demonstration for the initial compliance period according to the requirements of § 63.3541. The initial compliance period begins on the applicable compliance date specified in § 63.3483 and ends on the last day of the 12th month following the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period extends through the end of that month plus the next 12 months. You must determine the mass of organic HAP emissions and volume of coating solids used each month and then calculate a 12-month organic HAP emission rate at the end of the initial 12-month compliance period. The initial compliance demonstration includes the results of emission capture system and add-on control device performance tests
(a) You may use the emission rate with add-on controls option for any coating operation, for any group of coating operations within a subcategory or coating type segment, or for all of the coating operations within a subcategory or coating type segment. You may include both controlled and uncontrolled coating operations in a group for which you use this option. You must use either the compliant material option, the emission rate without add-on controls option, or the control efficiency/outlet concentration option for any coating operation in the affected source for which you do not use the emission rate with add-on controls option. To demonstrate initial compliance, the coating operation(s) for which you use the emission rate with add-on controls option must meet the applicable emission limitations in § 63.3490. You must conduct a separate initial compliance demonstration for each one and two-piece draw and iron can body coating, sheetcoating, three-piece can body assembly coating, and end coating affected source. You must meet all the requirements of this section to demonstrate initial compliance with the emission limitations. When calculating the organic HAP emission rate according to this section, do not include any coatings or thinners used on coating operations for which you use the compliant material option, the emission rate without add-on controls option, or the control efficiency/outlet concentration option. You do not need to redetermine the mass of organic HAP in coatings or thinners that have been reclaimed onsite and reused in the coating operation(s) for which you use the emission rate with add-on controls option.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1) Calculate the mass of organic HAP in the coatings used in the controlled coating operation, kg, using Equation 1A of this section.
(2) Calculate the mass of organic HAP in the thinners used in the controlled coating operation, kg, using Equation 1B of this section.
(3) Calculate the mass of organic HAP in the cleaning materials used in the controlled coating operation during the month, kg, using Equation 1C of this section.
(4) Calculate the mass of organic HAP in the coatings, thinners, and cleaning materials used in the controlled coating operation during deviations specified in § 63.3542(c) and (d), using Equation 1D of this section.
(i)
(1) For each solvent recovery system, install, calibrate, maintain, and operate according to the manufacturer's specifications, a device that indicates the cumulative amount of volatile organic matter recovered by the solvent recovery system each month.
(2) For each solvent recovery system, determine the mass of volatile organic matter recovered for the month, kg, based on measurement with the device required in paragraph (i)(1) of this section.
(3) Determine the mass fraction of volatile organic matter for each coating and thinner used in the coating operation controlled by the solvent recovery system during the month, kg volatile organic matter per kg coating. You may determine the volatile organic matter mass fraction using Method 24 of 40 CFR part 60, appendix A, or an EPA approved alternative method, or you may use information provided by the manufacturer or supplier of the coating. In the event of any inconsistency between information provided by the manufacturer or supplier and the results of Method 24 of 40 CFR part 60, appendix A, or an approved alternative method, the test method results will take precedence unless, after consultation, a regulated source can demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(4) Determine the density of each coating and thinner used in the coating operation controlled by the solvent recovery system during the month, kg per liter, according to § 63.3531(c).
(5) Measure the volume of each coating, thinner, and cleaning material used in the coating operation controlled by the solvent recovery system during the month, liters.
(6) Each month, calculate the solvent recovery system's volatile organic matter collection and recovery efficiency, using Equation 2 of this section.
(7) Calculate the mass of organic HAP emission reduction for the coating operation controlled by the solvent recovery system during the month using Equation 3 of this section.
(i) Calculate the mass of organic HAP in the coatings used in the coating operation controlled by the solvent recovery system, kg, using Equation 3A of this section.
(ii) Calculate the mass of organic HAP in the thinners used in the coating operation controlled by the solvent
(j)
(k)
(l)
(m)
(n)
(a) To demonstrate continuous compliance with the applicable emission limit in § 63.3490, the organic HAP emission rate for each compliance period, determined according to the procedures in § 63.3541, must be equal to or less than the applicable emission
(b) If the organic HAP emission rate for any 12-month compliance period exceeded the applicable emission limit in § 63.3490, that is a deviation from the emission limitation for that compliance period and must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7).
(c) You must demonstrate continuous compliance with each operating limit required by § 63.3492 that applies to you as specified in Table 4 to this subpart.
(1) If an operating parameter is out of the allowed range specified in Table 4 to this subpart, this is a deviation from the operating limit that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7).
(2) If an operating parameter deviates from the operating limit specified in Table 4 to this subpart, then you must assume that the emission capture system and add-on control device were achieving zero efficiency during the time period of the deviation, unless you have other data indicating the actual efficiency of the emission capture system and add-on control device, and the use of these data has been approved by the Administrator. For the purposes of completing the compliance calculations specified in § 63.3541(h), you must treat the materials used during a deviation on a controlled coating operation as if they were used on an uncontrolled coating operation for the time period of the deviation as indicated in Equation 1 of § 63.3541.
(d) You must meet the requirements for bypass lines in § 63.3547(b) for controlled coating operations for which you do not conduct liquid-liquid material balances. If any bypass line is opened and emissions are diverted to the atmosphere when the coating operation is running, this is a deviation that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7). For the purposes of completing the compliance calculations specified in § 63.3541(h), you must treat the materials used during a deviation on a controlled coating operation as if they were used on an uncontrolled coating operation for the time period of the deviation as indicated in Equation 1 of § 63.3541.
(e) You must demonstrate continuous compliance with the work practice standards in § 63.3493. If you did not develop a work practice plan or you did not implement the plan or you did not keep the records required by § 63.3512(j)(8), that is a deviation from the work practice standards that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7).
(f) As part of each semiannual compliance report required in § 63.3511, you must identify the coating operation(s) for which you used the emission rate with add-on controls option. If there were no deviations from the emission limitations, submit a statement that you were in compliance with the emission limitations during the reporting period because the organic HAP emission rate for each compliance period was less than or equal to the applicable emission limit in § 63.3490, and you achieved the operating limits required by § 63.3492 and the work practice standards required by § 63.3493 during each compliance period.
(g) During periods of startup, shutdown, or malfunction of the emission capture system, add-on control device, or coating operation that may affect emission capture or control device efficiency, you must operate in accordance with the SSMP required by § 63.3500(c).
(h) Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction of the emission capture system, add-on control device, or coating operation that may affect emission capture or control device efficiency are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the SSMP. The Administrator will determine whether deviations that occur during a period you identify as a startup, shutdown, or malfunction are violations according to the provisions in § 63.6(e).
(i) You must maintain records as specified in §§ 63.3512 and 63.3513.
(a) You must conduct each performance test required by § 63.3540 according to the requirements in § 63.7(e)(1) and under the conditions in this section unless you obtain a waiver of the performance test according to the provisions in § 63.7(h).
(1)
(2)
(b) You must conduct each performance test of an emission capture system according to the requirements in § 63.3544. You must conduct each performance test of an add-on control device according to the requirements in § 63.3545.
You must use the procedures and test methods in this section to determine capture efficiency as part of the performance test required by § 63.3540.
(a)
(1) The capture system meets the criteria in Method 204 of appendix M to 40 CFR part 51 for a PTE and directs all the exhaust gases from the enclosure to an add-on control device.
(2) All coatings and thinners used in the coating operation are applied within the capture system, and coating solvent flash-off, curing, and drying occurs within the capture system. For example, the criterion is not met if parts enter the open shop environment when being moved between a spray booth and a curing oven.
(b)
(c)
(1) Either use a building enclosure or construct an enclosure around the coating operation where coatings and thinners are applied and all areas where emissions from these applied coatings and materials subsequently occur, such as flash-off, curing, and drying areas. The areas of the coating operation where capture devices collect emissions for routing to an add-on control device, such as the entrance and exit areas of an oven or spray booth, must also be inside the enclosure. The enclosure must meet the applicable definition of a TTE or building enclosure in Method 204 of appendix M to 40 CFR part 51.
(2) Use Method 204A or 204F of appendix M to 40 CFR part 51 to determine the mass fraction of TVH liquid input from each coating and thinner used in the coating operation during each capture efficiency test run. To make the determination, substitute TVH for each occurrence of the term volatile organic compounds (VOC) in the methods.
(3) Use Equation 1 of this section to calculate the total mass of TVH liquid input from all the coatings and thinners used in the coating operation during each capture efficiency test run.
(4) Use Method 204D or 204E of appendix M to 40 CFR part 51 to measure the total mass, kg, of TVH emissions that are not captured by the emission capture system; they are measured as they exit the TTE or building enclosure during each capture efficiency test run. To make the measurement, substitute TVH for each occurrence of the term VOC in the methods.
(i) Use Method 204D of appendix M to 40 CFR part 51 if the enclosure is a TTE.
(ii) Use Method 204E of appendix M to 40 CFR part 51 if the enclosure is a building enclosure. During the capture efficiency measurement, all organic compound emitting operations inside the building enclosure other than the coating operation for which capture efficiency is being determined must be shut down but all fans and blowers must be operating normally.
(5) For each capture efficiency test run, determine the percent capture efficiency of the emission capture system using Equation 2 of this section.
(6) Determine the capture efficiency of the emission capture system as the average of the capture efficiencies measured in the three test runs.
(d)
(1) Either use a building enclosure or construct an enclosure around the coating operation where coatings and thinners are applied and all areas where emissions from these applied coatings and materials subsequently occur, such as flash-off, curing, and drying areas. The areas of the coating operation where capture devices collect emissions generated by the coating operation for routing to an add-on control device, such as the entrance and exit areas of an oven or a spray booth, must also be inside the enclosure. The enclosure must meet the applicable definition of a TTE or building enclosure in Method 204 of appendix M to 40 CFR part 51.
(2) Use Method 204B or 204C of appendix M to 40 CFR part 51 to measure the total mass, kg, of TVH
(i) The sampling points for Method 204B or 204C of appendix M to 40 CFR part 51 measurement must be upstream from the add-on control device and must represent total emissions routed from the capture system and entering the add-on control device.
(ii) If multiple emission streams from the capture system enter the add-on control device without a single common duct, then the emissions entering the add-on control device must be simultaneously measured in each duct, and the total emissions entering the add-on control device must be determined.
(3) Use Method 204D or 204E of appendix M to 40 CFR part 51 to measure the total mass, kg, of TVH emissions that are not captured by the emission capture system; they are measured as they exit the TTE or building enclosure during each capture efficiency test run. To make the measurement, substitute TVH for each occurrence of the term VOC in the methods.
(i) Use Method 204D of appendix M to 40 CFR part 51 if the enclosure is a TTE.
(ii) Use Method 204E of appendix M to 40 CFR part 51 if the enclosure is a building enclosure. During the capture efficiency measurement, all organic compound emitting operations inside the building enclosure, other than the coating operation for which capture efficiency is being determined, must be shut down but all fans and blowers must be operating normally.
(4) For each capture efficiency test run, determine the percent capture efficiency of the emission capture system using Equation 3 of this section.
(5) Determine the capture efficiency of the emission capture system as the average of the capture efficiencies measured in the three test runs.
(e)
You must use the procedures and test methods in this section to determine the add-on control device emission destruction or removal efficiency as part of the performance test required by § 63.3540. You must conduct three test runs as specified in § 63.7(e)(3) and each test run must last at least 1 hour.
(a) For all types of add-on control devices, use the test methods specified in paragraphs (a)(1) through (5) of this section.
(1) Use Method 1 or 1A of appendix A to 40 CFR part 60, as appropriate, to select sampling sites and velocity traverse points.
(2) Use Method 2, 2A, 2C, 2D, 2F, or 2G of appendix A to 40 CFR part 60, as appropriate, to measure gas volumetric flow rate.
(3) Use Method 3, 3A, or 3B of appendix A to 40 CFR part 60, as appropriate, for gas analysis to determine dry molecular weight. You may also use as an alternative to Method 3B the manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas in ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus]” (incorporated by reference, see § 63.14).
(4) Use Method 4 of appendix A to 40 CFR part 60 to determine stack gas moisture.
(5) Methods for determining gas volumetric flow rate, dry molecular weight, and stack gas moisture must be performed, as applicable, during each test run.
(b) Measure total gaseous organic mass emissions as carbon at the inlet and outlet of the add-on control device simultaneously using either Method 25 or 25A of appendix A to 40 CFR part 60 as specified in paragraphs (b)(1) through (5) of this section. You must use the same method for both the inlet and outlet measurements.
(1) Use Method 25 of appendix A to 40 CFR part 60 if the add-on control device is an oxidizer and you expect the total gaseous organic concentration as carbon to be more than 50 ppm at the control device outlet.
(2) Use Method 25A of appendix A to 40 CFR part 60 if the add-on control device is an oxidizer and you expect the total gaseous organic concentration as carbon to be 50 ppm or less at the control device outlet.
(3) Use Method 25A of appendix A to 40 CFR part 60 if the add-control device is not an oxidizer.
(4) You may use Method 18 of appendix A to 40 CFR part 60 to subtract methane emissions from measured total gaseous organic mass emissions as carbon.
(5) Alternatively, any other test method or data that have been validated according to the applicable procedures in Method 301 of 40 CFR part 63, appendix A, and approved by the Administrator, may be used.
(c) If two or more add-on control devices are used for the same emission stream, then you must measure emissions at the outlet of each device. For example, if one add-on control device is a concentrator with an outlet for the high-volume dilute stream that has been treated by the concentrator, and a second add-on control device is an oxidizer with an outlet for the low-volume concentrated stream that is treated with the oxidizer, you must measure emissions at the outlet of the oxidizer and the high-volume dilute stream outlet of the concentrator.
(d) For each test run, determine the total gaseous organic emissions mass flow rates for the inlet and the outlet of the add-on control device using Equation 1 of this section. If there is more than one inlet or outlet to the add-on control device, you must calculate the total gaseous organic mass flow rate
If M
(e) For each test run, determine the add-on control device organic emissions destruction or removal efficiency, using Equation 2 of this section.
(f) Determine the emission destruction or removal efficiency of the add-on control device as the average of the efficiencies determined in the three test runs and calculated in Equation 2 of this section.
During the performance test required by § 63.3540 and described in §§ 63.3543, 63.3544, and 63.3545, you must establish the operating limits required by § 63.3492 unless you have received approval for alternative monitoring and operating limits under § 63.8(f) as specified in § 63.3492.
(a)
(1) During the performance test, you must monitor and record the combustion temperature at least once every 15 minutes during each of the three test runs. You must monitor the temperature in the firebox of the thermal oxidizer or immediately downstream of the firebox before any substantial heat exchange occurs.
(2) Use the data collected during the performance test to calculate and record the average combustion temperature maintained during the performance test. That average combustion temperature is the minimum operating limit for your thermal oxidizer.
(b)
(1) During the performance test, you must monitor and record the temperature at the inlet to the catalyst bed and the temperature difference across the catalyst bed at least once every 15 minutes during each of the three test runs.
(2) Use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed and the average temperature difference across the catalyst bed maintained during the performance test. The average temperature difference is the minimum operating limit for your catalytic oxidizer.
(3) As an alternative to monitoring the temperature difference across the catalyst bed, you may monitor the temperature at the inlet to the catalyst bed and implement a site-specific inspection and maintenance plan for your catalytic oxidizer as specified in paragraph (b)(4) of this section. During the performance test, you must monitor and record the temperature at the inlet to the catalyst bed at least once every 15 minutes during each of the three test runs. Use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed during the performance test. That is the minimum operating limit for your catalytic oxidizer.
(4) You must develop and implement an inspection and maintenance plan for your catalytic oxidizer(s) for which you elect to monitor according to paragraph (b)(3) of this section. The plan must address, at a minimum, the elements specified in paragraphs (b)(4)(i) through (iii) of this section.
(i) Annual sampling and analysis of the catalyst activity (
(ii) Monthly inspection of the oxidizer system, including the burner assembly and fuel supply lines for problems and, as necessary, adjust the equipment to assure proper air-to-fuel mixtures.
(iii) Annual internal and monthly external visual inspection of the catalyst bed to check for channeling, abrasion, and settling. If problems are found, you must take corrective action consistent with the manufacturer's recommendations and conduct a new performance test to determine destruction efficiency according to § 63.3545.
(c)
(1) You must establish all applicable operating limits according to paragraphs (a) and (b) of this section.
(2) You must submit a valve inspection plan that documents the steps taken to minimize the amount of leakage during the regenerative process. This plan can include, but is not limited to, routine inspection of key parameters of the valve operating system (
(d)
(1) You must monitor and record the total regeneration desorbing gas (
(2) The operating limits for your carbon adsorber are the minimum total desorbing gas mass flow recorded during the regeneration cycle, and the maximum carbon bed temperature recorded after the cooling cycle.
(e)
(1) During the performance test, monitor and record the condenser outlet (product side) gas temperature at least once every 15 minutes during each of the three test runs.
(2) Use the data collected during the performance test to calculate and record the average condenser outlet (product side) gas temperature maintained during the performance test. This average condenser outlet gas temperature is the maximum operating limit for your condenser.
(f)
(1) During the performance test, monitor and record the inlet temperature to the desorption/reactivation zone of the concentrator at least once every 15 minutes during each of the three runs of the performance test.
(2) Use the data collected during the performance test to calculate and record the average temperature. This is the minimum operating limit for the desorption/reactivation zone inlet temperature.
(3) During the performance test, monitor and record an indicator(s) of performance for the desorption/reactivation fan operation at least once every 15 minutes during each of the three runs of the performance test. The indicator can be speed in revolutions per minute (rpm), power in amps, static pressure, or flow rate.
(4) Establish a suitable range for the parameter(s) selected based on the system design specifications, historical data, and/or data obtained concurrent with an emissions performance test. This is the operation limit range for the desorption/reactivation fan operation.
(5) During the performance test, monitor the rotational speed of the concentrator at least once every 15 minutes during each of the three runs of the performance test.
(6) Use the data collected during the performance test to calculate and record the average rotational speed. This is the minimum operating limit for the rotational speed of the concentrator. However, the indicator range for the rotational speed may be changed if an engineering evaluation is conducted and a determination made that the change in speed will not affect compliance with the emission limit.
(7) Develop and implement an inspection and maintenance plan for the concentrator(s) that you elect to monitor according to paragraph (f) of this section. The plan must include, at a minimum, annual sampling and analysis of the absorbent material (
(g)
(1) During the capture efficiency determination required by § 63.3540 and described in §§ 63.3543 and 63.3544, you must monitor and record either the gas volumetric flow rate or the duct static pressure for each separate capture device in your emission capture system at least once every 15 minutes during each of the three test runs at a point in the duct between the capture device and the add-on control device inlet.
(2) Calculate and record the average gas volumetric flow rate or duct static pressure for the three test runs for each capture device. This average gas volumetric flow rate or duct static pressure is the minimum operating limit for that specific capture device.
(a)
(1) The CPMS must complete a minimum of one cycle of operation for each successive 15-minute period. You must have a minimum of four equally spaced successive cycles of CPMS operation in 1 hour.
(2) You must determine the average of all recorded readings for each successive 3-hour period of the emission capture system and add-on control device operation.
(3) You must record the results of each inspection, calibration, and validation check of the CPMS.
(4) You must maintain the CPMS at all times and have available necessary parts for routine repairs of the monitoring equipment.
(5) You must operate the CPMS and collect emission capture system and add-on control device parameter data at all times that a controlled coating operation is operating, except during monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, if applicable, calibration checks and required zero and span adjustments).
(6) You must not use emission capture system or add-on control device parameter data recorded during monitoring malfunctions, associated repairs, out of control periods, or required quality assurance or control activities when calculating data averages. You must use all the data collected during all other periods in calculating the data averages for determining compliance with the emission capture system and add-on control device operating limits.
(7) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the CPMS to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions. Any period for which the monitoring system is out of control and data are not available for required calculations is a deviation from the monitoring requirements.
(b)
(1) Properly install, maintain, and operate a flow indicator that takes a reading at least once every 15 minutes. The flow indicator shall be installed at the entrance to any bypass line.
(2) Secure the bypass line valve in the nondiverting position with a car-seal or a lock-and-key type configuration. A visual inspection of the seal or closure mechanism shall be performed at least once every month to ensure the valve is maintained in the nondiverting position and the vent stream is not diverted through the bypass line.
(c)
(1) For a thermal oxidizer, install a gas temperature monitor in the firebox of the thermal oxidizer or in the duct immediately downstream of the firebox before any substantial heat exchange occurs.
(2) For a catalytic oxidizer, install a gas temperature monitor according to paragraph (c)(2)(i) or (ii) of this section.
(i) If you establish operating limits according to § 63.3546(b)(1) and (2), then you must install the gas temperature monitors both upstream and downstream of the catalyst bed. The temperature monitors must be in the gas stream at the inlet to and the outlet of the catalyst bed to measure the temperature difference across the bed.
(ii) If you establish operating limits according to § 63.3546(b)(3) and (4), then you must install a gas temperature monitor upstream of the catalyst bed. The temperature monitor must be in the gas stream at the inlet to the catalyst bed to measure the temperature.
(3) For all thermal oxidizers and catalytic oxidizers, you must meet the requirements in paragraphs (a) and (c)(3)(i) through (ii) of this section for each gas temperature monitoring device.
(i) Locate the temperature sensor in a position that provides a representative temperature.
(ii) Use a temperature sensor with a minimum accuracy of ±1.2 degrees Celsius or ±1 percent of the temperature value in degrees Celsius, whichever is larger.
(d)
(1) The regeneration desorbing gas mass flow monitor must be an integrating device having an accuracy of ±10 percent capable of recording the total regeneration desorbing gas mass flow for each regeneration cycle.
(2) The carbon bed temperature monitor must have a minimum accuracy of ±1.2 degrees Celsius or ±1 percent of the temperature value in degrees Celsius, whichever is larger, and must be capable of recording the temperature within 15 minutes of completing any carbon bed cooling cycle.
(e)
(1) The gas temperature monitor must have a minimum accuracy of ±1 percent of the temperature recorded in degrees Celsius or ±1.2 degrees Celsius, whichever is greater.
(2) The temperature monitor must provide a continuous gas temperature record.
(f)
(1) You must install a temperature monitor at the inlet to the desorption/reactivation zone of the concentrator. The temperature monitor must meet the requirements in paragraphs (a) and (c)(3) of this section.
(2) You must select an indicator(s) of performance of the desorption/reactivation fan operation, such as speed, power, static pressure, or flow rate.
(3) You must monitor the rotational speed of the concentrator in revolutions per hour.
(4) You must verify the performance of the adsorbent material by examining representative samples and testing adsorbent activity per the manufacturer's recommendations.
(a)
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. You must conduct a performance test of each capture system and add-on control device according to §§ 63.3553, 63.3554, and 63.3555 and establish the operating limits required by § 63.3492 no later than 180 days after the applicable compliance date specified in § 63.3483.
(2) You must develop and begin implementing the work practice plan required by § 63.3493 no later than the compliance date specified in § 63.3483.
(3) You must complete the initial compliance demonstration for the initial compliance period according to the requirements of § 63.3551. The initial compliance period begins on the applicable compliance date specified in § 63.3483 and ends on the last day of the 12th month following the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period extends through the end of that month plus the next 12 months. The initial compliance demonstration includes the results of emission capture system and add-on control device performance tests conducted according to § 63.3553, 63.3554, and 63.3555; the operating limits established during the performance tests and the results of the continuous parameter monitoring required by § 63.3557; and documentation of whether you developed and implemented the work practice plan required by § 63.3493.
(4) You do not need to comply with the operating limits for the emission capture system and add-on control device required by § 63.3492 until after you have completed the performance tests specified in paragraph (a)(1) of this section. Instead, you must maintain a log detailing the operation and maintenance of the emission capture system, add-on control device, and continuous parameter monitors during the period between the compliance date and the performance test. You must begin complying with the operating limits on the date you complete the performance tests specified in paragraph (a)(1) of this section.
(b)
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483.
(2) You must develop and begin implementing the work practice plan required by § 63.3493 no later than the compliance date specified in § 63.3483.
(3) You must complete the initial compliance demonstration for the initial compliance period according to the requirements of § 63.3551. The initial compliance period begins on the applicable compliance date specified in § 63.3483 and ends on the last day of the 12th month following the compliance date. If the compliance date occurs on any day other than the first day of a month, then the initial compliance period extends through the end of that month plus the next 12 months. The initial compliance demonstration includes the results of emission capture system and add-on control device performance tests conducted according to §§ 63.3553, 63.3554, and 63.3555; the operating limits established during the performance tests and the results of the continuous parameter monitoring required by § 63.3557; and
(a) You may use the control efficiency/outlet concentration option for any coating operation, for any group of coating operations within a subcategory or coating type segment, or for all of the coating operations within a subcategory or coating type segment. You must use the compliant material option, the emission rate without add-on controls option, or the emission rate with add-on controls option for any coating operation in the affected source for which you do not use the control efficiency/outlet concentration option. To demonstrate initial compliance, the coating operation(s) for which you use the control efficiency/outlet concentration option must meet the applicable levels of emission reduction in § 63.3490. You must conduct a separate initial compliance demonstration for each one and two-piece draw and iron can body coating, sheetcoating, three-piece can body assembly coating, and end coating affected source. You must meet all the requirements of this section to demonstrate initial compliance with the emission limitations. When calculating the organic HAP emission rate according to this section, do not include any coatings or thinners used on coating operations for which you use the compliant material option, the emission rate without add-on controls option, or the emission rate with add-on controls option. You do not need to redetermine the mass of organic HAP in coatings or thinners that have been reclaimed onsite and reused in the coating operation(s) for which you use the emission rate with add-on controls option.
(b)
(c)
(d)
(a) To demonstrate continuous compliance with the emission limitations using the control efficiency/outlet concentration option, the organic HAP emission rate for each compliance period must be equal to or less than 20 ppmvd or must be reduced by the amounts specified in § 63.3490. A compliance period consists of 12 months. Each month after the end of the initial compliance period described in § 63.3550 is the end of a compliance period consisting of that month and the preceding 11 months.
(b) You must demonstrate continuous compliance with each operating limit required by § 63.3492 that applies to you, as specified in Table 4 to this subpart. If an operating parameter is out of the allowed range specified in Table 4 to this subpart, this is a deviation from the operating limit that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7).
(c) You must meet the requirements for bypass lines in § 63.3557(b). If any bypass line is opened and emissions are diverted to the atmosphere when the coating operation is running, this is a deviation that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7). For purposes of demonstrating compliance, you must treat the materials used during a deviation on a controlled coating operation as if they were used on an uncontrolled coating operation for the time period of the deviation.
(d) You must demonstrate continuous compliance with the work practice standards in § 63.3493. If you did not develop a work practice plan or you did not implement the plan or you did not keep the records required by § 63.3512(j)(8), this is a deviation from the work practice standards that must be reported as specified in §§ 63.3510(b)(6) and 63.3511(a)(7).
(e) As part of each semiannual compliance report required in § 63.3511, you must identify the coating operation(s) for which you used the control efficiency/outlet concentration option. If there were no deviations from the operating limits or work practice standards, submit a statement that you were in compliance with the emission limitations during the reporting period because the organic HAP emission rate for each compliance period was less than 20 ppmvd or was reduced by the amount specified in § 63.3490, and you achieved the operating limits required by § 63.3492 and the work practice standards required by § 63.3493 during each compliance period.
(f) During periods of startup, shutdown, or malfunctions of the emission capture system, add-on control device, or coating operation that may affect emission capture or control device efficiency, you must operate in accordance with the SSMP required by § 63.3500(c).
(g) Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction of the emission capture system, add-on control device, or coating operation that may affect emission capture or control device efficiency are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the SSMP. The Administrator will determine whether deviations that occur during a period you identify as a startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e).
(h) You must maintain records applicable to the control efficiency/outlet concentration option as specified in §§ 63.3512 and 63.3513.
(a) You must conduct each performance test required by § 63.3550 according to the requirements of § 63.7(e)(1) and under the conditions in this section unless you obtain a waiver of the performance test according to the provisions in § 63.7(h).
(1)
(2)
(b) You must conduct each performance test of an emission capture system according to the requirements in § 63.3554. You must conduct each performance test of an add-on control device according to the requirements in § 63.3555.
The capture efficiency of your emission capture system must be 100 percent to use the control efficiency/outlet concentration option. You may assume the capture system efficiency is 100 percent if both of the conditions in paragraphs (a) and (b) of this section are met.
(a) The capture system meets the criteria in Method 204 of appendix M to 40 CFR part 51 for a PTE and directs all the exhaust gases from the enclosure to an add-on control device.
(b) All coatings and thinners used in the coating operation are applied within the capture system, and coating solvent flash-off, curing, and drying occurs within the capture system. This criterion is not met if parts enter the open shop environment when being moved between a spray booth and a curing oven.
You must use the procedures and test methods in this section to determine either the outlet THC emissions or add-on control device emission destruction or removal efficiency as part of the performance test required by § 63.3550. You must conduct three test runs as specified in § 63.7(e)(3), and each test run must last at least 1 hour.
(a) For all types of add-on control devices, use the test methods specified in paragraphs (a)(1) through (5) of this section.
(1) Use Method 1 or 1A of appendix A to 40 CFR part 60, as appropriate, to select sampling sites and velocity traverse points.
(2) Use Method 2, 2A, 2C, 2D, 2F, or 2G of appendix A to 40 CFR part 60, as appropriate, to measure gas volumetric flow rate.
(3) Use Method 3, 3A, or 3B of appendix A to 40 CFR part 60, as appropriate, for gas analysis to determine dry molecular weight. You may also use as an alternative to Method 3B, the manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas in ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus]” (incorporated by reference, see § 63.14).
(4) Use Method 4 of appendix A to 40 CFR part 60 to determine stack gas moisture.
(5) Methods for determining gas volumetric flow rate, dry molecular weight, and stack gas moisture must be performed, as applicable, during each test run.
(b) Measure total gaseous organic mass emissions as carbon at the inlet and outlet of the add-on control device simultaneously using either Method 25 or 25A of appendix A to 40 CFR part 60 as specified in paragraphs (b)(1) through (3) of this section. You must use the same method for both the inlet and outlet measurements.
(1) Use Method 25 of appendix A to 40 CFR part 60 if the add-on control device is an oxidizer, and you expect the total gaseous organic concentration as carbon to be more than 50 ppm at the control device outlet.
(2) Use Method 25A of appendix A to 40 CFR part 60 if the add-on control device is an oxidizer, and you expect the total gaseous organic concentration as carbon to be 50 ppm or less at the control device outlet.
(3) Use Method 25A of appendix A to 40 CFR part 60 if the add-on control device is not an oxidizer.
(4) You may use Method 18 of appendix A to 40 CFR part 60 to subtract methane emissions from measured total gaseous organic mass emissions as carbon.
(5) Alternatively, any other test method or data that have been validated according to the applicable procedures in Method 301 of 40 CFR part 63, appendix A, and approved by the Administrator may be used.
(c) If two or more add-on control devices are used for the same emission stream, then you must measure emissions at the outlet of each device. For example, if one add-on control device is a concentrator with an outlet for the high-volume dilute stream that has been treated by the concentrator and a second add-on control device is an oxidizer with an outlet for the low-volume, concentrated stream that is treated with the oxidizer, you must measure emissions at the outlet of the oxidizer and the high-volume dilute stream outlet of the concentrator.
(d) For each test run, determine the total gaseous organic emissions mass flow rates for the inlet and outlet of the add-on control device using Equation 1 of this section. If there is more than one inlet or outlet to the add-on control device, you must calculate the total gaseous organic mass flow rate using Equation 1 of this section for each inlet and each outlet and then total all of the inlet emissions and total all of the outlet emissions.
If M
(e) For each test run, determine the add-on control device organic emissions destruction or removal efficiency using Equation 2 of this section.
(f) Determine the emission destruction or removal efficiency of the add-on control device as the average of the efficiencies determined in the three test runs and calculated in Equation 2 of this section.
During the performance test required by § 63.3550 and described in §§ 63.3553, 63.3554, and 63.3555, you must establish the operating limits required by § 63.3492 according to this section, unless you have received approval for alternative monitoring and operating limits under § 63.8(f) as specified in § 63.3492.
(a)
(1) During the performance test, you must monitor and record the combustion temperature at least once every 15 minutes during each of the three test runs. You must monitor the temperature in the firebox of the thermal oxidizer or immediately downstream of the firebox before any substantial heat exchange occurs.
(2) Use the data collected during the performance test to calculate and record the average combustion temperature maintained during the performance test. That average combustion temperature is the minimum operating limit for your thermal oxidizer.
(b)
(1) During the performance test, you must monitor and record the temperature at the inlet to the catalyst bed and the temperature difference across the catalyst bed at least once every 15 minutes during each of the three test runs.
(2) Use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed and the average temperature difference across the catalyst bed maintained during the performance test. The average temperature difference is the minimum operating limit for your catalytic oxidizer.
(3) As an alternative to monitoring the temperature difference across the catalyst bed, you may monitor the temperature at the inlet to the catalyst bed and implement a site-specific inspection and maintenance plan for your catalytic oxidizer as specified in paragraph (b)(4) of this section. During the performance test, you must monitor and record the temperature at the inlet to the catalyst bed at least once every 15 minutes during each of the three test runs. Use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed during the performance test. That is the minimum operating limit for your catalytic oxidizer.
(4) You must develop and implement an inspection and maintenance plan for your catalytic oxidizer(s) for which you elect to monitor according to paragraph (b)(3) of this section. The plan must address, at a minimum, the elements specified in paragraphs (b)(4)(i) through (iii) of this section.
(i) Annual sampling and analysis of the catalyst activity (
(ii) Monthly inspection of the oxidizer system, including the burner assembly and fuel supply lines for problems and, as necessary, adjust the equipment to assure proper air-to-fuel mixtures.
(iii) Annual internal and monthly external visual inspection of the catalyst bed to check for channeling, abrasion, and settling. If problems are found, you must take corrective action consistent with the manufacturer's recommendations and conduct a new performance test to determine destruction efficiency according to § 63.3555.
(c)
(1) You must establish all applicable operating limits according to paragraphs (a) and (b) of this section.
(2) You must submit a valve inspection plan that documents the steps taken to minimize the amount of leakage during the regenerative process. This plan can include, but is not limited to, routine inspection of key parameters of the valve operating system (
(d)
(1) You must monitor and record the total regeneration desorbing gas (
(2) The operating limits for your carbon adsorber are the minimum total desorbing gas mass flow recorded during the regeneration cycle and the maximum carbon bed temperature recorded after the cooling cycle.
(e)
(1) During the performance test, monitor and record the condenser outlet (product side) gas temperature at least once every 15 minutes during each of the three test runs.
(2) Use the data collected during the performance test to calculate and record the average condenser outlet (product side) gas temperature maintained during the performance test. This average condenser outlet gas temperature is the maximum operating limit for your condenser.
(f)
(1) During the performance test, monitor and record the inlet temperature to the desorption/reactivation zone of the concentrator at least once every 15 minutes during each of the three runs of the performance test.
(2) Use the data collected during the performance test to calculate and record the average temperature. This is the minimum operating limit for the desorption/reactivation zone inlet temperature.
(3) During the performance test, monitor and record an indicator(s) of performance for the desorption/reactivation fan operation at least once every 15 minutes during each of the three runs of the performance test. The indicator can be speed in rpm, power in amps, static pressure, or flow rate.
(4) Establish a suitable range for the parameter(s) selected based on the system design specifications, historical data, and/or data obtained concurrent with an emissions performance test. This is the operation limit range for the desorption/reactivation fan operation.
(5) During the performance test, monitor the rotational speed of the
(6) Use the data collected during the performance test to calculate and record the average rotational speed. This is the minimum operating limit for the rotational speed of the concentrator. However, the indicator range for the rotational speed may be changed if an engineering evaluation is conducted and a determination made that the change in speed will not affect compliance with the emission limit.
(7) Develop and implement an inspection and maintenance plan for the concentrator(s) that you elect to monitor according to paragraph (f) of this section. The plan must include, at a minimum, annual sampling and analysis of the absorbent material (
(g)
(a)
(1) The CPMS must complete a minimum of one cycle of operation for each successive 15-minute period. You must have a minimum of four equally spaced successive cycles of CPMS operation in 1 hour.
(2) You must determine the average of all recorded readings for each successive 3-hour period of the emission capture system and add-on control device operation.
(3) You must record the results of each inspection, calibration, and validation check of the CPMS.
(4) You must maintain the CPMS at all times and have available necessary parts for routine repairs of the monitoring equipment.
(5) You must operate the CPMS and collect emission capture system and add-on control device parameter data at all times that a controlled coating operation is operating, except during monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, if applicable, calibration checks and required zero and span adjustments).
(6) You must not use emission capture system or add-on control device parameter data recorded during monitoring malfunctions, associated repairs, out of control periods, or required quality assurance or control activities when calculating data averages. You must use all the data collected during all other periods in calculating the data averages for determining compliance with the emission capture system and add-on control device operating limits.
(7) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the CPMS to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions. Any period for which the monitoring system is out of control and data are not available for required calculations is a deviation from the monitoring requirements.
(b)
(1) Properly install, maintain, and operate a flow indicator that takes a reading at least once every 15 minutes. The flow indicator shall be installed at the entrance to any bypass line.
(2) Secure the bypass line valve in the nondiverting position with a car-seal or lock-and-key type configuration. A visual inspection of the seal or closure mechanism shall be performed at least once every month to ensure the valve is maintained in the nondiverting position, and the vent stream is not diverted through the bypass line.
(c)
(1) For a thermal oxidizer, install a gas temperature monitor in the firebox of the thermal oxidizer or in the duct immediately downstream of the firebox before any substantial heat exchange occurs.
(2) For a catalytic oxidizer, install a gas temperature monitor according to paragraph (c)(2)(i) or (ii) of this section.
(i) If you establish operating limits according to § 63.3556(b)(1) and (2), then you must install the gas temperature monitors both upstream and downstream of the catalyst bed. The temperature monitors must be in the gas stream at the inlet to and the outlet of the catalyst bed to measure the temperature difference across the bed.
(ii) If you establish operating limits according to § 63.3556(b)(3) and (4), then you must install a gas temperature monitor upstream of the catalyst bed. The temperature monitor must be in the gas stream at the inlet to the catalyst bed to measure the temperature.
(3) For all thermal oxidizers and catalytic oxidizers, you must meet the requirements in paragraphs (a) and (c)(3)(i) through (ii) of this section for each gas temperature monitoring device.
(i) Locate the temperature sensor in a position that provides a representative temperature.
(ii) Use a temperature sensor with a minimum accuracy of ±1.2 degrees Celsius or ±1 percent of the temperature value in degrees Celsius, whichever is larger.
(d)
(1) The regeneration desorbing gas mass flow monitor must be an integrating device having an accuracy of ±10 percent capable of recording the total regeneration desorbing gas mass flow for each regeneration cycle.
(2) The carbon bed temperature monitor must have a minimum accuracy of ±1.2 degrees Celsius or ±1 percent of the temperature value in degrees Celsius, whichever is larger, and must be capable of recording the temperature within 15 minutes of completing any carbon bed cooling cycle.
(e)
(1) The gas temperature monitor must have a minimum accuracy of ±1.2 degrees Celsius or ±1 percent of the temperature value in degrees Celsius, whichever is larger.
(2) The temperature monitor must provide a continuous gas temperature record.
(f)
(1) You must install a temperature monitor at the inlet to the desorption/reactivation zone of the concentrator. The temperature monitor must meet the requirements in paragraphs (a) and (c)(3) of this section.
(2) You must select an indicator(s) of performance of the desorption/reactivation fan operation, such as speed, power, static pressure, or flow rate.
(3) You must monitor the rotational speed of the concentrator in revolutions per hour.
(4) You must verify the performance of the adsorbent material by examining representative samples and testing adsorbent activity per the manufacturer's recommendations.
(a) This subpart can be implemented and enforced by us, the United States Environmental Protection Agency (U.S. EPA), or a delegated authority such as your State, local, or tribal agency. If the Administrator has delegated authority to your State, local, or tribal agency, then that agency, in addition to the EPA, has the authority to implement and enforce this subpart. You should contact your EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your State, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under 40 CFR part 63, subpart E, the authorities contained in paragraph (c) of this section are retained by the EPA Administrator and are not transferred to the State, local, or tribal agency.
(c) The authorities that will not be delegated to State, local, or tribal agencies are listed in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the work practice standards in § 63.3493.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major alternatives to monitoring under § 63.8(f) and as defined in § 63.90.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
Terms used in this subpart are defined in the CAA, in 40 CFR 63.2, and in this section as follows:
(1) Fails to meet any requirement or obligation established by this subpart including but not limited to any emission limit, operating limit, or work practice standard;
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emission limit, operating limit, or work practice